Version 1.2 (March 6, 2019)
These Terms of Service (this "Agreement") contains the terms and conditions that govern access to and use of its serverless operations console (the "Services") and is an agreement between Stackery, Inc., a Delaware corporation ("Stackery") and you or the entity you represent ("Customer"). This Agreement takes effect when Customer clicks an "I Accept" button or check box presented with these terms or when you use any of the Services (the "Effective Date"). Customer represents to Stackery that Customer is lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to Stackery that you have legal authority. Stackery and Customer will be referred to individually as a "Party" and collectively as the "Parties."
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Access Credentials" means the user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Customer Data" means, other than Resultant Data, information, data and other content, in any form or medium, that is collected or received, directly or indirectly from Customer by or through the Services, including all data configurations and resources, such as CloudFormation templates, which Stackery creates, provisions, or produces into the Customer account that contain Customer information or content. Customer Data does not include the code and resources created by Stackery for the purpose of delivering Stackery's software, services, and access to the Customer account.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
"Confidential Information" means all information (whether oral, written, electronic or otherwise) disclosed by one Party or its agents (collectively the "Disclosing Party") that is identified as confidential at the time of disclosure or that the receiving party (the "Receiving Party") knows or reasonably should have known is the confidential or proprietary information of the Disclosing Party. Confidential Information includes, but is not limited to, trade secrets, technology, information pertaining to business operations and strategies, personnel information, financial data, and information pertaining to customers, pricing, and marketing. Confidential Information includes Stackery Materials and non-public Customer Data. Confidential Information does not include information that: (a) was already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information directly or indirectly from or on behalf of the Disclosing Party; (b) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party's Confidential Information; (c) was or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party or any of its Representatives; or (d) was received by the Receiving Party from a third party who was not, at the time, under any obligation to the Disclosing Party or any other Person to maintain the confidentiality of such information.
"End User" means any individual that directly or indirectly through another user: (a) accesses or uses Customer Data; or (b) otherwise accesses or uses the Services under Customer's account.
"Harmful Code" means any: (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise deprive Customer of its lawful right to use such Software.
"Intellectual Property Rights" means all or any of the following: (a) patents, patent disclosures, and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases; (d) trade secrets, know-how, and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable Law in any jurisdiction throughout the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local or foreign government, or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Stackery Materials" means the Service Software, Stackery Systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Stackery or any Subcontractor (defined in Section 2.4) in connection with the Services or otherwise comprise or relate to the Services or Stackery Systems. For the avoidance of doubt, Stackery Materials include Resultant Data, any information, data or other content derived from Stackery's monitoring of Customer's access to or use of the Services, and the code and resources created by Stackery for the purpose of delivering Stackery's software, services, and access to the Customer account but do not include Customer Data.
"Stackery Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Stackery or any Subcontractor.
"Stackery Site" means http://www.stackery.io and any successor or related site designated by us.
"Stackery Systems" means the information technology infrastructure used by or on behalf of Stackery in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Stackery or through the use of third-party services.
"Order" means the Subscription Order that Customer submitted online or the Subscription Order Form Customer executed in connection with the Services. Capitalized terms used in the Order and not otherwise defined therein shall have the meanings ascribed to them in this Agreement.
"Permitted Use" means any use of the Services by Customer in conformance with this Agreement.
"Person" an individual, corporation, partnership, limited liability company, association, joint stock company, joint venture, estate, trust, unincorporated organization, or other entity or organization, or a local, state, United States, or foreign governmental or public body or authority, or any agency or subdivision thereof.
"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content. "Processing" and "Processed" have correlative meanings.
"Representatives" means, with respect to a Party, that Party's employees, officers, independent contractors, service providers, subcontractors, and legal advisors.
"Resultant Data" means information, data, and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis, or further Processing of such information, data, or content.
"Service Software" means the Stackery software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that Stackery provides remote access to and use of as part of the Services.
"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Stackery.
1. Services.
Services. Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, during the Term, Stackery will use commercially reasonable efforts to provide to Customer the Services described in the applicable Order in accordance with the terms and conditions hereof, except for: (a) scheduled downtime; (b) service downtime or degradation due to a Force Majeure Event; (c) any other circumstances beyond Stackery's reasonable control, including Customer's use of Third Party Materials, misuse of the Services, or use of the Services other than in compliance with the express terms of this Agreement; and (d) any suspension or termination of Customer's access to or use of the Services as permitted by this Agreement.
Availability of the Services. While Stackery will operate the Services consistent with industry standards, Stackery does not guarantee, represent or warrant that Customer's access to any of the Services will be uninterrupted or error-free. In addition, while Stackery makes reasonable efforts to ensure that all Customer Data and/or information submitted by Customer to Stackery will be secure, Stackery does not guarantee that the Services will be free from loss, corruption, attack, or Harmful Code, or from interference, hacking or other security intrusions. Customer should be sure to back up Customer Data periodically to ensure that all Customer Data is available in the event of any loss or damage.
Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties: (a) Stackery has and will retain sole control over the operation, provision, maintenance, and management of the Services and Stackery Materials, including the: (i) Stackery Systems; (ii) locations where any of the Services are performed; (iii) selection, deployment, modification, and replacement of the Service Software; and (iv) performance of Services maintenance, upgrades, corrections, and repairs; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Stackery Materials by any Person by or through the Customer Systems or any other means controlled by Customer, including any: (i) information, instructions, or materials provided by any of them to the Services or Stackery; (ii) results obtained from any use of the Services or Stackery Materials; and (iii) conclusions, decisions, or actions based on such use.
Changes. Stackery reserves the right, in its sole discretion, to make any changes to the Services and Stackery Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Stackery's services to its clients, (ii) the competitive strength of or market for Stackery's services, or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. Stackery may also impose limits on the use of or access to certain features or portions of the Services, in any case without notice or liability.
Suspension or Termination of Services. Stackery may suspend, terminate, or otherwise deny Customer's or any other Person's access to or use of all or any part of the Services or Stackery Materials, without incurring any resulting obligation or liability, if: (a) Stackery receives a judicial or other governmental demand, order, or request that requires Stackery to do so; or (b) Stackery believes, in its sole discretion, that: (i) Customer has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of Stackery's other rights or remedies, whether at law, in equity, or under this Agreement.
Authorization. Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Stackery hereby authorizes Customer during the Term to access and use the Services and such Stackery Materials as Stackery may supply or make available to Customer solely for the Permitted Use and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.
Reservation of Rights. Except for the licenses granted in this Section, nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Stackery Materials, Third Party Materials, Customer Data, or either Party's trademarks or logos. All right, title, and interest in and to the Services, the Stackery Materials, and the Third Party Materials are and will remain with Stackery and the respective rights holders in the Third Party Materials. Except for the license granted in Section 8.3, all right, title, and interest in and to the Customer Data will remain with Customer.
Authorization Limitations and Restrictions. Customer will not, and will not permit any other Person to, access or use the Services or Stackery Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Customer will not, except as this Agreement expressly permits: (a) Share Access Credentials or permit any Person to access or use Access Credentials other than the Person duly registered for such use with Stackery; (b) copy, modify, or create derivative works or improvements of the Services or Stackery Materials; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Stackery Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Services or Stackery Materials or access or use any of the Services or Stackery Materials except through the use of then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Services or Stackery Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Stackery Systems, or Stackery's provision of services to any third party, in whole or in part; (g) access or use the Services or Stackery Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right Stackery or any third party or that violates any applicable Law; (h) access or use the Services or Stackery Materials for purposes of competitive analysis of the Services or Stackery Materials, the development, provision, or use of a competing software service or product, or any other purpose that is to Stackery's detriment or commercial disadvantage; (i) access or use the Services or Stackery Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or property damage; or (j) otherwise access or use the Services or Stackery Materials beyond the scope of the authorization granted under this Section.
Customer Obligations. Customer will at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as Stackery may reasonably request to enable Stackery to exercise its rights and perform its obligations under and in connection with this Agreement. Stackery is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer will immediately: (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Stackery of any such actual or threatened activity.
Security. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (c) Customer Systems ; (d) the security and use of Customer's Access Credentials; and (e) all access to and use of the Services and Stackery Materials directly or indirectly by or through the Customer Systems or its Access Credentials, with or without Customer's knowledge or consent. Customer will be responsible for all processes necessary to securely administer the distribution and use of all Access Credentials, protect against any unauthorized access to or use of the Services, and control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
2. Fees; Payment Terms.
Fees. Customer will pay Stackery the applicable fees (the "Fees") for use of the Services as posted on Stackery's Public Price List, as described in the applicable Order, or as my otherwise be agreed in writing. Monthly pricing may be charged annually in advance. Stackery may change the Fee it charges for Services and/or the Services offered for any pricing tier at any time. The then current Fee for the Services and Services offered for each pricing tier will be a posted on Stackery's Public Price List. Customer is responsible for any metered fees it accrues for Services which include a metered fee, charged to Customer each month after the calendar month incurred, unless otherwise provided in an Order. Payments for Services are not refundable.
Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Stackery's income.
Payment. If credit has been extended to You by Us, all payments under this Agreement are due within thirty (30) days days after the invoice date, or as otherwise provided in an Order. Past due amounts will incur interest until paid at the lesser of: (a) 1.5% per month; and (b) the highest rate permitted by law. All amounts will be invoiced and paid in U.S. Dollars. Customer agrees to reimburse Stackery for all expenses, including reasonable attorneys' fees, incurred by Stackery in the collection of any overdue and unpaid invoices.
No Deductions or Setoffs. All amounts payable to Stackery under this Agreement will be paid by Customer to Stackery in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
Billing Disputes. For Customer's that are billed, if Customer believes that Stackery has billed Customer incorrectly, Customer must contact Stackery no later than 60 days after the closing date on the first billing statement in which the error or problem appeared to receive an adjustment or credit. Failure by Customer to contact Stackery within 60 days will be deemed acceptance by Customer of the accuracy of said billing statement. Inquiries should be directed to Stackery's customer support department.
3. Intellectual Property Rights.
Services and Stackery Materials. All right, title, and interest in and to the Services and Stackery Materials, including all Intellectual Property Rights therein, are and will remain with Stackery and the respective rights holders in the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Services or Stackery Materials (including Third-Party Materials) except as expressly set forth herein or the applicable third-party license. All other rights in and to the Services and Stackery Materials (including Third-Party Materials) are expressly reserved by Stackery and the respective third-party licensors. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Stackery an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
Customer Data. As between Customer and Stackery, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in this subsection. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Stackery, its Subcontractors, and the Stackery Personnel as are necessary or useful to perform the Services; and (b) to Stackery as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.
Identification. Customer agrees to be identified as a customer of Stackery and Customer agrees that Stackery may refer to Customer by name, trade name and trademark, if applicable, and may briefly describe Customer's business in Stackery's marketing materials and the Stackery Site.
4. Confidentiality.
The Parties acknowledge that, in connection with this Agreement, each Party (the "Receiving Party") may obtain Confidential Information of the other Party (the "Disclosing Party"). Such Confidential Information will not be used or disclosed by the Receiving Party except as specifically authorized, or as necessary to perform the Services. The Receiving Party agrees to keep such Confidential Information confidential and to accord such Confidential Information the same standards and procedures it uses to protect its own confidential business information (but not less than reasonable care), including limiting access to its Representatives on a need-to-know basis and only after such Persons have been informed of and are bound to maintain confidentiality. Nothing in this Agreement will prohibit or restrict Receiving Party's right to develop, use, or market products or services similar to or competitive with those of the Disclosing Party as disclosed in the Confidential Information as long as doing so will not thereby breach this Agreement. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
5. Term and Termination.
Term. The initial term of this Agreement begins as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect as provided in the applicable Order (or if no term is so provided, until 12 months from such date) (the "Initial Term"). This Agreement will automatically renew for additional successive 12-month terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a "Renewal Term" and, together with the Initial Term, the "Term"). Unless otherwise provided as applicable to Renewal Term(s) in an applicable Order, the annual Fees for each Renewal Term will be set at the Services price contained in the Stackery Public Price List as on the expiration of the then-current term.
Termination. Either Party may terminate this Agreement upon written notice, effective immediately, if: (a) a petition under any bankruptcy law is filed by or against the other Party; (b) a receiver is appointed for the other Party's assets; (c) the other Party becomes insolvent or takes advantage of any insolvency or any similar statute; (d) the other Party is in material breach of this Agreement and such breach remains uncured, if curable, for 30 days after written notice of the breach; or (e) the other Party breaches any of its obligations hereunder. Further, Stackery may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Stackery's delivery of written notice thereof; or (ii) breaches any of its obligations hereunder.
Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement (a) all rights, licenses, consents, and authorizations granted by either Party to the other under this Agreement will immediately terminate; (b) Customer will immediately cease all use of any Services or Stackery Materials and (i) promptly return to Stackery, or at Stackery's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Stackery Materials or Stackery's Confidential Information; and (iii) if requested by Stackery, an authorized officer of Customer will certify to Stackery in writing that Customer has complied with the requirements of this Section; (c) notwithstanding anything to the contrary in this Agreement, Stackery may retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course and all such Customer Data will remain subject to all confidentiality, security, and other applicable requirements of this Agreement; (d) Stackery may disable all Customer access to the Services and Stackery Materials; (e) Stackery will make all Customer Data available to Customer for electronic retrieval by Customer at Customer's expense for a period of 30 days, but thereafter Stackery may, but is not obligated to, delete stored Customer Data; and (f) Customer will pay in full for the Services up to and including the last day on which the Services are provided.
Surviving Terms. The provisions of any other of this Agreement that by its nature operates beyond termination or expiration, will survive and continue in full force and effect after any termination or expiration of this Agreement.
6. Warranties, Indemnification, and Limits of Liability.
Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; (c) this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (d) it will perform its obligations under this Agreement in full compliance with all applicable laws, rules, and regulations, including, but not limited to applicable data security and privacy laws. Customer represents, warrants and covenants to Stackery that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Stackery and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other right of any third party or violate any applicable Law.
Indemnification. Customer will indemnify, defend, and hold harmless Stackery and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns from and against any and all Losses that arises out of or relates to any: (a) Customer Data, including any Processing of Customer Data by or on behalf of Stackery in accordance with this Agreement; (b) any other materials or information (including any personal information, documents, data, specifications, software, content, or technology) provided by or on behalf of Customer, including Stackery's compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Stackery; (c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer in connection with this Agreement.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 1.1 and SECTION 1.2, ALL SERVICES AND STACKERY MATERIALS ARE PROVIDED "AS IS" AND STACKERY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND STACKERY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, STACKERY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR STACKERY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. STACKERY EXPRESSLY DISCLAIMS AND IS NOT RESPONSIBLE FOR ALL DECISIONS OR ANALYSIS MADE BY ANY PERSON BASED UPON THE USE OR RESULTS OF THE SERVICES OR STACKERY MATERIALS. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Limitations of Liability. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE LIABILITY OF STACKERY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY AND OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEES ACTUALLY RECEIVED BY STACKERY IN THE TWELVE MONTHS PRECEDING THE DATE OF THE OCCURRENCE OR EVENT UNDERLYING THE CLAIM.
7. Miscellaneous.
Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God, flood, fire, explosion, war, terrorism, invasion, riot, other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, or national or regional emergency, in each case, provided that such event is outside the reasonable control of the affected Party.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever. Stackery retains absolute discretion in the manner and means of carrying out the Services, and Customer will have no obligation to direct or control the working conditions of Stackery's employees or Subcontractors.
Notice. To Customer: Stackery may provide any notice to Customer under this Agreement by: (i) posting a notice on the Stackery Site; or (ii) sending a message to the email address then associated with Customer's account. Notices Stackery provides by posting on the Stackery Site will be effective upon posting and notices Stackery provides by email will be effective when Stackery sends the email. It is Customer's responsibility to keep Customer's email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer's account when Stackery sends the email, whether or not Customer actually receives the email. To Stackery: To give Stackery notice under this Agreement, Customer must contact Stackery as follows: by personal delivery, overnight courier or registered or certified mail to Stackery Inc., 424 SW 4th Avenue, Suite 200, Portland, Oregon 97204. Stackery may update the address for notices to Stackery by posting a notice on the Stackery Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent provided evidence of receipt is complete. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. No terms or conditions of any purchase order or similar document provided by Customer to Stackery will constitute a part or amendment of this Agreement or be binding on Stackery for any purpose unless expressly accepted by Stackery in writing.
Assignment. Customer may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, whether voluntarily, involuntarily, by operation of law or otherwise, without Stackery's prior written consent. Any assignment in violation of this Section shall be null and void, ab initio. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
Amendment and Modification. Stackery may modify this Agreement (at any time by posting a revised version on the Stackery Site or by otherwise notifying Customer in accordance with the terms hereof. The modified terms will become effective upon posting or, if Stackery notifies Customer by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is Customer's responsibility to check the Stackery Site regularly for modifications to this Agreement. Stackery last modified this Agreement on the date listed at the beginning of this Agreement. Stackery may also modify this Agreement if so indicated in an Order. The right granted herein are conditioned upon the acceptance of the terms hereof to the exclusion of all other terms, and no other or additional terms shall apply, unless so provided in writing signed by the Parties. Customer expressly agrees by Customer's use of the Services that no such other, different or additional terms or conditions shall apply, notwithstanding any statements to the contrary included in any purchase order, confirmation, or similar form (other than an Order or other signed writing between the Parties), and regardless of whether Stackery accepts payments referenced therein which shall not constitute acceptance of additional terms and conditions.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Governing Law; Submission to Jurisdiction; Attorneys' Fees; Waiver of Jury Trial. This Agreement and all related documents are governed by, and construed in accordance with, the laws of the State of Oregon, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Oregon. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be federal or state court located in Multnomah County, Oregon, and the Parties irrevocably consent to the personal jurisdiction of such courts. Each Party hereby waives any objection or defense of personal jurisdiction or forum non-conveniens it may otherwise possess. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated hereby.