THIS MASTER SUBSCRIPTION AGREEMENT ("MSA") IS A
LEGALLY BINDING CONTRACT BETWEEN YOUR ENTITY
SPECIFIED IN THE APPLICABLE ORDER AS A CUSTOMER
(“CUSTOMER”) AND THE STACKSTATE ENTITY SPECIFIED IN
THE APPLICABLE ORDER (“STACKSTATE”) THAT GOVERNS
THE SOFTWARE AS A SERVICE AND PROFESSIONAL
SERVICES. CUSTOMER AGREES THAT THIS MSA,
INCLUDING THE ATTACHMENTS HERETO, ANY APPLICABLE
ORDERS, STATEMENTS OF WORK, AND ANY APPLICABLE
DATA PROTECTION AGREEMENTS, CONSTITUTES THE
ENTIRE AGREEMENT AND UNDERSTANDING OF THE
PARTIES REGARDING THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS ORAL
AND WRITTEN AGREEMENTS.
Definitions
“Affiliate” means any person or entity which directly or indirectly
owns, controls, or is controlled by, or is under common control with
a party, where control is defined as owning or directing more than
50% of the voting equity securities or similar ownership interest in
the controlled entity.
“Application” means any end-user software application made
available by StackState or otherwise for use by Users by means of
a Subscription. Applications may be developed by StackState,
Customer, or a third party as may be identified on an Order and
made available to Customer (collectively, “StackState
Application”).
“Customer’s Customer” Customer will, when agreed in the Order,
identify and provide the Customer’s Customers for the Software
Service, provided the total number of agreed Customer’s Customers
is never exceeded.
“Component” means a representation of a physical or logical
element in Customer’s IT landscape on which Customer can plot
metrics and checks. A component is represented as a box in the
StackState topology.
“Confidential Information” means any information, maintained in
confidence by the disclosing party, communicated in written or oral
form, marked as proprietary, confidential or otherwise so identified,
and/or information that by its form, nature, content, or mode of
transmission a reasonable recipient would deem confidential or
proprietary, including the StackState offer, pricing, and any
benchmark data or results produced. The Software Service and/or
Subscription may contain valuable trade secrets and Confidential
Information of StackState.
“Documentation” means all written and electronic information and
materials made available by StackState to Customer with the
Subscription and/or available on Supplier’s website relating to the
access, use, operation or functionality of the Subscription and,
Support including technical and user manuals and operating
instructions.
"Fair Use" means the maximization of the total number of relationships between Components. For fair use, this is maximized to the total number of Components, as stated in the applicable order, times two.
“Foreign Elements” means viruses, worms, Trojan Horses, time
bombs or other alike foreign elements.
“Host” means any physical or virtual OS instance on which
Customer can run multiple processess (e.g. applications,
databases, services and containers). Containers (e.g. Docker) are
not counted as Hosts.
“Hosted Services” means the Subscription hosted by StackState
for Customer.
“Initial Term” means the term specified in an applicable Order.
“License” means the License defined in clause 2.1 hereafter.
“Order” means the document by which Customer or Customer’s
Affiliates acquire the Subscription and Support and, if applicable,
Professional Services (including a Statement of Work). The Order
and any subsequent orders by Customer shall be governed by the
terms and conditions of this MSA.
“Production Use” means use of the Subscription by Customer for
its own internal business purposes only.
“Professional Services” means those customized services made
available to Customer by StackState or its designated
subcontractors, and as more fully described in a Statement of
Work, including installation, integration, configuration, consulting
and training services.
“Software” means the object code versions of the Software
Service or run-time modules in object code as described on an
Order and in the associated Documentation.
“Software Service” means for this Agreement, the product(s) that
are ordered by Customer from StackState and to
which StackState provides online access to Customer.
“Statement of Work” means a document describing Professional
Services to be provided by StackState to Customer. For purposes
of this MSA, a Statement of Work shall constitute an “Order”.
“Subscription” means StackState’s services regarding Customer’s
the right to use the Software Service as an online service on a
term basis, for one or more Applications.
“Support” means the technical support for the Subscription as
specified in Section 5 below.
“Territory” means the territory agreed to by the parties as set forth
on the Order.
“Threat Event” means a message containing anonymized threat
related data from the End User.
“Use” means use of the Subscription by Customer for its own
internal business purposes, in accordance with the Documentation,
and not as a service bureau, application service provider, or other
service provided to third parties.
Use of the Subscription
2.1 Subject to the terms and conditions of this MSA, StackState
grants Customer a non-exclusive, non-transferable, revocable, and
non-sublicensable Subscription for the term of the applicable Order
and the Applications mentioned therein., solely for Customer’s
(Fair) Use, and on platforms (as applicable) specified in such Order as
licensed (the “License”). The License is limited to the then-current
license term and licensing metric(s) indicated on the applicable
Order.
2.2 Customer shall not circumvent, or attempt to circumvent, any
license management, security devices, access logs, or other
measures provided, or permit or assist any User or any third party
to do the same. Customer must follow the recommended
installation procedures for the Subscription.
2.3 Customer shall ensure that its third party consultants only
access and use the Subscription for Customer’s operations
provided any such third party consultant(s) have first signed an
agreement with Customer protecting StackState’s intellectual property with terms no less stringent than the terms and conditions
of this MSA and that Customer ensures that each such
consultant’s use of the Subscription complies with the terms of this
MSA. For the avoidance of doubt, Customer shall be fully liable for
any breach of this MSA by Customer’s third-party consultants.
2.4 Customer’s Affiliates may use the Subscription the
Documentation, provided any such Affiliate agrees to be bound by
the terms and conditions of this MSA by executing a participation
amendment. Any such use by Affiliates will count toward and abide
with the stated metrics in the Order and does not relieve the
Customer of its obligations under the MSA.
2.5 Customer agrees that StackState may collect and use
technical data and related information (including, but not limited to,
technical information about Customer’s devices, server, system
and application software, and peripherals, and device fingerprints)
that is gathered periodically to improve the Software Service
and/or the Subscription, facilitate the provision of Software Service
updates, Software Service support, and other services to
Customer and to monitor compliance with and determine billing.
2.6 For certain Software Services, Customer shall provide all data
processed to StackState. StackState reserves the right, and
Customer authorizes StackState, to remove all collected data thirty
(30) days after such data has been received, and in such a manner
that the data may be irretrievable. Customer agrees that
processing, utilization and storage of data may be limited to a
certain amount agreed to by the parties.
2.7 Customer will not, directly or indirectly, (i) sublicense transfer, lease, rent or otherwise assign its rights in the Software Service and/or the Subscription or the Documentation to any third party; (ii) modify the Software Service or the Documentation, create or
attempt to create any derivative works of the Software Service or the Documentation, or translate, reproduce, reverse engineer, reengineer, de-compile, or disassemble the Software Service or the Documentation; (iii) make use of any of the Software Service or the Documentation for which it has not paid (iv) export the Software Service or Documentation in violation of US laws, (v) use the
Software Service for any prohibited use, such as but not limited to nuclear technology applications, missile, or other military guidance systems and biological weaponry, (vi) alter or remove any of StackState’s or its licensor’s copyright or proprietary rights notices or legends appearing on or in the Software Service; or (vii) modify,
distribute or otherwise use the Software Service in any manner that causes any portion of the Software Service that is not already subject to an open source license to become subject to the terms of any open source license, in whole or in part, without the prior written consent of StackState. Customer must use the Subscription
in accordance with applicable law. Customer must not Subscription in an electronic communications network that is used wholly or mainly for the provision of publicly available electronic communications services (“Public Network”) in a manner that violates the rights to privacy or freedom of expression as outlined in the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights (collectively the
"International Human Rights Standards”) of any individual user who directly accesses the Internet or otherwise transmits data through a Public Network, provided the foregoing shall not limit use of the Software Service in a Public Network to restrict, monitor, collect or process data accessed or transmitted by individual users
based upon exceptions to the rights of privacy or freedom of expression that are recognized by International Human Rights Standards. In order to better understand and meet its customers’ needs, StackState may collect, use, analyze and retain Customer’s metadata, system topography information, and/or operations data and, in a confidential and anonymous manner, aggregate such data with similar usage data of other StackState’s customers including license key numbers, IP addresses or other applicable
device identifier (including MAC address or unique device identifier (UDID)).
2.8 StackState will supply default administrator login credentials for Customer to assign usernames and passwords to all personnel that will access the Subscription. Customer assumes sole responsibility for use of any such credentials and shall notify StackState immediately if such credentials are, or are suspected to
have been, misappropriated.
Warranty
3.1 StackState warrants that (i) it is entitled to make available the Subscription to Customer and (ii) the Software Service does not contain Foreign Elements during delivery of the Subscription to the Customer. The parties acknowledge and understand that the
Subscription is permitted to contain customary license keys, such as keys limiting the number of Users in accordance with the applicable Orders and restricting access after termination or expiration of a then-current license term.
3.2 StackState warrants that the Subscription shall conform in all material respects to the Documentation. StackState does not warrant that operation of the Subscription will be uninterrupted or “bug” or error free.
3.3 If Customer or any End User is located in the European
Economic Area, Customer represents and warrants that it shall
obtain all appropriate consents, make all necessary disclosures,
otherwise conform to all applicable laws of the EEA related to any
End Users’ personal data collected or otherwise processed by the
Subscription and/or Application
3.4 THE FOREGOING WARRANTIES ARE EXCLUSIVE. STACKSTATE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES REGARDING THE SOFTWARE SERVICE AND/OR THE SUBSCRIPTION OR THE DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND
MERCHANTABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF STACKSTATE BREACHES THE APPLICABLE FOREGOING WARRANTY AND CUSTOMER PROMPTLY NOTIFIES STACKSTATE IN WRITING OF THE NATURE OF THE BREACH, STACKSTATE SHALL MAKE COMMERCIALLY REASONABLE EFFORTS TO PROMPTLY REPAIR OR REPLACE THE NON-CONFORMING SOFTWARE SERVICE
WITHOUT CHARGE.
Fees and Audit
4.1 Amounts specified in an Order are exclusive of applicable
sales, use, VAT, consumption, and any other taxes. Customer
shall timely pay all such taxes. Customer will indemnify StackState
and hold StackState harmless from and against any such taxes
and will promptly reimburse StackState for the amount of any taxes
that StackState is required to or otherwise pays as a result of
Customer’s failure to pay such amount. Amounts payable are free
from any withholding tax or deductions. If, however, the Customer
is required by applicable law to deduct or withhold the applicable
tax but the deduction or withholding is not removed, StackState
shall have the right to increase the amount due in the invoice in
order to arrive at a net sum originally owed by Customer under that
invoice.
4.2 If Customer agrees to a Subscription fee, that will remain
Customer’s price for the duration of the then current term;
however, fees are subject to change at the end of the then current
term. Upon expiration of the then current term, StackState may
apply an indexation increase to its Subscription fee(s) or prices
and may be indexed by StackState during the then current term of
this MSA and/or Order in accordance with the derived CPI service
price index of the previous year plus a maximum of 5% per each
subsequent renewal term.
4.3 After all conditions and agreements have been met regarding
the purchase of a Subscription, StackState shall issue the invoice
for payment. The invoice shall include the fees attached to the
Software Services inclusive of the relevant tax charges. Each
Order will be due and payable annually in advance, within thirty
(30) days from the date of StackState’s invoice. StackState will
distribute temporary license keys to Customer until such time an
applicable invoice is paid in full. StackState may assess finance
fees of 1.5% per month for any late payments. Additionally,
StackState reserves the right to suspend or terminate Customer’s
access to the Subscription without liability to Customer if Customer fails to cure any instance of non-payment within fifteen (15) days of
receipt of notice from StackState.
4.4 Customer’s Affiliates may license under this MSA provided
they agree to be bound by the terms and conditions herein and
execute an Order. Any Affiliate Order does not relieve Customer of
its obligations under this MSA.
4.5 Customer agrees that, upon StackState’s request during or
after any Subscription period, Customer shall provide StackState in
writing with a summary of its usage of the Subscription. Customer
shall immediately owe and pay fees associated with usage in
excess of the Subscription amounts licensed and promptly (and in
no event more than fifteen (15) days after becoming aware thereof)
remedy any underpayments revealed during an audit both
retroactively as well as prospectively for the remainder of the
Subscription term.
4.6 Customer shall maintain complete, current and accurate
records of the location of each copy of the Subscription in
Customer’s possession for at least five (5) years. Furthermore,
Customer shall maintain the location of all Users thereof, the
number of all Users under the MSA.
Support Services
5.1 Support is included in the Subscription during the term of the
applicable Order, pursuant to StackState’s Support Handbook of
which a copy is available to Customer upon request. When
Customer encounters a problem or a bug in the Software Services
and the problem is not described in StackState’s online forum,
Customer may submit a technical support ticket on StackState’s
technical support website (https://support.stackstate.com/ ).
Professional Services
6.1 StackState shall perform the Professional Services with
reasonable care and skill and pursuant to an applicable Order.
Unless specified otherwise in the applicable Order, all Professional
Services are performed on a time and materials basis. Nothing in
the Order may be construed as an obligation of StackState to
deliver a certain result. Unless specified otherwise in the applicable
Order, Customer shall reimburse StackState’s reasonable cost for
travel and expenses connected to the performance of the
Professional Services insofar as (i) such cost are in compliance
with Customer’s travel policy; and (ii) StackState substantiates
such cost with receipts. All cost for living and expenses in
compliance with Customer’s travel policy which have already been
incurred by StackState prior to an early termination of the Order by
Customer, shall be borne by Customer.
6.2 Except for Customer's pre-existing intellectual property, all
rights, titles and interest, including moral rights in intellectual
property to or arising from any Professional Services shall solely
be owned by StackState or its licensors. StackState grants to
Customer a non-exclusive, non-licensable, non-sublicensable,
non-transferable right to use the Professional Services and all
works derived therefrom during the applicable Subscription term
and solely in connection with the Subscription.
Indemnification
7.1 Except for the limited license rights granted pursuant to this
MSA, title, ownership rights and all intellectual property rights in
and to the Subscription and Documentation shall remain the sole
and exclusive property of StackState and its licensors.
7.2 StackState will defend Customer against any third-party claim
brought against Customer that Customer’s use of the Subscription
in accordance with the terms herein infringes or misappropriates
any patent subsisting, copyright, trademark or trade secret,
provided however that Customer with regard to any such claims: (i)
promptly notifies StackState; (ii) reasonably cooperates with
StackState; and (iii) allows StackState to control the defense and
all related settlement negotiations. StackState will pay such
damages or costs as are finally awarded by a court of competent
jurisdiction against or agreed to by StackState in settlement for
such claim. Customer will have the right to participate with
StackState in the defense or appeal of any such claim, at
Customer’s own expense (such expense not being indemnified by
StackState), but StackState will have sole control and authority
with respect to any such defense, compromise, settlement, appeal
or similar action, provided that StackState obtains Customer’s prior
consent to any settlement that requires Customer to make any
admission of fault or pay any amounts in connection with such
settlement.
7.3 If an injunction is sought or obtained against Customer’s use of
the Subscription as a result of a third party infringement claim,
StackState may, at its sole option and expense, (i) procure for
Customer the right to continue using the affected Subscription, (ii)
replace or modify the affected Subscription with functionally
equivalent software so that it does not infringe, or, if either (i) or (ii)
is not commercially feasible, (iii) terminate the Subscription and
refund the Subscription fee received from Customer for the
affected Subscription less a usage charge based on a 12-month
amortization schedule.
7.4 StackState shall have no liability for any third-party claim of
infringement based upon: (i) use of other than the then current,
unaltered version of the applicable Subscription, unless the
infringing portion is in the then current, unaltered release; or (ii)
use, operation or combination of the applicable Subscription with
non-StackState programs, data, equipment or documentation if
such infringement would have been avoided but for such use,
operation or combination.
7.5 Customer agrees to release, indemnify and hold StackState, its
Affiliates and licensors, and each of their respective officers,
employees, directors, managers, partners, and agents harmless
from any and all losses, damages, expenses, including reasonable
attorneys’ fees, rights, claims, actions of any kind arising out of or
relating to any third party claims arising from or related to (i)
Customer’s or any User’s breach of Section 2 of this MSA or (ii)
any allegation that materials (a) maintained on Customer or any
Users’ behalf or (b) uploaded to the Subscription or used in
connection with the Subscription infringe or misappropriate any
patent subsisting, copyright, trademark or trade secret.
7.6 If the Customer has licensed the Subscription for Software
Services, Customer will defend at its expense, indemnify, and hold
harmless StackState from and against any losses, costs or
damages resulting from or in connection with any claims brought
by a third party against StackState resulting from or in connection
with the use by Customer and Customer’s direct and indirect End
Users in any country, provided that StackState gives Customer
prompt written notice of any such claim, tenders to Customer the
defense or settlement of any such claim at Customer’s expense,
and cooperates with Customer, at Customer’s expense, in
defending or settling such claim. This indemnification obligation
shall not apply to infringement actions or claims if such actions or
claims are based solely on the use of the Subscription in the form
provided by StackState.
Confidentiality
8.1 Each party that receives Confidential Information of the other
party agrees that, unless the disclosing party gives its prior written
authorization, the receiving party shall not: (i) use such
Confidential Information other than for the purposes of this MSA; or
(ii) disclose any such Confidential Information to any third party
except those directors, managers, officers, employees,
subcontractors, consultants, representatives and agents of the
receiving party (collectively, the “Representatives”) who are
required to have such Confidential Information in order to carry out
the purposes of this MSA and who have signed a non-disclosure
agreement or are otherwise bound by confidentiality obligations at
least as restrictive as the provisions of this MSA. The receiving
party shall prevent the unauthorized use, disclosure, dissemination
or publication of Confidential Information by itself and by its
Representatives using at least the same degree of care that the
receiving party uses to protect its own confidential information of a
similar nature, but in no event less than a commercially reasonable
degree of care.
8.2 The obligations of the parties under this Section 8 shall not
apply to the extent of any disclosure required pursuant to a duly
authorized subpoena, court order, or government authority of
competent jurisdiction, provided that the receiving party has
provided, to the extent permitted by applicable law, prompt notice
to, and full cooperation with, the disclosing party prior to such
disclosure so that such party may seek a protective order or other
appropriate remedy to protect against disclosure.
8.3 Upon request by the disclosing party, the receiving party will
certify to the disclosing party in writing that all copies, abstracts,
summaries, and documents have been destroyed.
8.4 Any breach of the confidentiality obligations set forth in this
Section would constitute a material breach of this MSA, which the
parties acknowledge may cause irreparable harm to the disclosing
party, leaving it without an adequate remedy at law. As such, any
such breach shall entitle the disclosing party to seek injunctive
relief in addition to all other remedies, without necessity of posting
of a bond or other security in connection therewith.
8.5 This Section 8 will remain in effect during the term of this MSA
and for a period of two (2) years following the termination of this
MSA or the applicable Order and, in the case of Confidential
Information that constitutes a trade secret under applicable law, for
so long as such Confidential Information remains a trade secret.
Limitation of Liability
9.1 Except for a party's: (i) willful breach of a material term of this
MSA; or (ii) breach of its confidentiality obligations under Section 8,
a party's aggregate liability for damages (direct or otherwise)
concerning performance or non-performance in any way related to
or arising from or under this MSA, and regardless of whether the
claim for such damages is based in contract, tort, strict liability, or
otherwise, shall not exceed the portion of the fees received by
StackState from Customer for the 12 month Subscription period
preceding the occurrence of such liability.
9.2 Notwithstanding anything to the contrary, in no other event
shall a party be liable for lost data, lost profits, lost revenues, loss
of data, loss of use, loss of business, or any indirect, incidental,
special, punitive, exemplary or consequential damages, whether or
not foreseeable, related to or arising from or under this MSA.
9.3 Under no circumstances will StackState be liable in any way for
Customer Applications, including for any errors or omissions in any
content, or for any loss or damage of any kind incurred as a result
of the use of any content uploaded or emailed in connection with or
via Hosted Services for or by Customer. Customer acknowledges
that StackState and its designees will have the right (but not the
obligation) in their sole discretion to refuse or remove any
Customer App that is available in connection with or via Hosted
Services, including for violations of this MSA.
Term and Termination
10.1 The term of this MSA shall commence upon Customer’s
acceptance thereof (the “Effective Date”) and shall continue until
the termination or expiration of the last then-current Order. Any
associated Orders shall automatically extend for additional oneyear periods (each, an “Extension Term”) at the end of the Initial
Term or, as applicable, any Extension Term.
10.2 Customer will continue to receive the Subscription for any
Extension Term of an Order in exchange for StackState’s thencurrent fees. Unless otherwise expressly provided in an Order, any
extension fees shall be due and payable to StackState no later
than thirty (30) days prior to the start of the applicable Extension
Term.
10.3 Either party may terminate any or all existing Order(s)
immediately by providing written notice to the other party of such
termination if the other party: (i) breaches any material provision of
this MSA; (ii) is adjudicated as bankrupt or makes an assignment
for the benefit of creditors, or if a receiver, liquidator, administrator
or a trustee is appointed for such party’s affairs; or (iii) if a party is
dissolved. None of the foregoing termination for cause rights shall
be valid if the breaching party is able to cure such breach within
thirty (30) days (or ten (10) days in the case of non-payment) after
the non-breaching party delivers notice of such breach to the
breaching party. Either party may terminate an Order at the end of
the Initial Term or an Extension Term thereof by giving the other
party at least ninety (90) days’ prior written notice before the
beginning of the next Extension Term.
10.4 If this MSA or any Order is terminated, Customer must within
thirty (30) days after such termination, at StackState’s direction,
destroy or return all affected Subscription and Documentation and
certify in writing that it has complied with this Section 10.4. Upon
expiration or termination of the MSA, if Customer was granted a
run-time License, then in addition, Customer shall: (a) cease the
reproduction and distribution of the Run-Time Modules (except as
provided below); and (b) shall promptly certify to StackState that
Customer has done so. However, for those Applications that have
previously been distributed and if Customer allows for that
Application to continue with the run-time licenses post termination,
may retain one (1) copy of the Run-Time Modules to support
existing End Users provided that Customer is then current with
payments due to StackState.
10.5 All provisions and obligations of this MSA or any Order which
by their nature should survive any termination of this MSA or an
Order will survive any such termination, including provisions and
obligations with regard to accrued rights to payment, confidentiality
obligations, warranty disclaimers, limitations of liability, engaging of
third parties and liability for taxes and premiums.
Miscellaneous
11.1 Force Majeure. StackState shall not be liable for, nor shall
StackState be considered in breach of this MSA due to, any failure
to perform its obligations under this MSA as a result of a cause
beyond its reasonable control, including any act of God or a public
enemy, terrorist act, act of any military, civil or regulatory authority,
change in any law or regulation, epidemic, pandemic, freight
embargo, strike, fire, flood, earthquake, storm or other like event,
disruption or outage of communications, power or other utility,
labor problem, unavailability of supplies, introduction of a virus,
worm or similar disabling code in the Subscription by Customer or
a third party or any other cause, whether similar or dissimilar to
any of the foregoing.
11.2 Assignment. Either party may assign this MSA and any of its
rights or obligations hereunder to its affiliates or in connection with
the transfer or sale of all or substantially all of its business, or in
the event of its merger, consolidation, reorganization, or change in
control or similar transaction.
11.3 Severability. If any part of this MSA is held to be
unenforceable, in whole or in part, such holding will not affect the
validity of the other parts of this MSA.
11.4 Waiver. Any failure by either party to detect, protest, or
remedy any breach of this MSA will not constitute a waiver or
impairment of any such term or condition, or the right of such party
at any time to avail itself of such remedies as it may have for any
breach or breaches of such term or condition. A waiver can only
occur pursuant to the prior written express permission of an
authorized officer of the other party.
11.5 Notices. All notices, instructions, requests and other
communications required or permitted under this MSA shall be in
writing and shall be delivered in person or sent by either
commercial overnight courier or certified or registered mail, return
receipt requested, or electronic transmission to either party at the
respective addresses set forth on the applicable Order or to such
other address as specified in writing by a party to the other party in
accordance with the terms of this Section. All such notices,
instructions, requests and other communications shall be deemed
effective (i) immediately if delivered in person; (ii) the next
business day if delivered by commercial overnight courier; (iii)
three (3) days after deposit with the United States Postal Service,
postage prepaid, if delivered by certified or registered mail; or (iv) when delivered, if delivered by electronic transmission such as
electronic mail.
11.6 Open Source Software. The Subscription may contain open
source software (“OSS”) licensed under such OSS’s own
applicable license terms. Any such OSS listed under this MSA is
listed only for Customer’s convenience and solely for information
purposes and, if licensed, is licensed to Customer only under the
terms set forth in the corresponding open source license, which
Customer may find on the Internet at the designated URL, or in the
header files of such software.
11.7 Export Restrictions. Export laws and regulations of the United
States and any other applicable jurisdictions apply to the
Subscription. Customer agrees that such applicable export control
laws govern Customer’s use of the Subscription and agrees to
comply with all such applicable export laws and regulations
(including “deemed export” and “deemed re-export” regulations).
Customer agrees that no data, information or Subscription will be
exported, directly or indirectly, in violation of these laws, or will be
used for any purpose prohibited by these laws, including nuclear,
chemical, or biological weapons proliferation, or development of
missile technology. Customer represents and warrants that
Customer is not: (i) located in a country that is subject to a U.S.
Government embargo (e.g., an embargoed country as designated
by the Office of Foreign Asset Control of the U.S. Treasury
Department), or that has been designated by the U.S. Government
as a “terrorist supporting” country; or (ii) listed on any U.S.
Government list of prohibited or restricted parties (e.g., the
prohibited persons list maintained by the Bureau of Industry and
Security of the U.S. Department of Commerce).
11.8 Privacy and Data Protection. The parties agree that upon
request of either party, they will sign a Data Processing Agreement
(“DPA”), to set forth their obligations with respect to the processing
and security of Customer Data and Personal Data as those terms
are defined in a DPA insofar any such Data is being processed by
StackState. StackState’s DPA will be provided to Customer upon
request.
11.9 Counterparts. This MSA, if applicable, and any Order, may be
executed in multiple counterparts, each of which when so executed
shall be deemed to be an original, and all such counterparts shall,
together, constitute one instrument. Signatures to this MSA or any
Order may be exchanged by facsimile, portable document format
or other similar electronic format, and all signatures exchanged in
such manner shall constitute and be deemed original signatures.
11.10 Governing Law. For StackState B.V. this MSA shall be
governed by the laws of the Netherlands and for StackState, Inc.
this MSA shall be governed by the laws of the State of Delaware,
United States which governing law for either of these two
jurisdictions shall control without giving effect to conflict of law
principles and excluding the U.N. Convention on Contracts for the
International Sale of Goods, even where adopted as a part of the
domestic law of the country whose law governs this MSA. Any suit
or proceeding relating to this MSA shall for StackState B.V. be
brought exclusively before the courts of Amsterdam, The
Netherlands and for StackState, Inc. be brought exclusively before
the federal courts located in the State of Delaware, The United
States of America.
Any disputes arising in countries not recognizing or not executing
court verdicts from any of StackState’s jurisdiction hereinabove
mentioned shall be finally settled under the Rules of Arbitration of
the International Chamber of Commerce (“ICC”). Such disputes or
claims shall be settled by simplified arbitration arranged by ICC in
accordance with the rules of arbitration procedure adopted by ICC
and in force at the time when such proceedings are commenced.
Arbitration shall be conducted either in Paris, France for
StackState B.V. or in the State of Delaware, United States for
StackState, Inc. before one arbitrator appointed in accordance with
the ICC Rules. All arbitration shall be conducted in English. The
award rendered thereon by the arbitrator shall be final and binding
on the parties thereto, and judgement thereon shall be confidential
and may be entered in any court of competent jurisdiction. Nothing
in this section shall prevent either Party from applying to a court of
competent jurisdiction for equitable or injunctive relief. Customer
may only resolve disputes with StackState on an individual basis
and Customer agrees not to bring or participate in any class,
consolidated, or representative action against StackState or any of
StackState’s employees or Affiliates.
11.11 Third Party Offerings. Elements of the Software Service
licensed hereunder may contain, be derived from, and/or connect
to materials of third party licensors (“Third Party Software”). In
addition to the terms of the MSA, such Third Party Software may
be subject to additional terms, which, if any, are set forth in the
Third Party Software file that is included with the Documentation.
To the extent that use of the Software Service [or Hosted Services]
requires use by Customer of Third Party Software or services,
StackState makes no representations or warranties regarding such
third party offerings. Such Third Party Offerings may be subject to
their own terms of service and Customer agrees to comply with all
such terms of service.
11.12 Interpretation. The following rules of interpretation must be
applied in interpreting this MSA: (i) the section and subsection
headings used in this MSA are for reference and convenience
only, and will not enter into the interpretation of this MSA, (ii) all
references to Sections are to the Sections in this MSA or, as
applicable, an Attachment to this MSA, and (iii) as used in this
MSA, the term “including” will always be deemed to mean
“including without limitation”.
11.13 Publicity. StackState may use Customer's name and may
disclose that Customer is a licensee of the Subscription in
StackState advertising, press, promotion and similar public
disclosures with respect to the Subscription and professional
services; provided, however, that such advertising, promotions or
similar public disclosures shall not indicate that Customer in any
way endorses any Subscription, without prior written permission
from Customer.
11.14 Independent Contractors. In the performance of this MSA,
each party is an independent contractor, and the employees,
officers and agents of one party will act only in the capacity of
representatives of that party and not as employees, officers or
agents of the other party.
11.15 Notice for California Users. Under California Civil Code
Section 1789.3, users of the Subscription and other StackState
solutions from California are entitled to the following specific
consumer rights notice: The Complaint Assistance Unit of the
Division of Consumer Services of the California Department of
Consumer Affairs may be contacted in writing at 1625 North
Market Blvd., Suite N 112, Sacramento, CA 95834, or by
telephone at (916) 445-1254 or (800) 952-5210.
11.16 Security Emergencies. If StackState reasonably determines
that the security of its Subscription or infrastructure may be
compromised due to hacking attempts, denial of service attacks, or
other malicious activities, then, notwithstanding anything to the
contrary, StackState may, without liability to Customer, temporarily
suspend the Subscription and related services and StackState will
take action to promptly resolve such security issues.
11.17 Order of Precedence. If there is a conflict between the terms
contained in this Agreement, the DPA if applicable or an executed
Order, the conflict will be resolved in that order, but only for the
specific Subscription [or Hosted Services] described in the
applicable Order.