TECHSTAK SERVICE TERMS AND CONDITIONS
Last Updated July 2017
These Service Terms and Conditions (this “Agreement”) constitutes a legal agreement between the User (as defined below) and GangPlank Technologies LLC, d/b/a TechStak, a Michigan limited liability company (“TechStak”). Capitalized terms not otherwise defined in the body of this Agreement are defined in Section 1 below.
TechStak provides an online platform and services (“Services”)
for Business Members to source, compare, and connect with technology solutions and information technology services from Service Providers and Suppliers and
for Service Providers and Suppliers to attract and engage with both Business Members and other Service Providers and Suppliers seeking technology solutions and information technology services through directory listings, business requests, tailored lists, peer-to-peer networking, advertising, and business networking for technology solutions and information technology services.
You acknowledge that TechStak, by and through the Services, provides lead generation and business networking services only by connecting Business Members with Service Providers and Suppliers and is not a Service Provider or Supplier itself, nor does it provide Provider Services or Products. This Agreement only addresses the relationship between TechStak and Users. Business Members and their Service Providers and Suppliers must enter a separate agreement with respect to the provision of Provider Services and Products.
In order to use the Services, all Users of the Services must agree to the terms and conditions that are set forth below. Upon a User’s execution (electronic or otherwise) of this Agreement (the “Effective Date”), such Users and TechStak shall be bound by the terms and conditions set forth herein. A User’s execution of this Agreement may be in the form of a User manifesting their consent by clicking an “I Agree” box or button or similar click-through consent.
IMPORTANT: PLEASE NOTE THAT TO USE THE SERVICES, USERS MUST AGREE TO THE TERMS AND CONDITIONS SET FORTH BELOW. BY VIRTUE OF ELECTRONIC EXECUTION OF THIS AGREEMENT, EACH USER WILL BE ACKNOWLEDGING THAT THEY HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT BUSINESS DECISION.
“Access Credentials” means any 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 Hosted Services.
“Action” has the meaning set forth in Section 13.1.
“Agreement” has the meaning set forth in the preamble.
“Authorized Representative” means, respectively, each of the individuals authorized by a User to use the Services on behalf of such User pursuant to Section 3.1 and the other terms and conditions of this Agreement.
“Availability Requirement” has the meaning set forth in Section 5.1.
“Available” has the meaning set forth in Section 5.1.
“Business Member” means a Person who is registered and creates an account to submit Business Member Requests or otherwise uses the Services to access information and source, compare, and connect with, or review and facilitate the receipt of any Provider Services and/or Products.
“Business Member Request” means a Business Member request for Provider Services and/or Product(s).
“Confidential Information” has the meaning set forth in Section 10.1.
“Consulting Services” means TechStak’s consulting, project management, RFP development, audit, and other services provided to Users pursuant to a Statement of Work.
“Consulting Fee” has the meaning set forth in Section 8.3.
“Disclosing Party” has the meaning set forth in Section 10.1.
“Documentation” means any manuals, instructions or other documents or materials that TechStak provides or makes available to Users and their Authorized Representatives in any form or medium and which describe the functionality, components, features or requirements of the Services or TechStak Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” has the meaning set forth in the preamble.
“Exceptions” has the meaning set forth in Section 5.1.
“Fees” means all fees due and payable by Service Providers and/or Supplier to TechStak under this Agreement, including, without limitation, Referral Fees, Success Fees, and Consulting Fees.
“Force Majeure Event” has the meaning set forth in Section 15.1.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to
- permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or * prevent a User or any Authorized Representative from accessing or using the Services or TechStak Systems as intended by this Agreement. Harmful Code does not include any TechStak Disabling Device.
“Hosted Services” has the meaning set forth in Section 2.1.
“Indemnitee” has the meaning set forth in Section 13.3.
“Indemnitor” has the meaning set forth in Section 13.3.
“Initial Term” has the meaning set forth in Section 11.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement 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.
“Permitted Use” means any use of the Services by an Authorized Representative for the benefit of such Authorized Representative’s respective User, for any and all lawful purposes and as otherwise provided in this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located.
“Policies” policies that TechStak provides or makes available to Users and their Authorized Representatives in any form or medium and which describe a User’s expected conduct in using the Services or TechStak Materials, including any aspect of the submission, fulfilment, and provision of Provider Services and/or Products under a Business Member Request.
“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy. **“Processing” **and “Processed” have correlative meanings.
“Products” means the goods listed, quoted, offered or sold by Suppliers, or sought, purchased, or received by Business Members through the submission of a Business Member Request.
“Provider Services” means the services listed, quoted, scheduled, offered or provided by Service Providers, or sought, scheduled, or received by Business Members through the submission of a Business Member Request.
“Receiving Party” has the meaning set forth in Section 10.1.
“Referral Fee” has the meaning set forth in Section 8.
“Reimbursable Expenses” has the meaning set forth in Section 8.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through the Services from Processing User Data and is sufficiently different from such User Data that such User Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
“Scheduled Downtime” has the meaning set forth in Section 5.2.
“Services” has the meaning set forth in the preamble and includes, without limitation, Consulting Services.
“Service Level Failure” has the meaning set forth in Section 5.1.
“Service Period” has the meaning set forth in Section 5.1.
“Service Software” means TechStak’s software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that TechStak provides remote access to and use of as part of the Services.
“Service Providers” means a Person who is registered, completes a provider application and/or creates an account to respond to Business Member Requests or otherwise uses the Services to access information, source, compare, and connect with, or review and facilitate the provision of any Provider Services.
“Statement of Work” means each written statement of work executed between TechStak and a User for Consulting Services.
“Subcontractor” has the meaning set forth in Section 2.5.
“Success Fees” has the meaning set forth in Section 8.
“Supplier” means a Person who is registered, completes a supplier application and/or creates an account to respond to Business Member Requests or otherwise uses the Services to access information, source, compare, and connect with, or review and facilitate the provision of any Products.
“Support Schedule” has the meaning set forth in Section 5.3.
“Support Services” has the meaning set forth in Section 5.3.
“TechStak” has the meaning set forth in the preamble.
“TechStak Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by TechStak or its designee to disable a User’s or any Authorized Representative’s access to or use of the Services automatically with the passage of time or under the positive control of TechStak or its designee.
“TechStak Indemnitee” has the meaning set forth in Section 13.2.
“TechStak Materials” means the Service Software, Documentation, Policies and TechStak 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 TechStak or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or TechStak Systems. For the avoidance of doubt, TechStak Materials include Resultant Data but do not include User Data.
“TechStak Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of TechStak or any Subcontractor. For the avoidance of doubt, Service Providers and Suppliers are not TechStak Personnel.
“TechStak Systems” means the information technology infrastructure used by or on behalf of TechStak in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by TechStak or through the use of third-party services.
“Term” has the meaning set forth in Section 11.1.
“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 TechStak.
“User” means a Business Member, Service Provider, and/or Supplier.
“User Data” means, with respect to each User, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from a User or their Authorized Representative by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services. For the avoidance of doubt, User Data includes information reflecting the access or use of the Services by or on behalf of a User or their Authorized Representative other than Resultant Data.
“User Failure” has the meaning set forth in Section 4.4.
“User Systems” means the User’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by a User or through the use of third-party services.reS 22.1 Services. Subject to and conditioned on User’s and its Authorized Representatives’ compliance with the terms and conditions of this Agreement, during the Term, TechStak shall use commercially reasonable efforts to provide to Users and their Authorized Representatives the Services and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Users and their Authorized Representatives (“Hosted Services”), 24 hours per day, seven days per week every day of the year, except for:
Scheduled Downtime in accordance with Section 5.2;
Service downtime or degradation due to a Force Majeure Event;
any other circumstances beyond TechStak’s reasonable control, including User’s or any Authorized Representative’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement; and
any suspension or termination of User’s or any Authorized Representatives’ access to or use of the Hosted Services as permitted by this Agreement
2.1 Services. Subject to and conditioned on User’s and its Authorized Representatives’ compliance with the terms and conditions of this Agreement, during the Term, TechStak shall use commercially reasonable efforts to provide to Users and their Authorized Representatives the Services and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Users and their Authorized Representatives (“Hosted Services”), 24 hours per day, seven days per week every day of the year, except for: (a) Scheduled Downtime in accordance with Section 5.2; (b) Service downtime or degradation due to a Force Majeure Event; (c) any other circumstances beyond TechStak’s reasonable control, including User’s or any Authorized Representative’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement; and (d) any suspension or termination of User’s or any Authorized Representatives’ access to or use of the Hosted Services as permitted by this Agreement.
2.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) TechStak has and will retain sole control over the operation, provision, maintenance and management of the Services and TechStak Materials, including the: (i) TechStak Systems; (ii) location(s) in the United States where any of the Services are available for use; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and
(b) User has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the User Systems, and sole responsibility for all access to and use of the Services and TechStak Materials by any Person by or through the User Systems or any other means controlled by User or their Authorized Representative, including any: (i) information, instructions or materials provided by any of them to the Services or TechStak; (ii) results obtained from any use of the Services or TechStak Materials; and (iii) conclusions, decisions or actions based on such use.
Notwithstanding anything to the contrary in this Agreement, all Services, including all Processing of User Data by or on behalf of TechStak shall be provided solely from within, and on computers, systems, networks and other infrastructure located in, the United States.
2.3 Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
2.4 Changes. TechStak reserves the right, in its sole discretion, to make any changes to the Services and TechStak Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of TechStak’s services to its Users, (ii) the competitive strength of or market for TechStak’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
2.5 Subcontractors. TechStak may from time to time in its discretion engage third parties to perform Services, including, without limitation third-party service providers for any provision or functionality of the Services (each, a “Subcontractor”).
2.6 Suspension or Termination of Services. TechStak may, directly or indirectly, and by use of a TechStak Disabling Device or any other lawful means, suspend, terminate or otherwise deny User’s, any Authorized Representative’s, or any other Person’s access to or use of all or any part of the Services or TechStak Materials, without incurring any resulting obligation or liability, if: (a) TechStak receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires TechStak to do so; or (b) TechStak believes, in its sole discretion, that: (i) any User or their Authorized Representative has failed to comply with, any term of this Agreement, including without limitation any Policies, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) User or any Authorized Representative is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.6 does not limit any of TechStak’s other rights or remedies, whether at law, in equity or under this Agreement.
2.7 Relationship of the Parties. Users acknowledge and agree that the provision of Provider Services and/or Products to Business Members by a Service Provider and/or Supplier, pursuant to Business Member Request or otherwise, creates a business relationship solely between the Service Provider and/or Supplier and the Business Member. TechStak does not guarantee results, quality of work, payment, or outcomes for Users. TechStak is not responsible or liable for the actions or inactions of a User in relation to these activities. Users shall have the sole responsibility for any obligations or liabilities to other Users or third parties that arise from their business relationship by or through the Services. Users acknowledge and agree that they are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable Law) regarding any acts or omissions of such User or third party.
2.8 Consulting Services.
(a) TechStak shall provide Consulting Services to a User as described in a Statement of Work in accordance with the terms and conditions of this Agreement. Each Statement of Work shall include the following information, if applicable: (i) a detailed description of the Consulting Services to be performed pursuant to the Statement of Work; (ii) the date upon which the Consulting Services will commence and the term of such Statement of Work; (iii) the fees to be paid to TechStak under the Statement of Work; (iv) the project implementation plan, including a timetable; (v) any criteria for completion of the project; and (vi) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
(b) The User shall cooperate with TechStak in all matters relating to the Consulting Services and appoint and, in its reasonable discretion, replace a User employee to serve as the primary contact with respect to Consulting Services and who will have the authority to act on behalf of User with respect to matters pertaining thereto. The User shall further respond promptly to any TechStak request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the performance of Consulting Services in accordance with the requirements of this Agreement. If TechStak’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of User or its agents, subcontractors, consultants or employees, TechStak shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by User, in each case, to the extent arising directly or indirectly from such prevention or delay.
3.Authorization and User Restrictions.
3.1 Authorization. Subject to and conditioned on User’s payment of the Fees, if any, and compliance and performance in accordance with all other terms and conditions of this Agreement, TechStak hereby authorizes User to access and use, during the Term, the Services and such TechStak Materials as TechStak may supply or make available to User solely for the Permitted Use by and through Authorized Representatives in accordance with the Documentation and Policies. This authorization is non-exclusive and non-transferable.
3.2 Reservation of Rights. 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, TechStak Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, TechStak Materials and the Third Party Materials are and will remain with TechStak and the respective rights holders in the Third Party Materials.
3.3 Authorization Limitations and Restrictions. Users shall not, and shall not permit any other Person to, access or use the Services or TechStak Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, User shall not, except as this Agreement expressly permits:
(a) copy, modify or create derivative works or improvements of the Services or TechStak Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or TechStak Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or TechStak Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or TechStak Materials or access or use the Services or TechStak Materials other than by an Authorized Representative through the use of his or her own then valid Access Credentials;
(e) input, upload, transmit or otherwise provide to or through the Services or TechStak 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, TechStak Systems or TechStak’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter or obscure any trademarks, Documentation, Policies, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or TechStak Materials, including any copy thereof;
(h) access or use the Services or TechStak Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other User, or that violates any applicable Law;
(i) access or use the Services or TechStak Materials for purposes of competitive analysis of the Services or TechStak Materials, the development, provision or use of a competing software service or product or any other purpose that is to TechStak’s detriment or commercial disadvantage; or
(j) otherwise access or use the Services or TechStak Materials beyond the scope of the authorization granted under Section 3.1.
4.Service Provider/Supplier Warranties and User Obligations.
4.1 Service Provider Warranties. In addition to any other representations and warranties in this Agreement, Service Providers represent and warrant, at all times during the Term, (a) that they and their Authorized Representatives are properly and fully qualified, licensed, certified, bonded, and insured, as required by applicable Laws to which they may be subject in the jurisdiction(s) in which they offer their Provider Services and in relation to the specific job, solution or service they are performing or providing; and (b) that they possess the appropriate and current level of training, expertise, and experience to provide Provider Services in a professional manner with due skill, care, and diligence.
4.2 Supplier Warranties. In addition to any other representations and warranties in this Agreement, Suppliers represent and warrant, at all times during the Term, in addition to any other Product warranties provided by Supplier or the manufacturer, (a) Products will be free from significant defects in material and workmanship; and (b) Business Members will receive good and valid title to the Products, free and clear of all encumbrances and liens of any kind.
4.3 User Systems and Cooperation. User shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Documentation all User Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as TechStak may reasonably request to enable TechStak to exercise its rights and perform its obligations under and in connection with this Agreement.
4.4 Effect of User Failure or Delay. TechStak is not responsible or liable for any delay or failure of performance caused in whole or in part by User’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “User Failure”).
4.5 Corrective Action and Notice. If User becomes aware of any actual or threatened activity prohibited by Section 3.3, User shall, and shall cause its Authorized Representatives to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and TechStak Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify TechStak of any such actual or threatened activity.
4.6 Non-Solicitation. During the Term and for two (2) years after, User shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by TechStak or any Subcontractor. In the event of a violation of this Section 4.6, TechStak will be entitled to liquidated damages equal to the compensation paid by TechStak to the applicable employee or contractor during the prior six (6) months.
5.1 Service Levels. Subject to the terms and conditions of this Agreement, TechStak will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement. “Available” means the Hosted Services are available for access and use by User and its Authorized Representatives over the Internet and operating in material accordance with the Documentation. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of User or its Authorized Representatives to access or use the Hosted Services that is due, in whole or in part, to any: (a) access to or use of the Hosted Services by User or any Authorized Representative, or using User’s or an Authorized Representative’s Access Credentials, that does not strictly comply with this Agreement and the Documentation; (b) User Failure; (c) User’s or its Authorized Representative’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by TechStak pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 2.6.
5.2 Scheduled Downtime. TechStak will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Hosted Services between the hours of 12:00 a.m. and 5:00 a.m., Eastern Time; and (b) give User at least 24 hours prior notice of all scheduled outages of the Hosted Services (“Scheduled Downtime”).
5.3 Service Support. The Services include TechStak’s standard User support services (“Support Services”) in accordance with TechStak service support schedule then in effect, which may be posted on the Services from time to time (the “Support Schedule”). TechStak may amend the Support Schedule from time to time in its sole discretion. User may purchase enhanced support services separately at TechStak’s then current rates.
The Services do not replace the need for User to maintain regular data backups or redundant data archives. TECHSTAK HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF USER DATA.
7.1 TechStak Systems and Security Obligations. TechStak will employ security measures in accordance with applicable industry practice.
7.2 Prohibited Data. User acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles or defense services; and (c) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). User shall not, and shall not permit any Authorized Representative or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, TechStak Systems or any TechStak Personnel. User is solely responsible for reviewing all User Data and shall ensure that no User Data constitutes or contains any Prohibited Data.
7.3 User Control and Responsibility. User has and will retain sole responsibility for: (a) all of its User Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of User or any Authorized Representative in connection with the Services; (c) User’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by User or through the use of third-party services (“User Systems”); (d) the security and use of User’s and its Authorized Representatives’ Access Credentials; and (e) all access to and use of the Services and TechStak Materials directly or indirectly by or through the User Systems or its or its Authorized Representatives’ Access Credentials, with or without User’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
7.4 Access and Security. User shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of User Data, including the uploading or other provision of User Data for Processing by the Hosted Services.
8.Fees; Payment Terms.
8.1 Referral Fee. When a Business Member provides TechStak with a Business Member Request for Provider Services or Products, TechStak may submit such Business Member Request, omitting the name and address and other identifying information of the Business Member, to qualified Service Providers and/or Suppliers. If the Service Provider and/or Supplier accepts the Business Member Request, in consideration therefor, the Service Provider and/or Supplier shall pay, and TechStak may automatically charge the credit card on file for such Service Provider and/or Supplier, the applicable fee (the “Referral Fee”) in exchange for receipt of the name and address of the Business Member and such other information for the purposes of responding to the Business Member Request. Receipt of a Business Member Request does not guarantee Service Provider and/or Supplier will be ultimately engaged to provide Provider Services and/or Products to such Business Member pursuant to the Business Member Request or otherwise.
8.2 Success Fee.
(a) In addition to the Referral Fee, in the event a Service Provider and/or Supplier provides Provider Services and/or Products to a Business Member as a result of receiving a Business Member Request, the Service Provider and/or Supplier shall pay TechStak a success fee (“Success Fee”) in accordance with TechStak’s then current Success Fee schedule. The Success Fee shall be calculated based on the total contract price, less actual taxes, shipping, handling, and transportation charges, if any; provided, however, for any such contract, if the contract period exceeds twelve (12) months, the contract price shall be calculated on the first twelve (12) month period only. Payment of the Success Fee shall accrue upon execution of the service or product agreement between the Service Provider and/or Supplier and the Business Member, and shall be due and payable within thirty (30) days after receipt of TechStak’s invoice for the same.
(b) The parties acknowledge and agree that Users shall, at all times, keep TechStak informed as to: (a) the provision of Provider Services and/or Products to a Business Member as a result of receiving a Business Member Request, (b) the total contract price, less actual taxes, shipping, handling, and transportation charges, if any, of such Provider Services and/or Products, and (c) the date of execution of a service or product agreement between the Service Provider and/or Supplier and the Business Member for such Provider Services and/or Products. The parties further acknowledge and agree that TechStak may contact Users for the purposes of soliciting or confirming the information above and further agree to respond to such requests for information in a timely manner (but not less than three (3) Business Days). Requests for information may include, without limitation, a request for a copy of service or product agreement between the Users, and the Users shall provide TechStak with copy of the same upon such request in accordance with this Agreement. Service and product agreements between Users that are provided to TechStak are the Confidential Information of such Users.
8.3 Consulting Fee. In addition to any Referral Fees and Success Fees, if Consulting Services are provided by TechStak to a User pursuant to a Statement of Work, the User shall pay the fees and reimbursable expenses, if any, set forth in such Statement of Work for such Consulting Services (the “Consulting Fee”). Where Consulting Services are provided on a time and materials basis, the fees payable for the Services shall be calculated in accordance with TechStak’s hourly fee rates, and TechStak shall issue invoices to User monthly in arrears for its fees for time for the immediately preceding month. Where Consulting Services are provided for a fixed price, the total fees for the Consulting Services shall be the amount and at the times set out in the applicable Statement of Work, and TechStak shall issue invoices to User for the fees that are then payable. User further agrees to reimburse TechStak for all reasonable travel and out-of-pocket expenses incurred in connection with the performance of the Consulting Services.
8.4 Payment and Processing of Fees.
(a) User shall pay all Fees to their account in accordance with the fees, charges, and billing terms in effect at the time a Fee is due and payable. All payment obligations are non-cancelable and all amounts paid are nonrefundable.
(b) User may be required to provide TechStak with valid credit card information as a condition to signing up for the Services. As and when requested, User agrees to provide TechStak with complete and accurate billing and contact information. This information includes User’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and contracts administrator. User agrees to update this information within five (5) days of any change to it. If the contact information User has provided is false or fraudulent, TechStak reserves the right to terminate the User’s access to the Services in addition to any other legal remedies. If User believes that a Fee is incorrect or was incorrectly charged, User must contact TechStak in writing within 60 days of the date the Fee was charged to be eligible to receive an adjustment or credit.
(c) TechStak reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to User, which notice may be provided by email, and shall be effective as to any future Business Member Requests or Statements of Work. All pricing terms are confidential, and User agrees not to disclose them to any third party.
8.5 Taxes. All amounts payable by User under this Agreement are exclusive of taxes and similar assessments. User 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 them hereunder, other than any taxes imposed on TechStak’s income. In the event regulations require taxes to be imputed in any Fees, TechStak shall calculate such Fees based on such Fee net of such taxes, as applicable.
9.Intellectual Property Rights.
9.1 Services and TechStak Materials. All right, title and interest in and to the Services and TechStak Materials, including all Intellectual Property Rights therein, are and will remain with TechStak and the respective rights holders in the Third-Party Materials. User has no right, license or authorization with respect to any of the Services or TechStak Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3 All other rights in and to the Services and TechStak Materials (including Third-Party Materials) are expressly reserved by TechStak and the respective third-party licensors. In furtherance of the foregoing, User hereby unconditionally and irrevocably grants to TechStak an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
9.2 User Data. As between User and TechStak, User is and will remain the sole and exclusive owner of all right, title and interest in and to all User Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3.
9.3 Consent to Use User Data. User hereby irrevocably grants all such rights and permissions in or relating to User Data: (a) to TechStak, its Subcontractors and TechStak Personnel as are necessary or useful to perform the Services; (b) to other Users and their Authorized Representatives as permitted by the Services in connection with Business Member Requests or potential requests for services; and (c) to TechStak as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
10.1 Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: all TechStak Materials are the Confidential Information of TechStak.
10.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10.
10.4 Compelled Disclosures. 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 shall: (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 or waive its rights under Section 10.3; 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 Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
11.Term and Termination .
11.1 Term. The term of this Agreement commences as of the Effective Date and shall continue unless terminated pursuant any of the Agreement’s express provisions (the “Term”).
11.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) TechStak may terminate this Agreement, effective on written notice to User, if User: (i) does not use the Services for a period of 30 days or longer; (ii) fails to pay any amount when due hereunder, and such failure continues more than 10 days after TechStak’s delivery of written notice thereof; or (iii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 7.2 (Prohibited Data) or Section 10 (Confidentiality).
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 10 days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.3 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 a party to the another party hereunder will immediately terminate;
(b) TechStak shall immediately cease all use of any User Data or User’s Confidential Information and (i) promptly return to User, or at User’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on User Data or User’s Confidential Information; and (ii) permanently erase all User Data and User’s Confidential Information from all systems TechStak directly or indirectly controls, provided that, for clarity, TechStak’s obligations under this** Section 11.3**(b) do not apply to any Resultant Data;
(c) User shall immediately cease all use of any Services or TechStak Materials and (i) promptly return to TechStak, or at TechStak’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any TechStak Materials or TechStak’s Confidential Information; and (ii) permanently erase all TechStak Materials and TechStak’s Confidential Information from all systems User directly or indirectly controls; and (iii) certify to TechStak in a signed written instrument that it has complied with the requirements of this Section 11.3(c);
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) TechStak and other Users may retain User Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iii) TechStak may also retain User Data in its backups, archives and disaster recovery systems until such User Data is deleted in the ordinary course; and (iv) all information and materials described in this Section 11.3(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) TechStak may disable all User and Authorized Representative access to the Hosted Services and TechStak Materials;
(f) if TechStak terminates this Agreement pursuant to Section 11.2(a) or Section 11.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable; and
(g) if User requests in writing at least 30 days after the effective date of termination, subject to Section 11.3(d), TechStak shall, within 120 days following such termination, deliver to User the then most recent version of User Data maintained by TechStak, provided that User has at that time paid all Fees then outstanding and any amounts payable after or as a result of such termination, including any expenses and fees, on a time and materials basis, for TechStak’s services in transferring such User Data.
11.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.3, Section 10, Section 11.3, this Section 11.4, Section 12, Section 13, Section 14 and Section 16.
12.Representations and Warranties.
12.1 Mutual 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; and
(d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
12.2 Additional TechStak Representations, Warranties and Covenants. TechStak represents, warrants and covenants to User that TechStak will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
12.3 Additional User Representations, Warranties and Covenants. User represents, warrants and covenants to TechStak and other Users that User owns or otherwise has and will have the necessary rights and consents in and relating to the User Data so that, as received by TechStak and other Users 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 rights of any third party or violate any applicable Law.
12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1, SECTION 12.2 AND SECTION 12.3, ALL SERVICES AND TECHSTAK MATERIALS ARE PROVIDED “AS IS” AND TECHSTAK HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TECHSTAK 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, TECHSTAK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR TECHSTAK MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’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 EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13.1 TechStak Indemnification. TechStak shall indemnify, defend and hold harmless User from and against any and all Losses incurred by such User arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of User) to the extent that such Losses arise from any allegation in such Action that User’s use of the Services (excluding User Data and Third Party Materials) in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or TechStak Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Documentation or otherwise in writing by TechStak;
(b) modification of the Services or TechStak Materials other than: (i) by or on behalf of TechStak; or (ii) with TechStak’s written approval in accordance with TechStak’s written specification;
(c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to User by or on behalf of TechStak; or
(d) act, omission or other matter described in Section 13.2(a), Section 13.2(b), Section 13.2(c) or Section 13.2(d), whether or not the same results in any Action against or Losses by any TechStak Indemnitee.
13.2 User Indemnification. User shall indemnify, defend and hold harmless TechStak and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “TechStak Indemnitee”) from and against any and all Losses incurred by such TechStak Indemnitee in connection with any Action by a third party (other than an Affiliate of a TechStak Indemnitee) that arise out of or relate to any:
(a) User Data, including any Processing of User Data by or on behalf of TechStak in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of User or any Authorized Representative, including TechStak’s compliance with any specifications or directions provided by or on behalf of User or any Authorized Representative to the extent prepared without any contribution by TechStak;
(c) allegation of facts that, if true, would constitute User’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 User, any Authorized Representative, or any third party on behalf of User or any Authorized Representative, in connection with this Agreement.
13.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel [of its choice/reasonably acceptable to the Indemnitee] to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
13.4 Mitigation. If any of the Services or TechStak Materials are, or in TechStak’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if User’s or any Authorized Representative’s use of the Services or TechStak Materials is enjoined or threatened to be enjoined, TechStak may, at its option and sole cost and expense:
(a) obtain the right for User to continue to use the Services and TechStak Materials as contemplated by this Agreement;
(b) modify or replace the Services and TechStak Materials, in whole or in part, to seek to make the Services and TechStak Materials (as so modified or replaced) non-infringing, while providing equivalent features and functionality, in which case such modifications or replacements will constitute Services and TechStak Materials, as applicable, under this Agreement; or
(c) by written notice to User, terminate this Agreement with respect to all or part of the Services and TechStak Materials, and require User to immediately cease any use of the Services and TechStak Materials or any specified part or feature thereof.
THIS SECTION 13 SETS FORTH USER’S SOLE REMEDIES AND TECHSTAK’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND TECHSTAK MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT.
14.Limitations of Liability.
14.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, IN NO EVENT WILL TECHSTAK OR ANY OF ITS LICENSORS, SERVICE PROIVDERS 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.
14.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF TECHSTAK AND ITS LICENSORS, SERVICE PROVIDER AND/OR SUPPLIERS AND SUPPLIERS 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 THE AMOUNTS PAID TO TECHSTAK IN THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.3 Exceptions. The exclusions and limitations in Section 14.1 and Section 14.2 do not apply to TechStak’s obligations under **Section 13 **(Indemnification) or liability for TechStak’s gross negligence or willful misconduct.
15.1 No Breach or Default. In no event will any party be liable or responsible to any other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
15.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other parties stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
16.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall 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 shall have authority to contract for or bind the other party in any manner whatsoever.
16.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that TechStak may, without User’s consent, include User’s name and/or other indicia in its lists of TechStak’s current or former Users of TechStak in promotional and marketing materials.
16.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at their last known address (or to such other address or such other person that such party may designate from time to time in accordance with this Section 16.4). Notices sent in accordance with this **Section 16.**4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
16.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
16.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
16.7 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference (e.g. Documentation and Policies), 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. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement; and (b) second, any other documents incorporated herein by reference.
16.8 Assignment. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without TechStak’s prior written consent, which consent TechStak shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving User (regardless of whether User is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which TechStak’s prior written consent is required. No delegation or other transfer will relieve User of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 16.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
16.9 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
16.10 Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.11 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16.12 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or state courts of the City of Troy, State of Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
16.13 Waiver of Jury Trial. 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 or the transactions contemplated hereby.
16.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10 or, in the case of User, Section 3.3, Section 4.5 or Section 7.2, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
16.15 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.