Last Updated: May 1st, 2019
READ CAREFULLY THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE APPLICABLE STITCH ORDER FORM ON WHICH THEY ARE REFERENCED, CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE STITCH PLATFORM AND THE PROVISION BY STITCH OF ASSOCIATED SERVICES. BY ACESSING OR USING THE STITCH PLATFORM, BY RECEIVING THE STITCH SERVICES, OR BY CLICKING “I AGREE”, YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT RECEIVE THE STITCH SERVICES OR ACCESS AND USE THE STITCH PLATFORM.
This End User License Agreement (this “Agreement”) is entered into by and between the Stitch Inc. (“Stitch”) and the customer, identified on the Order Form, that is purchasing a Subscription and/or Services (“You” or “Customer”), and is effective as of the date you receive the Stitch Services, access the Stitch Platform or accept or sign the Order Form, whichever comes first (the “Effective Date”). Stitch and Customer are collectively referred to as the “Parties” and individually as a “Party”. If you are entering into this Agreement, or open an account, on behalf of a company or legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity. This Agreement permits Customer to order the Stitch Services or a Subscription to access the Stitch Platform (as applicable) from Stitch pursuant to the terms and conditions contained herein.
The following capitalized terms shall have the meaning set forth below. Other defined terms shall have the meanings set forth where they are first underlined.
1.1 “Account Parameters” means the parameters within which you and your Authorized Users may access and use the Platform, as set forth on the Order Form.
1.2 “Affiliate” means, with respect to a Party, an entity that controls, is controlled by, or is under common control with, such Party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity.
1.3 “Authorized User” means any of your current employees, consultants, or agents whom you authorize to access and use the Platform pursuant to this Agreement; provided, however, that any consultants’ or agents’ access and use of the Platform shall be limited to their provision of services to you. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Platform using any of your or your Authorized Users’ access credentials, and all obligations of yours under this Agreement shall apply fully to any such Authorized User or other person as if they were “you” under this Agreement.
1.4 “Beta Features” means pre-release features, functionalities, or modules of the Platform that are made available to you to use and evaluate. For the avoidance of doubt, “Beta Features” are not included in the definition of “Services,” “Free Products,” “Platform” or “Website”.
1.5. “Billing Information” means any of your billing information, including, without limitation, bank account numbers, credit card or debit card numbers, account details, ACH information, and similar data.
1.6. “Customer Data” means collectively the Loaded Data, the Extracted Data, and any other applications, data, data files and software provided by Customer or any Authorized User of Customer that reside on, or runs on or through, the Platform. Customer agrees not to include any production data in its Customer Data during the Free Trial Period.
1.7. “Destructive Elements” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operations.
1.8. “Documentation” means the documentation provided with the Platform or Services to Customer hereunder, or made available on the Website, together with any and all new documentation releases, corrections and updates furnished by Stitch to Customer under this Agreement.
1.9. “Extracted Data” means, any data that you or your Authorized Users enable Stitch to access and extract from the Servers to the Platform.
1.10. “Fees” means, collectively, the Subscription Fees, any Professional Services Fees, and any other fees Stitch charges for its products, services, or data, each as described at https://stitchdata.com/pricing (the “Pricing Page”) or on the applicable Order Form.
1.11. “Free Products” means tools, features, functionalities, or modules of the Platform that are made available to you to use at no charge. For the avoidance of doubt, “Free Products” are not included in the definition of “Services,” “Beta Features,” “Platform” or “Website”.
1.12. “Free Trial Period” means the fourteen (14) day free trial period (or such longer period authorized by Stitch following your written request) commencing upon your initial input of Customer Data through the Services, following your Account (as defined below) registration.
1.13. “Initial Subscription Term” means the initial period when Stitch will provide you the Service, as set forth on the Order Form.
1.14. “Loaded Data” means, any data that Stitch transfers or loads onto the Servers via the Platform.
1.15. “Metadata” means any and all data that Stitch may collect from you as a result of (i) your registration with the Platform, Website, and/or Service, including any and all personally identifiable information, and (ii) monitoring your use of the Service, the Free Products, the Beta Features, the Website and the Platform, including any and all analytics data.
1.16. “Open Source Software” means individual software components that are provided with the Service, for which the source code is made generally available, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components.
1.17. “Order Form” means (i) a Stitch order form accepted by you during the subscription enrollment process or after enrollment setting forth the Service, the Account Parameters and the applicable Subscription Fees, including without limitation, any and all upgrade options for the Services and/or Account Parameters, and pursuant to which Customer may order Services and/or Professional Services from Stitch, or (ii) any document accepted by and between an authorized reseller of Stitch pursuant to which Customer may order Services and/or Professional Services from Stitch.
1.18. “Overage” means any use of the Platform in excess of the Account Parameters as shown on your home page.
1.19. “Personal Information” means personal or personally identifiable data and/or records of or regarding your or your Affiliates’ officers, directors, employees, investors, customers and/or prospective customers.
1.20. “Platform” means Stitch’s proprietary, cloud-based platform.
1.21. “Professional Services” means any professional services that you may request from Stitch from time to time and Stitch provides to you pursuant to a separate written agreement between Stitch and you, such as training, installation, integration, or consulting services.
1.22. “Professional Services Fees” means the fees Stitch charges for the Professional Services, as set forth in the applicable written agreement for Professional Services entered into between Stitch and you.
1.23. “Prohibited Content” means content that: (i) is illegal under applicable law; (ii) contains Sensitive Personal Information; (iii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iv) contains indecent or obscene material; (v) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (vi) promotes unlawful or illegal goods, services, or activities; (vii) contains false, misleading, or deceptive statements, depictions, or sales practices; (viii) contains Destructive Elements; or (ix) is otherwise objectionable to Stitch in its sole, but reasonable, discretion.
1.24. “Renewal Subscription Terms” means any renewal periods after the Initial Subscription Term during which Stitch will provide you the Service, as forth on the Order Form.
1.25. “Sensitive Personal Information” means the following types of data: any financial information (including, without limitation, Billing Information and cardholder or sensitive authentication data, as those terms are defined under the Payment Card Industry Data Security Standard), personally identifiable financial information as defined by and subject to the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”), country identification numbers, (including, without limitation, Social Insurance Number, Social Security Number, or other governmentally-issued identification number such as driver’s license or passport number drivers’ license numbers), data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”), education records, as defined under the Family Educational Rights and Privacy Act of 1974 (“FERPA”), any protected health information subject to the Health Insurance Portability and Accountability Act (“HIPAA”), special categories of personal data identified in Article 9 of the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and personal data relating to criminal convictions and offences.
1.26. “Servers” means the servers owned or controlled by you or your third-party hosting providers, which shall host the Extracted Data and/or the Loaded Data after it is extracted and transferred via the Platform. In limited circumstances, upon the agreement of the Parties, Stitch may manage a separate instance for you on the servers of Stitch’s third-party hosting provider.
1.27. “Service” means Stitch’s provision to you of access to and usage of the Platform through the Website as set forth in this Agreement, including without limitation, both the Free Trial Period and paid subscriptions.
1.28. “Cloud Subscription” means the Customer’s right to access and use the Platform or Services on a subscription basis, as specified in the applicable Order Form, subject to the applicable restrictions set forth herein or in such Order Form. Subscriptions subject to this Agreement may be annual or month-to-month, as set forth on the applicable Order Form.
1.29. “Subscription Fees” means the fees for the Service set forth on the Order Form.
1.30. “Subscription Term” means the Free Trial Period, if any, the Initial Subscription Term, and any Renewal Subscription Terms, collectively.
1.31. “Support Services” means the technical support services related to the use of the Platform, the Service, and/or the Website, including through the help center, available at https://www.stitchdata.com/docs, which has detailed information about how to use Stitch.
1.32. “Website” means any website through which Stitch provides access to the Platform, including https://www.stitchdata.com/.
1.33. “Update” means any release or update of or for the Platform or Services that is made generally available by Stitch to its customers during the term of this Agreement.
Trial Period, Subscription Service, Restrictions
2.1. License Grants. Subject to the terms and conditions of this Agreement, including the payment of all applicable Fees (as defined below), Stitch hereby grants to Customer, solely for Customer’s and Affiliates’ internal business operations, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, right and license during the Trial Period and/or the applicable Term (as defined below), if any, to: (a) Access and use the Platform, the Website and the Service, subject to any applicable license restrictions (as specified on an Order Form); and (b) Permit Affiliates or third party contractors performing services on Customer’s behalf to use the Platform, Website, and the Service in accordance with the terms and conditions of this Agreement provided that (i) such use must be solely for the benefit of Customer or Affiliates; and (ii) Customer shall be responsible for all acts and omissions of such third parties.
2.2. Reservation of Rights; Restrictions. Stitch owns all right title and interest in and to the Service, the Free Products, the Beta Features, the Platform, and the Website (for purposes of this Section 2.2 only, collectively the “Stitch Products”), and any derivative works thereof, and no other license is granted to Customer by implication, estoppel or otherwise. Customer agrees not to (and will not authorize, permit, or encourage any third party to): (i) use Stitch Products than for the licensed purposes; (ii) allow anyone other than Authorized Users to access and use the Stitch Products; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or the Website; (iii) modify, adapt, or translate the Stitch Products; (iv) make any copies of the Stitch Products; (v) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Stitch Products in whole or in part to any third party (unless otherwise expressly agreed between the Parties on an applicable Order Form); (vi) alter or remove any proprietary notices in the Stitch Products; (vii) use the Stitch Products in violation of any applicable law, rule or regulation, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (viii) introduce, post, upload, transmit, or otherwise make available to or from the Stitch Products any Prohibited Content (other than Sensitive Personal Information that is required to be provided in connection with registration and/or otherwise expressly permitted in writing by Stitch); (iv) prepare derivative works from, modify, copy or use the Stitch Products in any manner except as expressly permitted in this Agreement; (x) use the Stitch Products for providing time-sharing services, any software-as-a-service offering (“SaaS”), service bureau services or as part of an application services provider or as a service offering; or (xi) make available to any third party any analysis of the results of operation of the Stitch Products, including benchmarking results, without the prior written consent of Stitch.
2.3. Onboarding of Authorized Users. Each Authorized User will be assigned a unique user name and password to access the Service. The Service may be accessed by no more than the total number of Authorized Users for which Customer has purchased a license to use such Service, as set forth in the applicable Order Form. Additional Authorized Users may be purchased during the applicable Subscription Term at a prorated amount for the remainder of the then-current Subscription Term. Authorized Users must log into the Website and register. During the initial registration, Authorized User will be prompted to create an account (“Account”), which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating the Authorized User’s identity when he or she logs-in in the future (“Unique Identifiers”). When creating the account, Authorized Users must provide true, accurate, current, and complete information. Customer shall be responsible for identifying and authenticating all Authorized Users, for approving access by such Authorized Users to the Service, for controlling against unauthorized access by such Authorized Users, and for maintaining the confidentiality and use of Authorized Users’ Sign-In Names, Passwords, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Website or the Platform. Stitch is not liable for any harm caused by Customer Authorized Users, including individuals who were not authorized to have access to the Service. Customer shall be responsible for all activities that occur under Customer’s and Customer’s Authorized Users’ Passwords or Account or as a result of Customers or Customer’s Authorized Users’ access to the Service. You will promptly inform Stitch of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. Stitch reserves the right to delete or change Authorized Users’ Accounts, Passwords, Sign-In Names, or Unique Identifiers at any time and for any reason.
2.4. Free Trial Period. Stitch will provide the Service to you free of charge during the Free Trial Period. Following the Free Trial Period, you will be presented with an Order Form on your next sign-in to select a tier in order to keep using the Service. If you have not selected a subscription tier, your access to the Platform will be limited to Free Products, and Stitch will automatically set capacity limitations. Termination of any Free Trial Period shall be as set forth in Section 5.2.
2.5. Subscription Service. During the Subscription Term, Stitch will provide you the Service subject to the terms and conditions of this Agreement, including, without limitation, the Account Parameters set forth on the Order Form. In connection with any subscription: (i) you are solely responsible for securing sufficient capacity on the Servers for the Loaded Data and for hosting and maintaining the Servers (or contracting with Stitch or a third party to do so); and (ii) you shall provide Stitch all information (such as access credentials and Server information) necessary to load the Loaded Data on the Servers. For security reasons, you should provide the information required under subsection (ii) only through the Platform through the connection set-up screen, and not through e-mail, Stitch’s Help Desk, or any other channel.
2.6. Compliance. Stitch has the right to monitor your compliance with the applicable Account Parameters and the other provisions of this Agreement. If any such monitoring reveals that you have exceeded any Account Parameters or other usage limitations or otherwise are not using the Service, the Free Products, the Beta Features, the Website or the Platform in compliance with this Agreement, then you will remedy any such non-compliance within five (5) business days of receiving notice from Stitch, including, if applicable, through the payment of additional Subscription Fees, which Stitch may automatically charge and process in accordance with Section 4. Any failure to remedy such non-compliance will be deemed a material breach of this Agreement.
2.7. Changes to Service. At any time, you may subscribe to additional features of the Service and/or upgrade the Account Parameters through the Order Form. At the conclusion of the Free Trial Period the Order Form will be automatically displayed. Thereafter, you may change your plan via the “select a plan” button on your billing page, which will take you to the Order Form.
2.8. Stitch Modifications. Stitch may modify the Platform and its Website from time to time by adding or deleting features to improve the user experience.
2.9. Beta Features. From time to time, you may be able to access and try Stitch’s Beta Features. You may choose to access such Beta Features at your sole discretion. An important part of Stitch’s beta process is getting real-world testing of the Beta Features before a general release. If you choose to try out the Beta Features, the following additional terms and conditions will apply. You will not use such Beta Features unless you agree to all such additional term and conditions.
You acknowledge that Beta Features (i) are still in development and are provided to you for evaluation purposes only and not for production use, (ii) are not considered part of the Service under this Agreement, (iii) are not supported, may have bugs or errors, and are provided “AS IS” with no warranties of any kind, and (iv) may be subject to additional terms.
Unless otherwise stated, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available as part of the Service or Stitch elects to discontinue such Beta Feature.
Beta Features may materially change prior to commercial launch, or may never be released commercially. Stitch may discontinue Beta Features at any time in its sole discretion and may never make them generally available.
STITCH WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA FEATURE, AND YOUR USE OF OR RELIANCE ON ANY BETA FEATURE IS AT YOUR OWN RISK.
2.10. Free Products. Stitch may, in its sole discretion, provide you with Free Products. You may use such products with or without the Services at your sole discretion. If you use any or all of the Free Products, the following additional terms and conditions will apply. You will not use such Free Products unless you agree to all such additional term and conditions:
You acknowledge that Free Products are not considered part of the Service under this Agreement, are not supported, are provided “AS IS” with no warranties of any kind, and may be subject to additional terms.
Stitch may discontinue Free Products (or your access to any Free Products) at any time in its sole discretion.
STITCH WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A FREE PRODUCT, AND YOUR USE OF OR RELIANCE ON ANY FREE PRODUCT IS AT YOUR OWN RISK.
2.11. Ownership of Intellectual Property. Except as otherwise provided in this Agreement, all right, title, and interest in and to the Service, the Platform, the Website, the Free Products, the Beta Features and the Aggregate Data, including without limitation, all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein, shall be and remain the sole and exclusive property of Stitch. To the extent, if any, that this Agreement does not provide Stitch with full ownership, right, title and interest in and to the Aggregated Data, you hereby irrevocably transfer, convey, and assign to Stitch (with full warranty of title and free from all encumbrances) any and all of you interest in and right and title to the Aggregated Data and all related intellectual property rights contained therein and related thereto, including without limitation, all right to and interest in all causes of action throughout the world, either in law or in equity for past, present, or future infringement based on the intellectual property rights. Except as provided in Section 6.2 and Section 6.5 of this Agreement, all right, title, and interest in and to the Customer Data, including Extracted Data and Loaded Data, and including, without limitation, all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, shall be and remain your sole and exclusive property.
3.1. Professional Services. You may request to have Stitch provide Professional Services in connection with the Service subject to a separate written agreement between you and Stitch. Professional Services Fees for the Professional Services are in addition to the Subscription Fees and are payable in accordance with such separate written agreement.
3.2. Support Services. Subject to the payment by Customer to Stitch of applicable Fees set forth on the Order Form, Stitch will provide Customer with the Support Services as described on the Website, the Platform, or the applicable Order Form, including through Stitch’s help center, which has detailed information about how to use Stitch. Primary technical information is provided through the Documentation available on the Platform. Support Services are provided to Customer solely for Customer’s internal use and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Stitch reserves the right to modify reasonably its policies in connection with Support Services, provided that in no event will Stitch materially degrade or diminish the level and quality of Support Services provided during the term of this Agreement. Stitch shall have no obligation to support versions of the Website, the Service, or the Platform that have been modified by Customer or are not the most up to date versions of the foregoing. Additionally, Stitch offers Chat Support for all users, which can be accessed after sign in. Stitch endeavors to respond to Chat Support requests within about 15 minutes during business hours (8 a.m. - 8 p.m. Eastern Time).
3.3. Subcontractors. Stitch reserves the right to use subcontractors to perform Professional Services on Stitch’s behalf, and Customer hereby consents to such use, provided that Stitch shall remain solely responsible to Customer for the provision of all applicable Professional Services.
3.4. Customer Policies. While on premises owned, controlled or hired by Customer, all Stitch personnel shall conduct themselves in accordance with the standard health, safety and security policies of Customer.
3.5. Customer Obligations. Customer agrees to provide Stitch with such cooperation, complete, accurate, up-to-date, and timely Extracted Data, materials, information, access and support which Stitch deems to be reasonably required to allow Stitch to successfully provide the Professional Services. Customer understands and agrees that Stitch’s obligations to provide Professional Services are expressly conditioned upon Customer providing such cooperation, materials, information, access and support, and Customer causing its personnel and third-party service providers to do the same.
Fees, Payment, and Taxes
4.1. Fees. Customer agrees to pay Stitch the applicable Subscription Fees, Professional Service Fees, and any other Fees stated on the Order Form, the Pricing Page, or otherwise accrued by Customer, as applicable.
4.2. Payment. The Fees and any applicable Taxes (as defined below) are due and payable as set forth in this Section 4 below. Unless otherwise specified on an Order Form, all Fees will be paid in US Dollars. Payment will be made without the right of set-off or chargeback. Customer shall pay all amounts due under this Agreement to Stitch at the address set forth herein or such other location as Stitch designates in writing. Fees for the Cloud Subscriptions are based on Stitch’s then current list price and may not be discounted or combined with any other discounts. Unless otherwise set forth on the Order Form, Stitch reserves the right to adjust the current list price or change its subscription plan or any components thereof in its sole discretion upon written notice of such change to Customer at least thirty (30) days in advance. Any amount not paid when due may be subject to interest at the rate of one and one half percent (1.5%) per month, or the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid. Stitch shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from you that are more than thirty (30) days delinquent.
4.3. Taxes. All amounts payable by Customer to Stitch under this Agreement are exclusive of any tax, levy, VAT or other relevant governmental charge that may be assessed in any jurisdiction (“Taxes”) and Customer agrees to pay such Taxes, except for Taxes based on Stitch’s income, whether based on gross revenue, the delivery, possession, or use of the Platform, the provision of the Service or the Professional Services, the execution or performance of this Agreement or otherwise, including, without limitation, all goods and services tax, sales tax, excise duty, import or export levy, value added tax, governmental permit fees, license fees, and customs. If, as a result of any tax or levy, Customer is required to withhold any amount on any payment to Talend, then either (i) the amount of the payment to Talend shall be automatically increased to totally offset such tax, so that the amount actually remitted to Talend, net of all taxes, equals the amount invoiced or otherwise due, or (ii) Stitch will invoice you for such Taxes, and you shall reimburse Stitch in accordance with Section 5. Customer will promptly furnish Talend with the official receipt of payment of these taxes to the appropriate taxing authority. If Customer is tax exempt, Customer shall provide Talend with a certificate of exemption acceptable to the taxing authority. You hereby agree to defend, indemnify, and hold harmless Stitch and its officers, directors, managers, employees, and agents from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by Stitch on your behalf.
4.4. Subscriptions and Automatic Renewals. The Services are available through monthly and/or annual subscriptions. SUBSCRIPTION FEES WILL BE AUTOMATICALLY CHARGED TO YOUR PAYMENT METHOD ON FILE EACH MONTH OR YEAR, AS APPLICABLE, UNTIL YOU CANCEL. Your Subscription Term shall commence on the Order Effective Date and will automatically renew on each subsequent monthly or annual anniversary date of your subscription thereafter unless cancelled or otherwise terminated in accordance with this Agreement. Customer agrees that prior to commencement of the Subscription Term and prior to the commencement of any subsequent renewal date thereof, Stitch will charge your then-current payment method associated with your account with the applicable then-current Subscription Fee. Stitch reserves the right to cancel any subscription if Stitch is unable to successfully charge your payment method to renew your subscription. All Subscription Fees are fully earned upon payment. You hereby expressly agree that Stitch may submit periodic charges (e.g., monthly or annually) without further authorization from you until Stitch receives written notice from you that you have terminated this authorization or wish to change your payment method. Such notice will not affect charges submitted before Stitch could reasonably act upon such notice.
4.5. Payment by Credit Card; Electronic Payment. Stitch uses a third-party payment processing service to process all such transactions (“Payment Processing Provider”). Customer shall provide (upon registration on the Platform or on the applicable Order Form) either a valid credit card, or other acceptable method of electronic payment as approved by Stitch, to Stitch’s Payment Processing Provider and shall take all necessary steps to authorize automatic payment, as follows: (i) for Subscription Fees, the Payment Processing Provider may, as applicable, automatically charge Subscription Fees and any applicable Taxes in advance on the periodic basis (i.e., monthly or annually) set forth on the Order Form; and (ii) for Overages and/or any upgrades to the Service that you order pursuant to Section 4.4, the Payment Processing Provider may, as applicable, automatically charge the associated Overages and/or Subscription Fees and any applicable Taxes in arrears or at the time the applicable upgrade order is placed, respectively. You consent to the disclosure of your Billing Information to such Payment Processing Provider. You may receive a receipt upon Stitch’s receipt of payment or you may obtain a receipt from the Platform to track your Cloud Subscription status and Fees. Any failure by Customer to provide the electronic payment information within ten (10) days of the execution of an Order Form or commencing use of the Platform on a non-trial basis may result in the cancellation of the transaction by Stitch. Customer hereby waives any requirement it may have to process payments under an invoice via a purchase order and agrees to pay Stitch in accordance with the payment methods described in this Section. Customer agrees to promptly notify Stitch of any change in account number, date of expiration or any other information necessary to ensure uninterrupted processing of the Subscription Fees. Upon execution of an Order Form and completion the payment registration, Customer hereby authorizes Stitch to automatically charge the Subscription Fees for all Cloud Subscriptions purchased under this Agreement and each subsequent renewal thereafter until or unless cancelled or terminated pursuant to this Agreement. Any Subscription Fee not paid when due shall be considered delinquent and Stitch reserves the right to suspend or terminate Customer’s Cloud Subscription in accordance with the terms of this Agreement. Finally, Customer understands and agrees that access to or continued access to, the Platform is contingent upon Stitch receiving payment in full for the Subscription Fee.
4.6. Payment Against Invoice. If you are paying any Fees and/or Taxes by invoice, Stitch will invoice you as follows: (i) for Subscription Fees, Stitch will invoice you in advance on the periodic basis (i.e., monthly or annually) set forth on the applicable Order Form; (ii) for any upgrades to the Service that you order pursuant to Section 4.4, Stitch will invoice you at the time the applicable upgrade order is placed; and (iii) for any Overages, Stitch will invoice you in arrears on a monthly basis. All amounts invoiced are due and payable within thirty (30) days of your receipt of the invoice, unless otherwise specified on the applicable Order Form. Unless otherwise specified on an Order Form, the Fees shall be invoiced upon execution of the applicable Order Form by both Parties. If no Order Form is executed, then upon receipt and acceptance of a valid purchase order by Stitch.
4.7. Payment Information. You will keep your contact information and Billing Information up to date. Changes may be made on your billing page on the Website.
4.8. Non-Cancelable and Non-Refundable. Except as expressly stated in Section 8.2, all Fees and Taxes payable under this Agreement are non-cancelable, and all payments made are non-refundable.
4.9. Purchases through Resellers. In the event Customer purchases Subscription licenses to the Service (including any renewals thereof) and/or purchases the Professional Services through an authorized reseller of Stitch, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to pricing, payment or taxes. Such terms and conditions shall be negotiated solely by and between Customer and such authorized reseller. In the event Customer ceases to pay the reseller, or terminates its agreement with the reseller, Stitch shall have the right to terminate Customer’s access to the Service at any time upon thirty (30) days’ prior written notice to Customer unless Customer and Stitch have agreed otherwise in writing.
Term, Termination, and Suspension
5.1. Term. This Agreement shall commence on the Effective Date and shall, unless earlier terminated under Section 5.2 below, continue in force until the expiration of the applicable Subscription Term. The Subscription Term shall be set forth on the Order Form.
5.2. Termination; Post-Termination. Customer may terminate the Service and this Agreement upon written notice to Stitch (may be via email) or through the Platform: (i) during the Free Trial Period, if any, in which case the termination shall take immediate effect; or (ii) at any time for annual or month-to-month subscriptions outside the Free Trial Period, in which case the termination shall take effect on the next monthly or annual anniversary date, as applicable. In the event that Customer terminates the Service or this Agreement for convenience prior to the end of an applicable annual subscription outside of the Free Trial Period, Customer shall not be entitled to any refund and shall pay all unpaid fees due for the remainder of the applicable annual Subscription Term. Either Party may, upon written notice to the other Party, terminate this Agreement (x) for material breach by the other Party if such Party has failed to cure such material breach within thirty (30) days of receiving written notice of such material breach from the non-breaching Party.; (y) if such termination is required by applicable law, rule or regulation; or (z) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors, in which case the termination shall take immediate effect. For Subscriptions other than Free Trial Periods, annual Subscriptions or month-to-month, you will be required to enter into a separate written agreement with Stitch. Without limiting any of the foregoing and in addition thereto, Stitch may terminate this Agreement upon written notice to you under the circumstances set forth in Section 8.2 below. Notwithstanding the foregoing, this Agreement shall automatically terminate in the event that Customer intentionally breaches the scope of the license granted in Section 2.1 of this Agreement. Unless earlier terminated in accordance with this Section, upon the expiration of the Subscription Term, Customer’s Subscription will cease, unless Customer and Stitch have agreed to extend the applicable Subscription Term under this Agreement. In such case, the terms and conditions of this Agreement shall remain in full force and effect throughout the duration of the extended Subscription Term. Upon termination or expiration of this Agreement, for any reason, Stitch will stop providing the Service, and Customer shall promptly cease all access to and use of the Service, the Free Products, the Beta Features, the Website, and the Platform. If Stitch terminates this Agreement pursuant to this Section 5.2, you will promptly pay, or Stitch may automatically charge your credit card or other payment instrument, all unpaid Fees and Taxes through the end of the Term. Upon written request each Party shall either return to the other Party (or, at such other Party’s instruction, destroy and provide such other Party with written confirmation of the destruction of all documents, computer files, and other materials containing any of such other Party’s Confidential Information that are in its possession or control.
5.3. Suspension of the Service. In addition to its other rights under this Agreement, Stitch may suspend Customer’s access to the Service upon written notice to (a) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (b) for Customer’s non-payment of the applicable Fees, or for (c) any unauthorized use of the Service by Customer or any of its Authorized Users. Stitch will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Service is suspended for non-payment, Stitch may, in its sole discretion, charge a re-activation fee to reinstate them. You will promptly reimburse Stitch for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees Stitch incurs, to the extent necessitated by your refusal to pay amounts that you are not disputing in good faith. If suspended, Stitch will promptly restore use of the Service to Customer as soon as the event giving rise to the suspension has been resolved to Stitch’s satisfaction.
5.4. Survival. All payment obligations under Section 4 (“Fees, Payment, and Taxes”), plus Sections 2.9 (“Beta Features”); 2.10 (“Free Products”); 5.2 (“Termination; Post Termination”); 6 (“Confidentiality; Customer Data”); 7.4 (“Warranty Disclaimer and Limitations”); 8 (“Intellectual Property; Infringement Claims”); 9 (“Limitation of Liability”); 10 (“Governing Laws, Jurisdiction and Notices”); 11 (“Miscellaneous”), and 5.4 (“Survival”), shall survive any termination or expiration of this Agreement.
Confidentiality; Customer Data
6.1. Confidential Information. Each Party (“Receiving Party”) agrees to retain in confidence any information provided to it by the other party (“Disclosing Party”) that is marked, labeled or otherwise designated as confidential or proprietary or that Receiving Party knew, or should have known, was confidential due to the circumstances surrounding the disclosure by the Disclosing Party (”Confidential Information”). Confidential Information further means: (i) with respect to Stitch, the Platform, the Website, and any and all source code relating thereto, the terms of each Order Form, and any and all trade secrets and other non-public, confidential and/or proprietary information or material regarding Stitch and its Affiliates or any of its or their legal or business affairs, financing, customers (including customer lists), technology, systems, output, activities, plans, properties, pricing, data, or software (including all programs, object code, source code, outlines, routines, subroutines, revisions, supplements, modules, and upgrades, in each case, in any language, format or medium), in each case, that may be obtained or learned by or disclosed to you or your Representatives (as defined below) in the course of, in connection with and during the Term of this Agreement; and (ii) with respect to you, your Customer Data, Extracted Data, Loaded Data and any other non-public, confidential and/or proprietary information or material regarding you and your Affiliates or any of your or their legal or business affairs, financing, customers (including customer lists), input, activities, plans, properties, or data, in each case, that may be obtained or learned by or disclosed to you or any of your Representatives in the course of, in connection with and during the Term of this Agreement. The Receiving Party’s nondisclosure obligation shall apply to any information which the Receiving Party can document (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of, the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by the Receiving Party without reference to the other party’s Confidential Information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Each party will at all times, both during the Term of this Agreement and thereafter, keep in trust and confidence all Confidential Information of the other party and shall only disclose Confidential Information to its employees, agents, representatives, affiliates and authorized contractors or subcontractors (collectively “Representatives”) having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party’s limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives’ agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Notwithstanding anything set forth in this Agreement, in the event the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information pursuant to applicable law, rule, regulation, regulator request of order, the Receiving Party will, to the extent permitted by such requirement, provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information. Each party is liable for all acts and omissions of the Representatives related to the other party’s Confidential Information. Each Party agrees to give notice to the other Party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
6.3. Sensitive Personal Information. As discussed in Section 6.4 below, Stitch will do its best to protect your Extracted Data, Loaded Data and Usage Data, but cannot guarantee its security. You agree to remove all Sensitive Personal Information before enabling Stitch’s access to your Extracted Data. Any access to Extracted Data that includes Sensitive Personal Information is at your own risk. Stitch will not have any liability that may result from your disclosure of such information to Stitch. If you intend to provide any Sensitive Personal Information as part of your Extracted Data, you will need to notify Stitch in writing and receive Stitch’s written consent prior to providing Stitch with such access. For example, if you provide any protected health information (“PHI”) as part of your Extracted Data, Stitch will require, and you will need to, enter into Stitch’s Business Associate Agreement (“BAA”). Please contact the Stitch team at firstname.lastname@example.org to receive additional details. To the extent any provision in the BAA or any other document you agree to with Stitch for purposes of providing Stitch with access to Sensitive Personal Information as part of your Extracted Data is inconsistent with this Agreement, then the provision of the BAA or such other document will govern, as applicable. To the extent any of your data, including Personal Information and personal data (as defined in Section 6.6 below) is accessed by Stitch as part of your Extracted Data, you agree that you have all rights and authorities necessary to process such data in accordance with the terms of this Agreement and that Stitch’s processing on your behalf shall not violate any applicable laws or any person or entity’s proprietary, privacy or intellectual property rights. You are solely responsible for (i) the content and legality of such data; (ii) ensuring compliance with all laws applicable to such data; (iii) your configuration and use of the Service, the Free Products, the Beta Features, the Platform and the Website; and (iv) taking appropriate action to secure, protect and backup such data, which may include use of encryption to protect such data from unauthorized access. For the avoidance of doubt, no other Personal Information or personal data, other than the protected categories described under “Sensitive Personal Information” are required to be removed from your Extracted Data.
6.4. Data Security. Stitch shall employ commercially reasonable physical, administrative, and technical safeguards to secure your Extracted Data, Loaded Data and Metadata on the Platform from unauthorized use or disclosure. Some of such data may be subject to governmental regulation or otherwise may require security measures beyond those set forth herein. Unless Stitch has first agreed in writing to provide such additional required security measures, Stitch shall have no obligation to do so or any liability in connection therewith.
6.5. Aggregated Data. Stitch may combine the Metadata with other similar data, and use such combined data to create Aggregated Data in accordance with the license grant set forth in Section 2.1.
6.6. European Economic Area. If you are established in, or any of the Extracted Data, Loaded Data, or Metadata contains the personal data of individuals in, the European Economic Area, Stitch will process any personal data you submit to Stitch when you use the Service in accordance with the Data Protection Addendum (DPA). You can download the Stitch DPA here, which will be supplemental to this Agreement. For the purposes of this Section 6.6, the terms “personal data” and “process” shall have the meanings given to them in the GDPR. To submit a signed DPA to Stitch, please use the DPA Submission Form.
6.7. Feedback. You may choose to or Stitch may invite you to submit comments or ideas about the Service and/or the Platform, including without limitation, about any of the Beta Features or Free Products and how to improve any of the foregoing (collectively, “Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Stitch under any fiduciary or other obligation, and that Stitch is free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Stitch does not waive any rights to use similar or related ideas previously known to Stitch, or developed by Stitch’s employees, or obtained from sources other than you.
Representations and Warranties; Disclaimer
7.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
7.2. Additional Representations and Warranties of Stitch. In addition to the representations and warranties set forth in Section 7.1, Stitch represents and warrants to you that the support services and any Professional Services shall be performed in a professional and workmanlike manner. Stitch further represents and warrants to you that Stitch will provide the Platform, the Services, and/or the Website in a manner consistent with general industry standards and that the Platform, the Service, and/or the Website will perform substantially in accordance with the applicable Documentation for the Platform, the Service, and/or the Website, under normal use and circumstances during the Subscription Term.
7.3. Your Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 7.1, you represent and warrant to Stitch that your Extracted Data contains no Prohibited Content (except to the extent that such Prohibited Content consists of Sensitive Personal Information expressly permitted in writing by Stitch) and that you have the right to provide Stitch the Extracted Data in accordance with this Agreement.
7.4. Warranty Disclaimer and Limitations. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, SECTION 7.2, AND SECTION 7.3, THE SERVICE, THE PLATFORM, THE WEBSITE, ANY BETA FEATURES, ANY FREE PRODUCTS, THEIR COMPONENTS, THE DOCUMENTATION, THE SUPPORT SERVICES, ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND STITCH AND ITS LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SERVICE, THE PLATFORM, THE WEBSITE, ANY BETA FEATURES, ANY FREE PRODUCTS, THEIR COMPONENTS, THE DOCUMENTATION, THE SUPPORT SERVICES, AND ANY OTHER MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, STITCH AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE PLATFORM, DOCUMENTATION, AND SERVICES PROVIDED BY STITCH HEREUNDER, AND WITH RESPECT TO THE USE OF THE FOREGOING, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. FURTHER, STITCH DOES NOT WARRANT RESULTS OF USE OR THAT THE PLATFORM WILL BE ERROR-FREE OR THAT THE CUSTOMER’S USE OF THE PLATFORM WILL BE UNINTERRUPTED. TO THE EXTENT THAT EITHER PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. WITHOUT LIMITING THE FOREGOING, NEITHER STITCH, STITCH’S AFFILIATES, NOR STITCH’S LICENSORS WARRANT THAT THE CONTENT YOU RECEIVE THROUGH THE SERVICE, THE BETA FEATURES, THE FREE PRODUCTS, THE PLATFORM AND/OR THE WEBSITE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE, THE BETA FEATURES, THE FREE PRODUCTS, THE PLATFORM AND/OR THE WEBSITE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE, THE BETA FEATURES, THE FREE PRODUCTS, THE PLATFORM AND/OR THE WEBSITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE, THE BETA FEATURES, THE FREE PRODUCTS, THE PLATFORM AND/OR THE WEBSITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, THE BETA FEATURES, THE FREE PRODUCTS, THE PLATFORM OR THE WEBSITE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR SYSTEMS OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE, THE BETA FEATURES, THE FREE PRODUCTS, THE PLATFORM OR THE WEBSITE. STITCH USES A THIRD-PARTY DATA CENTER TO HOST THE PLATFORM. CUSTOMER ACKNOWLEDGES THAT STITCH DOES NOT CONTROL THE TRANSFER OF DATA OVER SUCH THIRD-PARTY FACILITIES, INCLUDING THE INTERNET, AND THAT THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH THIRD-PARTY FACILITIES. STITCH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Intellectual Property Infringement Claims
8.1. Obligations. Subject to the applicable conditions and limitations set forth in this Section 8, Stitch will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the Platform and/or the Website infringes such party’s patent registered in the United States, or any copyright or trademark of such party registered in the jurisdiction of Customer’s use of the Platform and/or the Website, or makes intentional, unlawful use of such party’s trade secret (each an “Infringement Claim”) and (ii) pay any settlement of such Infringement Claim consented to by Stitch or pay any damages finally awarded to such party by a court of competent jurisdiction as the result of such Infringement Claim.
8.2. Remedies. If, during the Subscription Term, the Platform and/or the Website are, or in Stitch’s reasonable opinion are likely to become, the subject of a claim of an Infringement Claim, Stitch may, at its expense and option: (i) obtain the right for Customer to continue to use the Platform and/or the Website; (ii) modify the Platform and/or the Website so that it becomes non-infringing and but is substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate Customer’s license to use the Platform and/or the Website and promptly refund to Customer any pre-paid, but unused Subscription Fees paid by Customer for the Subscription or Service that was fulfilled prior to such termination. This Section 8.2, together with the indemnity provided under Section 8.1, states your sole and exclusive remedy, and Stitch’s sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
8.3. Conditions. The obligations of Stitch in Section 8.1 are conditioned upon Customer (i) notifying Stitch promptly of any threatened or pending Infringement Claim; (ii) giving Stitch reasonable assistance and information requested by Stitch in connection with the defense or settlement of the Infringement Claim; and (iii) tendering to Stitch sole control over the defense and settlement of the Infringement Claim. Customer’s counsel will have the right to participate in the defense of the Infringement Claim, at Customer’s own expense. Customer will not, without the prior written consent of Talend, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Infringement Claim.
8.4. Exclusions. Stitch will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) Customer’s or Customer’s Authorized Users’ use of: any version of the Platform and/or Website not made available directly through Stitch or an authorized Talend reseller; (ii) Customer’s or its Authorized User’s use of (a) the Beta Features and/or the Free Products; or (b) the Platform and/or the Website not in accordance with the documentation or this Agreement; (iii) a modification of the Platform and/or the Website that is not performed by Stitch; (ii) the combination, operation, or use of the Platform and/or the Website with any other products, services, or equipment not provided by Stitch; (iii) an action, claim or proceeding arises from any use of the Platform and/or the Website for which they were not designed; (iv) the failure of Customer to use an Update of the Platform and/or Services that would avoid the infringement; (v) any intellectual property right owned or licensed by Customer, excluding the Platform or Website, or (vi) any third party Open Source Software.
8.5. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF STITCH, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE PLATFORM AND/OR THE WEBSITE.
8.6. Customer Indemnification. Customer shall indemnify and hold Stitch, its licensors, and its Affiliates, officers, directors, employees, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with the claim of a third party or data subject alleging that (i) your or any of your Authorized Users’ breach or violation of this Agreement, or (ii) the Customer Data, Usage Data, Extracted Data, Loaded Data, and/or Stitch’s use of any of the foregoing in accordance with this Agreement, has infringed the rights of, defamed, or otherwise caused harm to, a data subject or a third party, or violated applicable law; provided in any such case that Stitch (a) gives written notice of the claim promptly to you or the appropriate Customer representative; (b) gives Customer sole control of the defense and settlement of the claim (provided that any settlement releases Stitch of all liability and such settlement does not affect Stitch’s business); and (c) provides to Customer, at Customer’s expense, all available information and assistance reasonably requested; and (d) has not compromised or settled such claim.
Limitation of Liability
9.1. Disclaimer of Certain Damages. IN NO EVENT SHALL CUSTOMER OR STITCH OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM, WEBSITE, OR SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. STITCH WILL REMAIN LIABLE FOR DEATH AND PERSONAL INJURY IN JURISDICTIONS WHERE THIS LIABILITY MAY NOT BE RESTRICTED. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. STITCH IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. CUSTOMER IS FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9.1 SHALL NOT APPLY TO A BREACH THROUGH GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT BY CUSTOMER OF THE SCOPE OF THE LICENSE GRANTED IN SECTION 2.1, CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING, OR TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY) OF THIS AGREEMENT.
9.2. Damages Cap. IN NO EVENT SHALL STITCH’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY STITCH UNDER THIS AGREEMENT FOR THE PLATFORM OR SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
9.3. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
Governing Laws, Jurisdiction and Notices
10.1. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard for choice of law provisions thereof.
10.2. Notices. Any notice or other communication under this Agreement given by either Party to the other will be deemed to be properly given if given: (i) in writing and delivered in person; (ii) by facsimile, if acknowledged received by return facsimile or followed within one day by a delivered or mailed copy of such notice; (iii) by mail, if mailed, properly addressed and stamped with the required postage to the corresponding address stated above; or (iv) by next day delivery, if mailed by a major commercial delivery service. Either Party may from time to time change its address for notices under this Section by giving the other Party notice of the change in accordance with this Section 10.2
11.1. Assignment. Customer may not assign this Agreement, in whole or in part, without the prior written consent of Stitch. Any assignment in violation of this Section 11.1 shall be null and void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the Parties and their respective successors and assigns.
11.2. Customer Identification. Stitch may, upon Customer’s written approval, identify Customer as a user of the Platform and/or the Services, as applicable, on its Website, through a press release issued by Stitch and in other promotional materials. Customer also agrees to cooperate with Stitch in writing a case study exposing how the Platform and/or the Services are being used and the benefits the Customer is deriving from this use.
11.3. Applicable Laws. Customer acknowledges that the Platform is subject to U.S. export control laws and regulations. Customer warrants that it (and its Authorized Users) is now and will remain in the future compliant with all export control laws and regulations, and will not (and will not permit its Authorized Users or any third parties to) export, re-export, or otherwise transfer or disclose the Platform, the Website, or the Service to any person contrary to such laws or regulations. Stitch and its customers adhere to the Foreign Corrupt Practices Act [15 U.S.C. § 78dd-1, 15 U.S.C. §§ 78m(b)(2)(A) and (B)of 1977 and the UK Anti-Bribery Act of 2010 and denounce any form of bribery and other unethical behavior in its business negotiations.
11.4. Fees. In any judicial proceeding between Customer and Stitch arising out of or relating to this Agreement, the prevailing Party shall be entitled to recover all reasonable expenses incurred as a result of the proceeding, including reasonable attorneys’ fees.
11.5. Force Majeure. Neither Party will be liable for, or considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such Party’s reasonable control.
11.6. Non-Waiver. any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
11.7. Modifications. Any modification to this Agreement must be in a writing signed by both Parties; provided, however, that Stitch may modify this Agreement at any time by posting such modification on the Platform and providing you notice of such update, and any such modification shall automatically go into effect thirty (30) days after it is so posted.
11.8. Independent Contractors. The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
11.9. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
11.10. Third-Party Beneficiaries. Except as set forth in Section 11.1, there are no other third-party beneficiaries under this Agreement.
11.11. Language, Construction and Interpretation. The governing language of this Agreement shall be English. Any translation of this Agreement is made for information purposes only and the English language version shall prevail. The captions, titles and headings are included in this Agreement for convenience and reference only and do not affect the construction or interpretation of this Agreement. The words “including, “includes,” or “include” or “e.g.” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance.
11.12. Entire Agreement. This Agreement, any exhibits attached hereto or referenced herein, and any Order Form accepted by the Parties that references this Agreement (which is hereby incorporated herein by this reference), completely and exclusively state the entire agreement of the Parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the Parties, oral or written, regarding such subject matter. In the event of conflict or inconsistency among any exhibit, this Agreement and an applicable Order Form, the following order of precedence shall apply: (a) the Order Form (b) this Agreement, (c) any exhibit hereto. Without limiting the foregoing, this Agreement will supersede any conflicting terms in any “click-to-accept” end user license agreement that may be included with the Platform, except for terms regarding Open Source Software which are referenced under Section 1.16 (Open Source Software). The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer, unless the Parties execute a written agreement expressly indicating: (i) that such document shall modify this Agreement; and (ii) that the terms of such purchase order shall supersede and control in the event of any inconsistency.