Master Terms and Conditions
Last Updated: October 31st, 2018
You (“Subscriber,” “you,” or “your”) and Stitch Inc. (“Stitch,” “our,” “us,” or “we”) are bound by these Master Terms and Conditions, including any and all terms set forth on each Order Page (collectively, the “Agreement”).
NATURE OF AGREEMENT.
1.1 Binding Nature. Please read this Agreement carefully before accessing or using the Platform, because by doing any of the foregoing, clicking “I Agree,” or otherwise manifesting assent to this Agreement, Subscriber agrees to be bound by the terms of this Agreement. If you do not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform. If you open an account on behalf of a company, organization or other entity (each, an “Organization”), then (a) “you” and “Subscriber” includes you and that Organization, and (b) you represent and warrant that you are an authorized representative of that Organization with the authority to bind that Organization to this Agreement, and that you agree to this Agreement on that Organization’s behalf
2.1 “Account Parameters” means the parameters within which you and your Authorized Users may access and use the Platform, as set forth on the Order Page.
2.2 “Affiliate” means, with respect to a Party, any entity existing from time to time that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
2.3 “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.
2.4 “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”.
2.5 “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.
2.6 “Confidential Information” means: (i) with respect to Stitch, the Platform, the Website, and any and all source code relating thereto, the terms of each Order Page, and any and all trade secrets and other non-public, confidential and/or proprietary information or material regarding us and our Affiliates or any of our 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 any of your directors, officers, employees, consultants or agents (collectively, “Representatives”) in the course of, in connection with and during the Term of this Agreement; and (ii) with respect to you, your 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 directors, officers, employees, consultants or agents (collectively, “Representatives”) in the course of, in connection with and during the Term of this Agreement. Notwithstanding any of the foregoing, Confidential Information of a Party does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party which, to the best of the Receiving Party’s knowledge, is not prohibited from disclosing such information to the Receiving Party by a legal, contractual or fiduciary obligation to the Disclosing Party.
2.7 “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.
2.8 “Extracted Data” means, any data that you or your Authorized Users enable Stitch to access and extract from the Servers to the Platform.
2.9 “Fees” means, collectively, the Subscription Fees, any Professional Services Fees, and any other fees we charge for our products, services, or data.
2.10 “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”.
2.11 “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 Data through the Services, following your account registration.
2.12 “Initial Subscription Term” means the initial period when we will provide you the Service, as set forth on the Order Page.
2.13 “Loaded Data” means, any data that Stitch transfers or loads onto the Servers via the Platform.
2.14 “Order Page” means the page accessed 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.
2.15 “Overage” means any use of the Platform in excess of the Account Parameters as shown on your home page.
2.16 “Party” means you or us, as applicable, and “Parties” means you and us collectively.
2.17 “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.
2.18 “Platform” means our proprietary, cloud-based platform.
2.19 “Professional Services” means any professional services that you may request from us from time to time and we provide to you pursuant to a separate written agreement between us and you, such as training, installation, integration, or consulting services.
2.20 “Professional Services Fees” means the fees we charge for the Professional Services, as set forth in the applicable written agreement for Professional Services entered into between us and you.
2.21 “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 us in our sole, but reasonable, discretion.
2.22 “Renewal Subscription Terms” means any renewal periods after the Initial Subscription Term during which we will provide you the Service, as forth on the Order Page.
2.23 “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”), 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.
2.24 “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, we may manage a separate instance for you on the servers of our third-party hosting provider.
2.25 “Service” means our 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.
2.26 “Subscription Fees” means the fees for the Service set forth on the Order Page.
2.27 “Subscription Term” means the Free Trial Period, if any, the Initial Subscription Term, and any Renewal Subscription Terms, collectively.
2.28 “Usage Data” 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.
2.29 “Website” means any website through which we provide access to the Platform, including [insert URL].
TRIAL PERIOD AND SUBSCRIPTION SERVICE.
3.1 License. Subject to your payment of any applicable Fees (as defined below) and your compliance with all other terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited, right and license during the Trial Period and/or the applicable Term (as defined below), if any, to access and use the Platform, the Website and the Service, solely for your internal business purpose.
3.2 Free Trial Period. We 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 Page 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 we will automatically set capacity limitations.
3.3 Subscription Service. During the Subscription Term, we 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 Page. 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 us 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, our Help Desk, or any other channel.
3.4 Changes to Service. At any time, you may subscribe to additional features of the Service and/or upgrade the Account Parameters through the Order Page. At the conclusion of the Free Trial Period the Order Page 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 Page.
3.5 Stitch Modifications. We may modify the Platform and our Website from time to time by adding or deleting features to improve the user experience.
3.6 Customer Support. We will provide customer support as described on the Website or Platform, including through our help center, which has detailed information about how to use Stitch. Primary technical information is provided through documentation available on the Platform. Additionally, we offer Chat Support for all users, which you can access after you sign in. We do our best to respond within about 15 minutes during business hours (8 a.m. - 8 p.m. Eastern Time).
3.7 Beta Features. From time to time, you may be able to access and try our Beta Features. You may choose to access such Beta Features at your sole discretion. An important part of our beta process is getting real-world testing of the Beta Features before a general release. If you choose to try out our 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 our Service or we elect to discontinue such Beta Feature.
Beta Features may materially change prior to commercial launch, or may never be released commercially. We may discontinue Beta Features at any time in our sole discretion and may never make them generally available.
WE 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.
3.8. Free Products. We may, in our sole discretion, provide you with Free Products.You may use such products with or without our Services at your sole discretion. If you use any or all of our 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.
We may discontinue Free Products (or your access to any Free Products) at any time in our sole discretion.
WE 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.
4.1. Professional Services. You may request to have us provide Professional Services in connection with the Service subject to a separate written agreement between you and us. Professional Services Fees for the Professional Services are in addition to the Subscription Fees and are payable in accordance with such separate written agreement.
FEES AND PAYMENT.
5.1 Fees. The Fees and any applicable Taxes (as defined below) are due and payable as set forth in this Section 5 below. Unless otherwise set forth on the Order Page, we may increase the Fees on a prospective basis by providing you written notice of such increase at least forty-five (45) days in advance. Payments that are past due shall accrue interest at the lesser of one and one half percent (1.5%) per month, or the maximum rate permitted by law. We 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.
5.2. Taxes. The Fees do not include federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which shall be for your account. You will be responsible for all Taxes associated with the Services and your account other than any U.S. taxes based on our income, property, franchise, or employees. Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to the acceptance of this Agreement. If we are required to pay Taxes on your behalf, we shall invoice you for such Taxes, and you shall reimburse us for such amounts in accordance with this Section 5. You hereby agree to defend, indemnify, and hold harmless us and our 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 us on your behalf.
5.3 Subscriptions and Automatic Renewals. Our 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. We will automatically renew your subscription on each monthly or annual anniversary date of your subscription and will charge your then-current payment method associated with your account with the applicable then-current Subscription Fee. We reserve the right to cancel any subscription if we are unable to successfully charge your payment method to renew your subscription. All Subscription Fees are fully earned upon payment. You hereby expressly agree that we may submit periodic charges (e.g., monthly or annually) without further authorization from you until we receive 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 we could reasonably act upon such notice.
5.4 Payment by Credit Card. Payment processing services for our Service are provided by a third-party payment processor. You hereby authorize our third party payment processor, as applicable, to charge your credit card, as follows: (i) for Subscription Fees, our third party payment processor may, as applicable, automatically charge them and any applicable Taxes in advance on the periodic basis (i.e., monthly or annually) set forth on the Order Page; and (ii) for Overages and/or any upgrades to the Service that you order pursuant to Section 3.4, our third party payment processor 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 third-party payment processor. You may receive a receipt upon our receipt of payment or you may obtain a receipt from the Platform to track your subscription status and Fees.
5.5 Payment Against Invoice. If you are paying any Fees and/or Taxes by invoice, we will invoice you as follows: (i) for Subscription Fees, we will invoice you in advance on the periodic basis (i.e., monthly or annually) set forth on the applicable Order Page; (ii) for any upgrades to the Service that you order pursuant to Section 3.4, we will invoice you at the time the applicable upgrade order is placed; and (iii) for any Overages, we will invoice you in arrears on a monthly basis. All amounts invoiced are due and payable upon your receipt of the invoice, unless otherwise specified on the applicable Order Page.
5.6 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.
5.7 Non-Cancelable and Non-Refundable. Except as expressly stated in Section 13.3, all Fees and Taxes payable under this Agreement are non-cancelable, and all payments made are non-refundable.
TERM, TERMINATION, AND SUSPENSION.
6.1 Term. This Agreement commences on the date you first accept it and continues for the duration of the Subscription Term or unless terminated pursuant to Section 6.2. The Subscription Term shall be set forth on the Order Page.
6.2 Termination. You may terminate the Service and this Agreement upon written notice to us (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. Either Party may terminate the Service and this Agreement upon written notice to the other Party (may be via email) or through the Platform (including in the case of Stitch terminating this Agreement and the Service, by posting a notification on the Platform) (x) if such other Party has breached the Agreement and failed to cure such breach within thirty (30) days of receiving written notice thereof; (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 us. Without limiting any of the foregoing and in addition thereto, we may terminate this Agreement upon written notice to you under the circumstances set forth in Section 13.3 below.
6.3. Suspension for Non-Payment. We may suspend the Service immediately if any undisputed payment due to us is over thirty (30) days past due, and such failure to pay will be considered a material breach of this Agreement. We 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 theService are suspended for non-payment, we may, in our sole discretion, charge a re-activation fee to reinstate them. You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay amounts that you are not disputing in good faith.
6.4 Effect of Expiration or Termination. Upon termination or expiration of this Agreement, we will stop providing the Service, and you will stop all access to and use of the Service, the Free Products, the Beta Features, the Website and the Platform. If we terminate this Agreement pursuant to Section 6.2, you will promptly pay, or we 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.
6.5 Survival. The following provisions will survive expiration or termination of this Agreement: Sections 3.7 (“Beta Features”); Section 3.8 (“Free Products”); Section 5 (“Fees and Payment”) until you have paid all Fees and applicable Taxes; Section 6.4 (“Effect of Expiration or Termination”); Section 7 (“Confidentiality”); Section 8.4 (“Aggregated Data”); Section 9 (“Intellectual Property”); Section 11.4 (“Disclaimer”); Section 12 (“Limitation of Liability”); Section 13 (“Indemnification”); Section 14 (“General Provisions”), and this Section 6.5 (“Survival”).
CONFIDENTIALITY. The Receiving Party will: (i) protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care; (ii) not use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; and (iii) not disclose the Disclosing Party’s Confidential Information to any party other than its Representatives, who are bound by obligations of confidentiality as restrictive as those set forth in this Agreement and have a need to know such Confidential Information in order for the Receiving Party to carry out its obligations under this Agreement. 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.
8.2 Sensitive Personal Information. As discussed in Section 8.3 below, we do our 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 our access to your Extracted Data. Any access to Extracted Data that includes Sensitive Personal Information is at your own risk. We will not have any liability that may result from your disclosure of such information to us. If you intend to provide any Sensitive Personal Information as part of your Extracted Data, you will need to notify us in writing and receive our written consent prior to providing us with such access. For example, if you provide any protected health information (“PHI”) as part of your Extracted Data, we will require, and you will need to, enter into our Business Associate Agreement (“BAA”). Please contact the Stitch team at email@example.com to receive additional details. To the extent any provision in our BAA or any other document you agree to with Stitch for purposes of providing us 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 8.5 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 our 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.
8.3 Data Security. We shall employ commercially reasonable physical, administrative, and technical safeguards to secure your Extracted Data, Loaded Data and Usage Data 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 we have first agreed in writing to provide such additional required security measures, we shall have no obligation to do so or any liability in connection therewith.
8.4 Aggregated Data. We may combine the Usage Data with other similar data, and use such combined data to create Aggregated Data in accordance with the license grant set forth in Section 8.1.
8.5 European Economic Area. If you are established in, or any of the Extracted Data, Loaded Data, or Usage Data contains the personal data of individuals in, the European Economic Area, we will process any personal data you submit to us 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 8.5, 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.
8.6 Feedback. You may choose to or we may invite you to submit comments or ideas about the Service and/or the Platform, including without limitation, about any of our 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 us under any fiduciary or other obligation, and that we are 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, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
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 our sole and exclusive property. 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 8.1 and Section 8.4 of this Agreement, all right, title, and interest in and to your Extracted Data and Loaded Data, 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.
USE AND LIMITATIONS OF USE; COOPERATION
10.1 Restrictions on Use. You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Service, the Free Products, the Beta Features, the Platform or the Website; (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 Service, the Free Products, the Beta Features, the Platform or the Website; (iv) make any copies of the Service, the Free Products, the Beta Features, the Platform or the Website; (v) resell, distribute, or sublicense the Service, the Free Products, the Beta Features, the Platform or the Website without our prior written permission in each instance, which we may withhold in our sole and absolute discretion; (vi) remove or modify any proprietary marking or restrictive legends placed on the Service, the Free Products, the Beta Features, the Platform or the Website; (vii) use the Service, the Free Products, the Beta Features, the Platform or Website 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; or (viii) introduce, post, upload, transmit, or otherwise make available to or from the Service, the Free Products, the Beta Features, the Platform or the Website 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).
10.2 Compliance. We have 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 us, including, if applicable, through the payment of additional Subscription Fees, which we may automatically charge and process in accordance with Section 5. Any failure to remedy such non-compliance will be deemed a material breach of this Agreement.
10.3 Onboarding of Authorized Users. Authorized Users must log into the Website and register. During the initial registration, Authorized User will be prompted to create an 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. You are solely responsible for 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. You will promptly inform us of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. We reserve the right to delete or change Authorized Users’ Passwords, Sign-In Names, or Unique Identifiers at any time and for any reason. We will not be liable for any loss or damage caused by any unauthorized use of an Authorized User’s account.
10.4 Cooperation. You acknowledge that our ability to implement and provide the Service and the Professional Services is dependent on your providing us complete, accurate, up-to-date, and timely Extracted Data, information, and other materials. You agree to reasonably cooperate with us; to provide such data, information, and other materials to us; and to cause your personnel and third-party service providers to do the same.
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
11.1 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.
11.2 Additional Representations and Warranties of Stitch. In addition to the representations and warranties set forth in Section 11.1, we represent and warrant to you that the support services and any Professional Services shall be performed in a professional and workmanlike manner.
11.3 Your Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 11.1, you represent and warrant to us 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 us the Extracted Data in accordance with this Agreement.
11.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1, SECTION 11.2, AND SECTION 11.3, 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” AND “AS AVAILABLE,” AND NEITHER PARTY MAKES ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. 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 WE, OUR AFFILIATES, NOR OUR 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.
LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH ANY LIABILITY, LOSS OR DAMAGE ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, YOUR BREACH OF SECTION 7 OR 10.1, YOUR FAILURE TO PAY ANY AMOUNTS DUE AND OWING, OR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE PERIOD SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT, IN THE EVENT OF A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, SUCH PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL LOSSES OR DAMAGES UNDER THIS AGREEMENT ARISING OUT OF SUCH BREACH WILL NOT EXCEED THE FEES PAID BY YOU UNDER THIS AGREEMENT DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
13.1 Indemnification by Stitch. Subject to Section 13.2, we will defend, indemnify, and hold harmless you and your Representatives (collectively, the “Indemnified Parties”) from any and all damages finally awarded or paid in settlement of any third-party action, claim, or proceeding that the use of the Platform and/or the Website in accordance with this Agreement infringes or misappropriates any third-party intellectual property rights, including patents, trademarks, copyrights or trade secrets; provided, however, that the foregoing obligations shall be subject to your: (i) promptly notifying us of the claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise (so long as any settlement (x) does not, without our prior written approval, (A) involve the admission of any wrongdoing by any Indemnified Parties, (B) restrict any Indemnified Parties’ future actions, or (C) require any Indemnified Party to take any action, including the payment of money, and (y) includes a full release of the Indemnified Parties).
13.2 Exceptions to Our Indemnification Obligations. We are not obligated to indemnify, defend, or hold you or any third party harmless hereunder to the extent: (i) an action, claim or proceeding arises from or is based upon your or your Authorized Users’ use of: (a) the Beta Features and/or the Free Products; (b) the Platform and/or the Website not in accordance with the documentation or this Agreement; or (c) any unauthorized modifications, alterations, or implementations of the Platform and/or the Website made by you or at your request (other than by us); (ii) an action, claim or proceeding arises from use of the Platform and/or the Website in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) an action, claim or proceeding arises from any use of the Platform and/or the Website for which they were not designed.
13.3 Infringement Claims. In the event that we reasonably determine that the Platform and/or the Website is likely to be the subject of a claim of infringement or misappropriation of third-party rights, we shall have the right (but not the obligation), at our own expense and option, to: (i) procure for you the right to continue to use the Platform and/or the Website as set forth hereunder; (ii) replace the infringing components of the Platform and/or the Website with other components with the equivalent functionality; or (iii) suitably modify the Platform and/or the Website so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, we may terminate this Agreement without further liability to you, and we shall refund to you an amount equal to a pro rata portion of any Subscription Fees prepaid by you for the Service. This Section 13.3, together with the indemnity provided under Section 13.1, states your sole and exclusive remedy, and our sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
13.4 Indemnification by You. You will defend, indemnify, and hold harmless us, our Affiliates and our and their Representatives (collectively, the “Stitch Parties”) from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any third-party action, claim, or proceeding arising from (i) your or any of your Authorized Users’ breach or violation of this Agreement, or (ii) the Usage Data, Extracted Data, Loaded Data, and/or our use of any of the foregoing in accordance with this Agreement infringing or misappropriating any third-party intellectual property rights, including patents, trademarks, copyrights or trade secrets. We will: (a) promptly notify you of any such action, claim or proceeding; (b) provide you, at your expense, with reasonable cooperation in the defense of such action, claim or proceeding; and (c) providing you with sole control over the defense and negotiations for a settlement or compromise (so long as any settlement (x) does not, without our prior written approval, (A) involve the admission of any wrongdoing by any Stitch Parties, (B) restrict any Stitch Parties’ future actions, or (C) require any Stitch Party to take any action, including the payment of money, and (y) includes a full release of the Stitch Parties).
14.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns. We may subcontract the Professional Services, in whole or in part, in our discretion.
14.2 Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
14.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard for choice of law provisions thereof.
14.4 Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Philadelphia, Pennsylvania for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
14.5 Modifications. Any modification to this Agreement must be in a writing signed by both Parties; provided, however, that we 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.
14.6 Notices. All notices required under this Agreement (other than routine operational communications) must be in writing in one of the following forms. Notices shall be effective upon: (i) actual delivery to the other Party, if delivered in person, or by facsimile, or by e-mail, or by national overnight courier; or (ii) five (5) business days after being mailed via U.S. postal service, postage prepaid.
14.7 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.
14.8 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.
14.9 Force Majeure. Except for your obligations to pay any sums due hereunder, neither Party shall be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, earthquakes, strikes, or shortages of materials or resources.
14.10 Third-Party Beneficiaries. Except as set forth in Section 13.1 and Section 13.4, there are no other third-party beneficiaries under this Agreement.
14.11 Export. You shall not permit Authorized Users or any third parties to access or use the Platform, the Website, or the Service in violation of any United States export embargo, prohibition, or restriction.
14.12 Construction and Interpretation. 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.
14.13 Complete Understanding. This Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.