STAINLESS TERMS AND CONDITIONS

PLEASE READ THIS STAINLESS SELF-SERVICE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES (“SERVICE,” “SERVICES”) OFFERED BY STAINLESS SOFTWARE, INC. (“STAINLESS”). ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA STAINLESS’ STANDARD ONLINE PROCESS (“ORDER FORM”) AND WHICH IS ACCEPTED BY STAINLESS SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU (“YOU,” “CUSTOMER”) ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

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1. SERVICES AND SUPPORT

1.1 Subject to the terms and conditions of this Agreement, Stainless hereby grants to Customer a non-exclusive, non-transferable license to access and use the Services during the Service Term solely for Customer’s internal use.  The Services are subject to modification from time to time at Stainless’s sole discretion, for any purpose deemed appropriate by Stainless.  Stainless will use reasonable efforts to give Customer prior written notice of any such modification.

1.2 Stainless reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Stainless.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer may be required to sign up for an account, select a password and user name (“Stainless User ID”), and provide Stainless with certain information or data, such as contact information. Customer agrees to provide Stainless with accurate, complete, and updated registration information. Customer may not select as its Stainless User ID a name that it does not have the right to use, or another person’s name with the intent to impersonate that person. Customer may not transfer its account to anyone else without Stainless’ prior written permission. Customer may be able to access certain parts or features of the Services by using account credentials from other third party services, such as sign-in services offered by Google or GitHub (each of the foregoing, a “Third Party Account”). By using the Services through a Third Party Account, Customer permits Stainless to access certain information from such account for use by the Services. Customer will not share its Stainless User ID, account or password with anyone, and Customer must protect the security of its Stainless User ID, account, password and any other access tools or credentials. Customer is responsible for any activity associated with its Stainless User ID and account.

2.2 Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or Software, except to the extent permitted by Stainless; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (v) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy (including, without limitation, in Europe), intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).

2.3 Customer hereby agrees to indemnify and hold harmless Stainless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Stainless has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Stainless may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.4 Customer will be responsible for maintaining the security of Customer’s Stainless account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer’s Stainless account with or without Customer’s knowledge or consent.

2.5 Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Stainless is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services.  Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof.  Stainless does not make any representations or warranties with respect to Third Party Services or any third party providers.  Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

3. CONFIDENTIALITY

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  

3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to  take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Stainless may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.

3.3 Customer acknowledges that Stainless does not wish to receive any Proprietary Information from Customer that is not necessary for Stainless to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Stainless may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.

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‍4.INTELLECTUAL PROPERTY RIGHTS

4.1 Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services or Software.

4.2 Stainless will obtain and process certain content/data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content distributed through the Services and the intellectual property rights with respect to that Content.  If Stainless receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Stainless may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Stainless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.

4.3 Stainless shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Stainless is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Stainless will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Stainless, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Stainless, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Stainless from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Stainless’s indemnity obligation by the preceding sentence.

5. FEES

5.1 The Services may be free or Stainless may charge a fee for using the Services. If Customer is using a free version of the Services, Stainless will notify Customer before any Services Customer is then using begin carrying a fee, and if Customer wishes to continue using such Services, Customer must pay all applicable fees for such Services.

5.2 Certain of the Services may be subject to payments now or in the future (the “Paid Services”). Any payment terms presented to Customer in the process of using or signing up for a Paid Service are deemed part of this Agreement. Stainless uses a third-party payment processor (the “Payment Processor”) to bill Customer through a payment account linked to Customer’s account on the Services (“Billing Account”) for use of the Paid Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Currently, Stainless uses Stripe, Inc. as its Payment Processor. Customer is not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use Paid Services, Customer agrees to pay Stainless, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms, and Customer authorizes us, through the Payment Processor, to charge Customer’s chosen payment provider (“Payment Method”). Customer agrees to make payment using that selected Payment Method. Stainless reserves the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. If Stainless, through the Payment Processor, does not receive payment from Customer, Customer agrees to pay all amounts due on Customer’s Billing Account upon demand.

5.3 Some of the Paid Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledges that such Services have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. STAINLESS MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY STAINLESS) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE STAINLESS REASONABLY COULD ACT.

5.4 CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR CUSTOMER’S BILLING ACCOUNT. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP CUSTOMER’S BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY STAINLESS OR STAINLESS’ PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF CUSTOMER’S USER NAME OR PASSWORD. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT STAINLESS MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF PAID SERVICES UNDER CUSTOMER’S BILLING ACCOUNT UNLESS CUSTOMER HAS TERMINATED THE PAID SERVICES AS SET FORTH ABOVE.

5.5 If the amount to be charged to Customer’s Billing Account varies from the amount Customer preauthorized (other than due to the imposition or change in the amount of state sales taxes), Customer has the right to receive, and Stainless shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement Customer has with Customer’s payment provider will govern Customer’s use of its Payment Method. Customer agrees that Stainless may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle

5.6 Unless Customer opts out of auto-renewal, which can be done through Customer’s account settings, any Paid Services Customer has signed up for will be automatically extended for successive renewal periods of the same duration as the Service Term originally selected, at the then-current non-promotional rate. Customer can change or resign Customer’s Paid Services at any time by going to its account settings.  If Customer terminates a Paid Service, Customer may use its subscription until the end of the then-current Service Term, and Customer’s subscription will not be renewed after Customer’s then-current Service Term expires. Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current Service Term. IF CUSTOMER DOES NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, CUSTOMER MUST CANCEL THE APPLICABLE PAID SERVICE OR TERMINATE THIS AGREEMENT BEFORE THE END OF THE RECURRING SERVICE TERM. PAID SERVICES CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH CUSTOMER HAS ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, STAINLESS WILL NOT REFUND ANY FEES THAT CUSTOMER HAS ALREADY PAID.

5.7 Any free trial or other promotion that provides access to a Paid Service must be used within the specified time of the trial. Customer must stop using a Paid Service before the end of the trial period in order to avoid being charged for that Paid Service. If Customer cancels prior to the end of the trial period and is inadvertently charged for a Paid Service, please contact Stainless at [email protected].

6. TERMINATION

6.1 Subject to earlier termination as provided below, this Agreement is for the Service Term as specified in the Order Form.

6.2 In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period.  Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.

6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.

7. DATA PRIVACY

7.1 Stainless shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Content. Stainless is not responsible to Customer for unauthorized access to the Content or the unauthorized use of the Services unless such access is due to Stainless’ gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use.

7.2 Stainless uses session-logging technologies provided by third parties, such as LogRocket, to record Customer’s interactions with the Services to help Stainless diagnose technical issues and improve the Services. These technologies allow Stainless to capture activities such as clicks, mouse movements, and scrolls when Customer uses the Services. LogRocket’s ability to use and share information collected by LogRocket about Customer’s visits to the Services is subject to LogRocket’s applicable terms and policies.

8. WARRANTY DISCLAIMER

EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES, SOFTWARE AND STAINLESS PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND.  STAINLESS (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

IN NO EVENT WILL  STAINLESS (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF STAINLESS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF STAINLESS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO STAINLESS HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.  As defined in FAR section 2.101, any software and documentation provided by Stainless are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.  

11. MISCELLANEOUS

11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Stainless’s prior written consent. Stainless may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Stainless in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Stainless will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction.