Terms of Service

What This Agreement Covers

These Customer Terms and Conditions (this "Agreement"), effective as of the date on which you check a box or click a button acknowledging your acceptance of this Agreement or you execute with Stackup an Order that incorporates this Agreement by reference (the "Effective Date"), is by and between Stackup Finance, Inc. a Delaware corporation ("Stackup") and the entity on whose behalf the individual accepting this Agreement accepts this Agreement ("Customer").

The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement.

1. Definitions

• "Authorized User" means Customer's employees, consultants, contractors, and agents who are authorized by Customer to access and use the Platform under this Agreement.
• "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform.
• "Derivative Data" means data and information related to or derived from Customer Data or Customer's use of the Platform that has been aggregated and/or anonymized by Stackup.
• "Documentation" means Stackup's end user documentation relating to the Platform.
• "Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code.
• "Order" means a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference.
• "Personal Information" means any information that, individually or in combination, does or can identify a specific individual.
• "Platform" means Stackup's proprietary hosted software platform, as made available to Authorized Users from time to time.
• "Professional Services" means training, migration, implementation, integration, or other professional services provided to Customer in connection with its use of the Platform.
• "Sensitive Data" means special categories of data including protected health information, payment cardholder information, social security numbers, and other information subject to specific regulations.
• "Stackup IP" means the Platform, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.
• "Subscription Period" means the time period identified on the Order during which Customer's Authorized Users may access and use the Platform.
• "Usage Limitations" means the usage limitations set forth in this Agreement and the Order.

2. Access and Use

2.1 Provision of Access

Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, including the Usage Limitations, Customer may, solely through its Authorized Users, access and use the Platform during the Subscription Period on a non-exclusive, non-transferable, and non-sublicensable basis. Such use is limited to Customer's internal business purposes and the features and functionalities specified in the Order.

Each Authorized User must have its own unique account on the Platform and Authorized Users may not share their account credentials with one another or any third party. Customer will be responsible for all of the acts and omissions of its Authorized Users in connection with this Agreement.

2.2 Documentation License

Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, Stackup hereby grants to Customer a non-exclusive, non-transferable, and non-sublicensable license to use the Documentation during the Subscription Period solely for Customer's internal business purposes in connection with its use of the Platform.

2.3 Use Restrictions

Customer shall not use the Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:

• Copy, modify, or create derivative works of any Stackup IP
• Rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation to any third party
• Reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform
• Remove any proprietary notices from any Stackup IP
• Use any Stackup IP in any manner that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law
• Access or use any Stackup IP for purposes of competitive analysis or development of a competing software service
• Bypass or breach any security device or protection used by the Platform
• Input, upload, transmit, or otherwise provide any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code

3. Customer Responsibilities

3.1 General

Customer is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.

3.2 Sensitive Data

Customer will not submit to the Platform any Sensitive Data and acknowledges that Stackup is not liable for Sensitive Data.

3.3 Compliance with Laws

Customer shall comply with all applicable local, state, national, and international laws and regulations in connection with its use of the Platform.

4. Fees and Taxes

4.1 Fees

Customer shall pay Stackup the fees set forth in the Order in accordance with the payment terms set forth therein. If Customer fails to make any payment when due, Stackup may suspend Customer's access to the Platform until payment is received.

4.2 Taxes

All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges imposed by any governmental entity.

5. Confidentiality

5.1 Definition

"Confidential Information" means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.

5.2 Obligations

Each party agrees to: (i) maintain the confidentiality of the other party's Confidential Information using the same degree of care it uses to protect its own confidential information; (ii) not use any Confidential Information for any purpose outside the scope of this Agreement; and (iii) not disclose Confidential Information to any third party.

6. Intellectual Property

6.1 Stackup IP

Customer acknowledges that the Platform, Documentation, and all other Stackup IP are proprietary to Stackup and that all right, title, and interest in and to the Stackup IP remain with Stackup.

6.2 Customer Data

Stackup acknowledges that Customer Data is proprietary to Customer and that all right, title, and interest in and to Customer Data remain with Customer.

6.3 Feedback

If Customer provides any feedback, suggestions, or recommendations to Stackup regarding the Platform ("Feedback"), Customer hereby assigns to Stackup all right, title, and interest in and to such Feedback.

7. Term and Termination

7.1 Term

The term of this Agreement begins on the Effective Date and continues until terminated as provided herein.

7.2 Termination for Convenience

Either party may terminate this Agreement for any reason upon thirty (30) days' prior written notice to the other party.

7.3 Termination for Cause

Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof.

7.4 Effect of Termination

Upon termination of this Agreement: (i) all licenses and rights granted hereunder will immediately terminate; (ii) Customer will cease all use of the Platform and Documentation; and (iii) each party will return or destroy all Confidential Information of the other party.

8. Warranty Disclaimer

THE PLATFORM AND DOCUMENTATION ARE PROVIDED "AS IS" AND STACKUP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. STACKUP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

STACKUP MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9. Limitation of Liability

IN NO EVENT WILL STACKUP BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER STACKUP WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.

IN NO EVENT WILL STACKUP'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED THE TOTAL AMOUNTS PAID TO STACKUP UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Indemnification

Customer shall indemnify, hold harmless, and defend Stackup from and against any and all losses, damages, liabilities, costs, and expenses arising out of or relating to any claim concerning: (i) Customer's breach of this Agreement; (ii) Customer Data; (iii) Customer's violation of applicable law; or (iv) Customer's negligence or willful misconduct.

11. General Provisions

11.1 Governing Law

This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision.

11.2 Dispute Resolution

Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved within sixty (60) days after notice must be finally settled by arbitration in Los Angeles County, California using the English language in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS.

11.3 Assignment

Customer may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Stackup. Any purported assignment or delegation in violation of this Section will be null and void.

11.4 Amendment

Stackup may change this Agreement from time to time at its discretion. Stackup will provide Customer with reasonable notice prior to any amendments or modifications taking effect. If Customer accesses or uses the Platform after the effective date of the revised Agreement, such access and use will constitute Customer's acceptance of the revised Agreement.

11.5 Force Majeure

Neither Party shall be liable to the other Party for any failure or delay in performing its obligations under this Agreement if such failure or delay is caused by circumstances beyond such Party's reasonable control, including acts of God, flood, fire, earthquake, war, terrorism, or passage of law.

11.6 Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement.

11.7 Entire Agreement

This Agreement, together with any Orders and Statements of Work, constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein.

Contact Information

If you have any questions about these Terms of Service, please contact us at support@stackup.sh.