Terms of Service

STACK IDENTITY SERVICES – TERMS AND CONDITIONS

These STACK IDENTITY SERVICES – TERMS AND CONDITIONS are entered into as of the Effective Date set forth above, and is made by and between the Stack Identity Inc., a Delaware corporation with its principal place of business at 1600 El Camino Real, Suite 280, Menlo Park, CA 94025 entity signing these Terms and Conditions (“Stack Identity”) and the customer entity that signs a Service Order in which these terms and conditions are referenced (“Customer”). The word “Party” refers to, as relevant to the context, Customer or Stack Identity, who are together referred to as “Parties”. The Parties agree as under:

  1. DEFINITIONS. Capitalized Terms not defined elsewhere in the Agreement shall have the meanings set forth below. Defined terms stated in the singular may be used in the plural, and vice versa.

    1. “Actual Use Level” means Customer’s monthly average Use Level as calculated by Stack Identity’s automated usage monitoring tool.
    2. “Affiliate(s)” means, any present or future entity that, directly or indirectly Controls, or is Controlled by, or is under common Control with either Party, where “Control” refers to ownership or direct or indirect control of more than fifty percent (50%) of the voting securities or other ownership interest of the other company or entity, or the direct or indirect power to direct or cause the direction of the management and policies of the other company or entity.
    3. “Agreement” means collectively, these terms and conditions, any documents incorporated by reference in these terms and conditions and the terms of the applicable Services Order or SOW, as applicable. The execution of each Services Order or SOW referencing these terms and conditions, constitutes a separate and independent agreement between the Parties governing the Services covered in such Services Order or SOW.
    4. “Committed Use Level” means the minimum quantity and type of Use Level for which Customer is committed to pay under the Agreement.
    5. “Customer Application/(s)” refers to the cloud-based applications, systems or resources used by or on behalf of the Customer or its Affiliates and in relation to which the Customer has obtained the Services.
    6. “Customer Data” means any information provided or made-available by (or on behalf of) the Customer to Stack Identity as a result of provision of the Subscription Services and which may include, without limitation, the relevant metadata related to Identity/(ies), Cloud Applications and other resources, user information, and usage data, logs, access policies and network configurations.
    7. “Deliverable” means any specifically identified and defined deliverables to be provided in performance of Professional Services.
    8. “Fees” means the fees for the Services agreed to in the relevant Services Order or SOW.
    9. “Identity/(ies)” means each identity monitored by the Service which may refer to a human identity, a role or microservice.
    10. “Initial Period” means the initial minimum period of time for which Customer commits to subscribe to and pay for a Service, as set forth in a Services Order.
    11. “Pre-Existing Materials” means any and all technology and information, methodologies, data, designs, ideas, concepts, know-how, techniques, user-interfaces, templates, documentation, software, hardware, modules, development tools and other tangible or intangible technical material or information that Stack Identity possesses or owns prior to the commencement of Professional Services or which it develops independent of any activities governed by the Agreement. Pre-Existing Materials shall also include any enhancements, modifications or derivatives made by Stack Identity to the Pre-Existing Materials while performing Professional Services hereunder, and any software, modules, routines or algorithms which are developed by Stack Identity during the term in providing the Professional Services to Customer, provided such software, modules, routines or algorithms have general application to work performed by Stack Identity for its other customers and do not include any Customer Data or which, directly or indirectly, incorporate or disclose Customer’s Confidential Information
    12. “Professional Services” means implementation or consulting services that Stack Identity offers to its customers.
    13. “Provisioning Data” means information that Stack Identity needs to configure the Subscription Service, and/or to provide any included technical support for the Subscription Service, including but not limited to, names, e-mail address, read-only accesses to the environment where the relevant Customer Applications are hosted.
    14. “Renewal Period” means each of the subsequent, sequential Service periods following the Initial Period.
    15. “Service Description” means Stack Identity’s standard, then-current description of a Service’s features, including any service-specific additional terms and requirements, and any accompanying service level targets, if applicable.
    16. “Services Order” means the Parties’ mutually-agreed commitment for Subscription Services under the Agreement. A Services Order may take the form of a written order form (including an electronically generated order form), exhibit or statement of work signed by the Parties.
    17. “SOW” means the statement of work or other document entered into or accepted by the Parties containing at a minimum (i) a description of the Professional Services and/or any Deliverable to be delivered to the Customer; (ii) the scope of Professional Services; (iii) the schedule for the provision of such Professional Services; and (iv) the applicable fees and payment terms for such Professional Services.
    18. “Subscription” means a fixed term right to access, use and/or benefit from the Subscription Service.
    19. “Subscription Service” means a Stack Identity branded cloud-based and/or hosted service(s) managed by Stack Identity and made available to the Customer via a network.
    20. “Term” means, for a given Service, the Initial Period together with any Renewal Periods.
    21. “Third Party Software” means certain software products or services with which the Subscription Services interoperate, including open-source software, owned by third parties and licensed directly to the Customer by such third party.
    22. “Use Level” means the applicable unit(s) of measurement by which Stack Identity prices and sells a Subscription, in effect at the time the relevant Services Order is created. (For example, “per Identity” or “per individual Identity” or “per Customer Application Identity”, etc. each could be Use Level for given Subscription).
  2. SERVICES.
    1. Subscription Services. Stack Identity agrees to provide the Subscription Services as described in the Services Description, subject to the terms of the Agreement. The Subscription Services may be updated by Stack Identity from time to time, however Stack Identity will not materially decrease the functionality and security of the Subscription Services during a Term. To enable Stack Identity to setup and/or provide the Services, Customer agrees to provide Stack Identity with all reasonably necessary Provisioning Data, including the appropriate levels of permissions or accesses to the Customer’s relevant systems and resources and any other information and materials as set out in the Services Description.
    2. Trial Services. If the Customer is provided any Service for evaluation purposes, the evaluation period will commence on the date that the Customer is notified by Stack Identity that the Service has been provisioned and will continue for the time specified by Stack Identity, but not to exceed thirty (30) days. Evaluation Services are provided for evaluation purposes and not for production use. At any time prior to the commencement of the evaluation period or during the evaluation period, Stack Identity may, in its sole discretion, decline or discontinue provision of the Service and terminate the evaluation with immediate effect. Once the evaluation period has commenced, the Customer may terminate the evaluation and Stack Identity’s provision of the Service upon seventy-two (72) hours prior written notice to Stack Identity. After the evaluation period expires, the Customer may request to continue the Service being evaluated only upon purchase of the commercially available Service. During the evaluation period, no warranties shall apply to the Service and no service level agreements or remedies will be available for the Service. All other terms and conditions of the Agreement shall otherwise apply to the Customer’s evaluation of the Service.
    3. Professional Services. Stack Identity will provide the Customer with Professional Services as set forth in the applicable SOW. Each Party will designate in each SOW an individual who will be the primary point of contact between the Parties for all matters relating to the Professional Services to be performed thereunder. Customer will (a) cooperate with Stack Identity, (b) provide Stack Identity with accurate and complete information, (c) provide Stack Identity with such assistance and access as Stack Identity may reasonably request, and will fulfil its responsibilities as set forth in the Agreement and the applicable SOW. If applicable, while on the Customer’s premises for Professional Services, Stack Identity personnel shall comply with reasonable Customer rules and regulations regarding safety, conduct, and security made known to Stack Identity.
    4. Third-Party Software. The Subscription Services may include features that enable interoperability with certain Third-Party Software/s. To use such features, Customer must obtain access to such Third-Party Software from the respective provider. If the Customer chooses to utilize such features, Customer acknowledges that: (i) the Third-Party Software is governed by terms of use or license agreement directly between the Customer and the respective owner of the Third-Party Software and Stack Identity has no obligation or liability and makes no warranty or guarantee or representations in relation to such Third-Party Software; (ii) Customer may be required to grant Stack Identity access to its account with such Third-Party Software as a part of Provisioning Data; and (iii) Stack Identity may share and Third-Party Software may access, Customer Data as necessary for such interoperability.
  3. SUBSCRIPTION SERVICES USAGE.
    1. Use. Customer will only use each Service for its internal business use and for lawful business purposes only. Customer will not distribute, resell the Services or act a service provider passing the use or benefit of the Service to third parties, unless otherwise mutually agreed between the Parties. Customer may obtain Services for use by its Affiliates, consultants and outsourcers in which event such use of Services by such Affiliates, consultants and outsourcers is conditioned upon each Affiliate accepting all of the terms and conditions of the Agreement and Customer agrees that it will remain responsible for their acts or omissions.
    2. Changes in Committed Use Level. During the Initial Period or a Renewal Period, Customer cannot reduce the Committed Use Level. The same Committed Use Level will apply to the next Renewal Period, unless reduced or increased by notifying Stack Identity via [email protected].
    3. Restrictions. The Customer shall not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise or otherwise make the Subscription Services available to any third parties, (ii) introduce software or automated agents or scripts into the Subscription Services so as to produce multiple accounts, generate automated requests or queries, or to strip or mine data from the Subscription Services, (iii) copy, create a derivative work of reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code, methodology, analysis or modify the Subscription Services, unless and to the extent expressly permitted by the applicable law; (iv) create a competitive offering based on the Subscription Services, (v) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services, (vi) perform or disclose any benchmark or performance tests of the Subscription Services, other than solely for the Customer’s internal use.
    4. Customer Responsibilities. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services, and notify Stack Identity promptly of any such unauthorized access or use of which it becomes aware. Further, Customer acknowledges that Customer is solely responsible to obtain and maintain all necessary permissions, consents or approvals as may be necessary for (i) providing the Provisioning Data to Stack Identity; (ii) permitting Stack Identity and its subcontractors to access the systems and resources using such Provisioning Data for the purposes of providing the Services in accordance with the Agreement. For the avoidance of doubt, Stack Identity is not responsible for (i) determining, setting, or implementing any changes to the configurations, policies, rules or any other security measures in respect of its own systems and resources (including to its Customer Applications), (ii) all risks and liabilities arising due to Customer’s decisions based on the results of the Subscription Services.
  4. TERM; RENEWAL. This Section shall apply only where the Customer signs a Services Order or SOW directly with Stack Identity. If the Customer chooses to order via a reseller, the terms of Customer’s agreement with such reseller shall govern in respect of the subject-matter of this Section.
    1. Initial Period and Auto-Renewal. The Initial Period for a Subscription Service will begin on the date indicated in the Services Order. Unless otherwise mutually agreed in writing by the Parties, and subject to the provision “Renewal Opt Out” below, Services will automatically renew for Renewal Periods of twelve (12) months each (unless a shorter default Renewal Period is specified in the Services Order).
    2. Renewal Opt Out. Either Party may elect not to renew the Services, by providing written notification not less than 90 (ninety) days before the beginning of the next Renewal Period. Notwithstanding the process for other notices set forth under “General”, below, Customer’s non-renewal notification will be submitted via email to [email protected].
  5. TERMINATION.
    1. The Agreement, in whole or as to specific Services Order(s) or SOW, may be terminated at any time by either Party as follows: (i) upon written notice if the other Party breaches any material term of the Agreement, and such breach remains uncorrected for 30 days following written notice; or (ii) immediately, if the other Party becomes the subject of a voluntary or involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or similar action for the benefit of creditors as a consequence of debt, or if the other Party otherwise ceases or threatens to cease business.
    2. Upon termination of an individual Services Order, the Agreement as to all other Services Orders will continue in full force and effect. Upon termination of the Agreement in whole, all outstanding Services Orders will be terminated immediately. Termination of the Agreement will be without prejudice to any rights or liabilities accrued as of the date of termination. Stack Identity will be entitled to invoice and be paid for all Services provided up to the effective date of termination, and all invoices become immediately then due and payable. Any term of the Agreement, which is intended to survive expiration or termination will survive, including, without limitation, confidentiality, restrictions on use of intellectual property, indemnity, limitations on liability and disclaimers of warranties and damages, governing law, and Customer’s payment obligations accrued prior to termination.
  6. INVOICES; FEES; PAYMENT; TAXES. This Section shall apply only where the Customer signs a Services Order or SOW directly with Stack Identity. If the Customer chooses to order via a reseller, the terms of Customer’s agreement with such reseller shall govern in respect of the subject-matter of this Section.
    1. Invoices. Unless otherwise specified in a Services Order or SOW, Services fees will be calculated from the date the Service is made available to Customer. However, Stack Identity reserves the right to begin charging Service fees based on the Committed Use Level if, due to Customer’s act or omission (including a failure to provide Provisioning Information), Stack Identity is unable to make the Service available.
    2. Fees and Payment. Customer will pay Stack Identity the applicable Fees. Unless otherwise agreed in the Services Order or SOW, Fees are payable annually in advace on the basis of then-current Committed Use Level or Actual Use Level for that calendar month. Customer will pay Stack Identity invoiced amounts within 30 days of the date of receipt of the invoice (“Due Date”). If any sum payable to Stack Identity is not paid by the Due Date, Stack Identity reserves the right, without prejudice to any other remedy, to (i) charge interest on such overdue sum on a day-to-day basis from the due date until paid in full the lesser of one percent (1%) per month or the maximum rate permitted by applicable law; and/or (ii) suspend the provision of the Services upon five (5) days prior notice, until paid in full. All Fees paid or payable for Services are non-cancellable and non-refundable. Stack Identity may update its pricing for a Service by publishing, quoting or invoicing Customer at the updated pricing at least thirty (30) days before such changes take effect; provided, however this sentence shall not apply to Fees agreed in a Services Order to be fixed for an Initial Period or applicable Renewal Period(s).
    3. Taxes. Customer is responsible for all taxes, customs duties, import fees or other similar charges, and all other mandatory payments imposed by government entities with respect to the Services or other items provided under the Agreement, excluding tax imposed on Stack Identity’s net income and withholding taxes (subject to the condition of providing withholding tax payment receipts, as set forth below). Stack Identity will bill applicable taxes as a separate item on Customer’s invoice and will not include them in the Fees. If a transaction is exempt from tax, Customer will provide Stack Identity with a valid exemption certificate or other evidence of such exemption in a form acceptable to Stack Identity. If Customer is required by law to withhold any tax from the payment, Customer will provide to Stack Identity original or certified copies of all tax payment receipts or other evidence of payment of taxes by Customer with respect to transactions under the Agreement. If Customer fails to provide Stack Identity with such tax payment receipts, if applicable, then Customer will reimburse Stack Identity for any fines, penalties, taxes and other governmental agency charges resulting from such failure.
  7. WARRANTY. Stack Identity will provide the Subscriptions Services with reasonable care and skill, and substantially in accordance with the Services Description (found at www.stackidentity.com), and will implement appropriate technical, administrative and physical security measures that are designed to secure the Subscription Services, Customer Data and the Subscription Service’s access to Customer Applications against accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure or access, (more particularly described here – http://44.218.170.169/docs/security-policy/) but in any case not less than industry standard security measures. The warranty for Subscription Services ends when the Term ends. Stack Identity will provide the Professional Services in a competent and workmanlike manner consistent with generally accepted industry standards. STACK IDENTITY DOES NOT WARRANT UNITERRUPTED OR ERROR-FREE OPERATION OF THE SERVICES OR THAT STACK IDENTITY WILL IDENTIFY ALL THREATS, VULNERABILITIES, DEFICIENCIES AND RISKS ASSOCIATED WITH CUSTOMER’S IDENTITIES OR ACCESSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW CUSTOMER AGREES THAT THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED CONCERNING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. STACK IDENTITY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS. IN ADDITION, STACK IDENTITY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY NOR ASSUMES ANY OBLIGATIONS REGARDING, ARISING FROM OR RELATED TO THE LEGALITY OF MONITORING OR INSPECTION OF ANY CUSTOMER IDENTITIES IN ANY PARTICULAR JURISDICTION, AND CUSTOMER SHALL BE SOLELY RESPONSIBLE, AND STACK IDENTITY SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED OR ACTUAL USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS.
  8. INTELLECTUAL PROPERTY.
    1. Subscription Services. All rights (including intellectual property rights) in the Subscription Services are and will remain Stack Identity’s property or that of its licensors and Customer obtains no rights in respect of the Subscription Services, except that Customer may use the Subscription Services in accordance with and subject to the restrictions and responsibilities set out in section 3 above.
    2. Professional Services. Excluding any property that constitutes Pre-Existing Materials, any Deliverables shall be the sole property of Customer upon Customer’s payment in full of all associated Fees. To the extent that Stack Identity incorporates any Pre-Existing Materials into any Deliverables, then Stack Identity hereby grants Customer a limited, royalty-free, non-exclusive, non-transferable (subject to Section 12), without right to sublicense, license to use such Pre-Existing Materials delivered to Customer solely as necessary for and in conjunction with Customer’s use of the Deliverables.
    3. Customer Data and Customer Applications. As between the Parties, Customer is and will remain the sole and exclusive owner of all right, title and interest to all Customer Data and Customer Applications, including any intellectual property rights therein. Customer hereby grants Stack Identity and its subcontractors all necessary rights to use, process, store, display and transmit Customer Data and Customer Applications solely as necessary for Stack Identity to provide the Services in accordance with the Agreement. Subject to the limited licenses granted herein, Stack Identity acquires no right, title or interest from Customer or Customer licensors hereunder in or to Customer Data and Customer Applications, including any intellectual property rights therein.
    4. Feedback. To the extent, Customer or its users provide any suggestions or comments related to the Services, Stack Identity shall have the right to retain and use any such suggestions or comments in current or future products/ services or subscriptions, without requiring Customer’s approval or payment of compensation.
  9. INDEMNITY.
    1. Indemnification by Stack Identity. Stack Identity will defend, indemnify and hold Customer harmless from any claim asserting that the Services infringe any intellectual property right of a third party, and will pay any and all damages awarded by a court and actually paid by Customer, or agreed to in settlement by Stack Identity and attributable to such claim. Stack Identity’s obligations under this provision are subject to Customer’s doing the following: notifying Stack Identity of the claim in writing, as soon as Customer learns of it; providing Stack Identity all reasonable assistance and information to enable Stack Identity to perform its duties under this Section; allowing Stack Identity sole control of the defense and all related settlement negotiations; and not having compromised or settled such claim. Notwithstanding the foregoing, Customer may participate at Customer’s expense in the defense of any such claim with its own counsel, provided Stack Identity retains sole control of the claim.
      If the Services are found to infringe, or if Stack Identity determines in its sole opinion that the Services are likely to be found to infringe, then Stack Identity will either (i) obtain for Customer the right to continue to use the Service; or (ii) modify the Service so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality; or, if Stack Identity determines in its sole opinion that “(i)” and/or “(ii)” are not commercially reasonable, Stack Identity may (iii) terminate Customer’s rights and Stack Identity’s obligations under the Agreement with respect to such Services, and in such case shall refund to Customer the fees paid for the relevant Services. Notwithstanding the above, Stack Identity will not be liable for any infringement claim to the extent that it is based upon: (1) modification of the Services other than by Stack Identity; (2) combination, use, or operation of the Services with products or services not specifically authorized by Stack Identity to be combined with the Services; (3) use of the Services other than in accordance with the Agreement; (4) Stack Identity’s compliance with Customer’s explicit or written designs, specifications or instruction; (5) Customer Data, Provisioning Data or Third-Party Software or (6) Customer’s continued use of infringing Services after Stack Identity, for no additional charge, supplies or offers to supply modified or replacement non-infringing Services.THIS SECTION “INDEMNITY” STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND STACK IDENTITY’S SOLE AND EXCLUSIVE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
    2. Indemnification by Customer. Customer agrees, to defend, indemnify against and hold Stack Identity harmless from and against any judgments, settlements, costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from a third-party claim, demand, suit or proceeding made or brought against Stack Identity alleging that Stack Identity’s access to or use of Customer Data, Provisioning Data and/or Customer Applications is in violation of the third party’s rights or applicable law, provided that Stack Identity (a) promptly gives Customer written notice of the claim, (b) gives Customer sole control of the defense and settlement of the claim, and (c) provides to Customer all reasonable assistance, at Customer’s expense.
  10. CONFIDENTIALITY. “Confidential Information” means, for purposes of the Agreement, the non-public information provided by a Party (“Discloser”) to the other Party (“Recipient”) related to the business opportunities between the Parties, provided that such information is: (a) identified or marked as confidential at the time of disclosure by the Discloser, or (b) of such nature that, under the circumstances surrounding its disclosure, a reasonable person would consider it as confidential or proprietary. Without limiting the generality of the foregoing, Confidential Information shall include service architecture, research and development plans, non-public financial data and roadmaps, benchmark or similar test results, security information, security audit reports, business and marketing plans whether marked as confidential or not. The Recipient may use the Confidential Information that it receives from the Discloser solely for the purpose of performing activities contemplated under the Agreement. For a period of five (5) years following the applicable date of disclosure of any Confidential Information, the Recipient will not disclose the Confidential Information to any third party, except as otherwise set out in this section. The Recipient will protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its and its Affiliates’ employees, contractors, and agents (“Permitted Recipients”) with a need to know in order to perform its obligations or exercise its rights under the Agreement, provided that the Recipient binds each Permitted Recipient to legally binding obligations which are at least as protective of the Discloser’s rights as the Agreement. This Section imposes no obligation upon the Recipient with respect to Confidential Information which: (i) is or becomes public knowledge other than by breach of the Agreement; (ii) was in the Recipient’s possession before receipt from the Discloser and was not subject to a duty of confidentiality; (iii) is rightfully received by the Recipient without any duty of confidentiality; (iv) is disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (v) is independently developed by the Recipient without use of the Confidential Information. The Recipient may disclose the Discloser’s Confidential Information as required by law or court order provided: (x) the Recipient promptly notifies the Discloser in writing of the requirement for disclosure, if legally permissible; and (y) discloses only as much of the Confidential Information as is required. Discloser may request the return of Confidential Information or upon termination or completion of the Agreement or any Subscription, Recipient will either return (if technically feasible to do so) or destroy the Confidential Information and upon request of Discloser, will certify such destruction. Notwithstanding the foregoing and provided that such information is protected in accordance with the terms of the Agreement, the Recipient may continue to maintain copies of Confidential Information: (i) that is included in its data backup, which will be destroyed in accordance with the Recipient’s data retention policies; or (ii) as required to comply with applicable law, which will be destroyed when such obligation is met. Each Party will retain all right, title and interest to such Party’s Confidential Information. The Parties acknowledge that a violation by the Recipient of its obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, the Discloser will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions.
  11. LIMITATION OF LIABILITY. EXCEPT FOR (I) EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 9 (MUTUAL INDEMNIFICATION), (II) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING TRADE SECRETS, (III) DAMAGES FOR BODILY INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; OR (IV) ANY OTHER LIABILITY THAT MAY NOT BE LIMITED UNDER APPLICABLE LAW (THE “EXCLUDED MATTERS”), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY RELATING TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THOSE SERVICES GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE SERVICES ORDER AND/OR SOW IN THE 12 MONTHS PRECEDING THE APPLICABLE INCIDENT. EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  12. GENERAL.
    1. “Compliance with Laws.” Each party shall comply with laws applicable to the performance of activities arising from the Agreement. Each party shall comply with U.S. Export Administration Regulations, and any other export laws, restrictions and regulations to ensure that the Services and any technical data related thereto is not exported or re-exported directly or indirectly in violation of or used for any purposes prohibited by such laws and regulations. Each Party agrees to comply with all applicable anti-bribery laws, which may include, without limitation, the U.S. Foreign Corrupt Practices Act or the U.S. Bribery Act.
    2. “Independent Contractors.” The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
    3. “Publicity.” Customer agrees that Stack Identity may (i) identify Customer as a Stack Identity customer in advertising, media relations, trade shows, investor presentations, the website, and other similar promotional activities, using Customer’s name and trademarks in accordance with Customer’s trademark guidelines; (ii) use Customer’s name for marketing purposes with the prior written consent of the Customer, and subject to Company’s compliance with Customer’s trademark use guidelines.
    4. “Subcontracting.” Stack Identity has the right to subcontract the performance of the Services to third parties and its Affiliates, provided that Stack Identity remains responsible for the contractual obligations according to the Agreement and any Services Order.
    5. “Notices.” All notices of breach, termination or the like will be in writing and addressed to the receiving Party’s current business contact, if known, with a cc: to the Legal Department of the receiving Party and sent to the Party’s address as listed in the Agreement, or as updated by either Party in writing. Notices shall be effective upon receipt and shall be deemed received as follows: (i) if personally delivered by courier, when delivered, or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.
    6. “Assignment.” Neither Party may assign its rights and obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign the Agreement in its entirety (including all Services Orders and SOWs), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
    7. “Force Majeure.” Each Party will be excused from performance, other than payment obligations, for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond such Party’s reasonable control including but not limited to war, strike, riot, crime, acts of God, or shortages of resources.
    8. “Governing Law.” The Agreement shall be governed by and construed by the following laws, without giving effect to conflict of law principles: the laws of the State of California, for Customers located in the Americas; the laws of Singapore, for Customers located in Asia Pacific; the laws of England and Wales, for Customers located in Europe, Middle East or Africa. Such application of law excludes any provisions of the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law.
    9. “Severability.” If any provision of the Agreement is found partly or wholly illegal or unenforceable, such provision will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions will remain in full force and effect.
    10. “Waiver and Modifications.” A waiver of any breach or default under the Agreement will not constitute a waiver of any other right for subsequent breach or default. No person other than a Party to the Agreement will be entitled to enforce any term of it except as expressly provided herein. Any subsequent modifications to these terms and conditions will be made in writing and duly signed by authorized representatives of both Parties or they will be void and of no effect.
    11. “Entire Agreement.” Each Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication whether oral or written between the Parties regarding such subject matter. The Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if signed and returned.
    12. “Precedence.” The terms of the Services Order, the terms of the main body of the Agreement, and the Services Description shall govern, in that order of precedence, in the event of any conflict by or among such documents.
    13. “Counterparts and Signatures.” The signatories hereto represent that they are duly authorized to sign the Agreement on behalf of their respective companies.