These terms constitute the entire agreement between Stack Exchange, Inc., (“Stack”) and you, all users, and your company, team, organization, group, and/or entity (collectively “Customer”) with respect to use of the Service (“Agreement”). Stack and Customer are each a “Party” (collectively “Parties”) to this Agreement. Stack may, in its sole discretion, modify this Agreement at any time by posting revised terms online. Use of the Services (defined below) constitutes Customer’s acceptance of such modified Agreement.
Capitalized terms will have the meaning as defined in this Section, unless otherwise specifically defined in this Agreement.
“Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, direct or indirect, or the power to direct or cause the direction of the management and policies of an entity, through ownership of voting securities, by contract, or otherwise.
“Content” means any data or information, including Confidential Information, that is stored, provided, imported, displayed, distributed or transmitted by Customer through the use of the Services. Content shall not include any Feedback or any non-identifiable usage data.
“Data Protection Laws” means all applicable laws, regulations, or other legal requirements relating to privacy, data security, and protection of Personal Data, and the processing of any Personal Data.
“Documentation” means technical specifications and usage documents describing the operation of the Services and available on the Stack Customer Portal.
“Feedback” means any suggestion, idea, enhancement request or recommendation related to any Service.
“Intellectual Property” means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in designs, rights in computer software, database rights, trade secrets, and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Personal Data” means any personal information relating to, directly or indirectly, an identified or identifiable natural person of Customer that is collected, accessed, used, disclosed, or otherwise processed by Stack.
“Seat(s)” means a User account for the licensed Services.
“Service(s)” means software products and services as Stack may modify them from time to time. For clarity, the Services are distinct from Stack’s public websites (e.g., Stackoverflow.com).
“Stack Customer Portal” means the customer portal provided to customers of the Services as set forth at the URL as designated by Stack.
“Subscription Term” means the period of time (monthly or annual) as selected by Customer during the online procurement process.
“User(s)” means employees, contractors, and agents of Customer or Customer Affiliates, acting on behalf of Customer for whom Customer activates its Seats purchased under this Agreement. Each User accessing the Services will utilize a Seat and be identified by a unique username and password.
2. License Terms; Restrictions; Services
2.1. License Grant
Subject to the terms and conditions set forth in this Agreement, Stack hereby grants to Customer a limited, non-exclusive, worldwide, non-transferable, non-sublicensable, and revocable license to access and use the Services, including its application programming interface, and Documentation for the Subscription Term solely for its internal business purposes. Except for the license provided herein, Stack retains all Intellectual Property rights in and to the Services.
Customer grants Stack a worldwide, royalty-free, non-exclusive license to host and use any Content for the purpose of providing the Services during the Subscription Term. Customer further irrevocably transfers to Stack all right, title and interest in and to any Feedback provided by Customer. Except as provided herein, Customer retains all Intellectual Property rights in and to the Content.
2.2. Use Restrictions
Except as provided herein, Customer shall not: (a) license, sublicense, sell, resell, distribute, rent or lease, transfer, assign, time share or otherwise commercially exploit or make available the Services to any third party other than Users; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or algorithms of the Services; (c) copy, modify or create derivative works based on the Services or conduct benchmark, load, storage or other similar testing; (d) permit sharing of Seats by more than one User per Seat; (e) probe, scan, or test the vulnerability of any system or network, or breach or circumvent any security or authentication measure associated with the Services; (f) access or search the Services by any means other than as permitted hereunder; (g) use the Services in violation of any applicable laws or third party rights including, but not limited to, storing or sending infringing, libelous, obscene, threatening or otherwise unlawful or tortious material, including materials that are harmful to children or that violate any privacy rights, or storing or sending malicious code; (h) use the Services to commercialize any product or service that is similar to or competitive with the Services; or (i) delete from the Services any Documentation, legal notices, disclaimers or proprietary notices, such as copyright or trademark notices, or modify any logos that Customer does not own or have express permission in writing to modify.
2.3. Usage Information
Customer agrees that Stack may create and derive anonymized and/or aggregated data regarding Customer’s use of the Services under this Agreement to provide support, to improve Stack’s products and services, and for the provision, use, and performance of the Services.
2.4. Entity Representatives, Admin, and Users
Customer is responsible for ensuring that the individual creating the Customer account (“Entity Representative”) has reviewed the terms of this Agreement, including the obligations and use requirements, and is authorized by the Customer to enter into this Agreement. Entity Representatives and/or an administrator designated by Customer through the Services (“Admin”) must administer the account on behalf of Customer, including designating and deprovisioning Users, controlling Content submitted to the Services, managing certain account permissions and settings, and making any purchasing decisions on behalf of the Customer. Customer further acknowledges and agrees that Entity Representatives, an Admin, and/or Users will have the right to access the Services, and control their use, disclosure, sharing and processing of Content posted in the Services.
Upon purchase, Customer shall pay all then current and applicable fees, choosing either monthly or annual payments. Upon the expiration of the then applicable Subscription Term, fees for any Renewal Term (as defined below) shall be billed to the credit card provided at the time of original purchase (unless updated, and then the fees will be charged to the updated credit card) based on the then current number of Seats, plus any Seats added during the prior Subscription Term (which will be billed on a prorated basis), at the then current pricing. Except for any taxes due in connection with Stack’s income derived from the Agreement, Customer will bear responsibility for any and all taxes due in connection herewith.
4. Term and Termination
This Agreement shall be effective when Customer accepts this Agreement during the online procurement process and shall continue until expiration or termination.
This Agreement and the relevant Subscription Term shall automatically renew for additional Subscription Terms of the same length as the previous Subscription Term (“Renewal Term”) unless Customer notifies Stack of its intent not to renew at least thirty (30) days prior to the end of the then current Subscription Term.
4.3. Termination for Breach
Either Party may terminate this Agreement in the event such other Party materially breaches any of its obligations set forth in the Agreement and such breach is not cured within thirty (30) days after delivery of written notice from the Party claiming breach.
4.4. Post Termination
Upon termination of this Agreement, Stack shall have no further obligations to Customer, including no obligation to return Customer’s Content, data or other information that was uploaded onto the Services (unless legally mandated under relevant laws and after Customer’s written request). Stack may maintain any Confidential Information and Personal Data located in its electronic backup files made pursuant to its standard backup and retention policies, which shall remain subject to Sections 5 and 6 of this Agreement, respectively.
Each Party (“Discloser”) may disclose to the other (“Recipient”) in writing, orally, visually or in electronic or other format, certain confidential and proprietary business, technical or financial information in connection with the Services provided under this Agreement, including, but not limited to, specifications, pricing, methods and processes and information marked “proprietary” or “confidential” or which by its nature reasonably should be understood to be confidential (“Confidential Information”).
Confidential Information shall not include information that: (a) is or becomes generally publicly available through no fault of the Recipient; (b) was rightfully in the Recipient’s possession without restriction prior to disclosure by the Discloser; (c) is rightfully received without restriction from a third party that did not violate any obligation of confidentiality; or (d) was independently developed by the Recipient without reference to the Confidential Information.
5.3. Use of Confidential Information
The Recipient agrees not to: (i) use the Confidential Information for any purpose except as expressly provided in this Agreement; (ii) disclose the Confidential Information to any person other than those with a need to know for purposes of performing the obligations under this Agreement; or (iii) provide access to the Confidential Information to any third party unless authorized in this Agreement or with the Discloser’s written permission. Notwithstanding the foregoing, each Party shall have the right to disclose the other Party’s Confidential Information to such of its directors, officers, employees, consultants, accountants, financial advisors, outside counsel, collaborators and other representatives with a bona fide need to know the Confidential Information (each a “Representative”) for any purposes related to this Agreement, provided that prior to any such disclosure to a Representative, the Recipient has a written confidentiality agreement requiring the Representative to protect the Confidential Information under terms and conditions no less restrictive than those contained herein. In addition, each Party shall be responsible for any breach of this Agreement by its Representatives.
5.4. Standard of Care
Each Party shall protect the other Party’s Confidential Information with the same degree of care it uses with its own information of like kind, but in no event less than reasonable care.
5.5. Forced Disclosure
Notwithstanding anything to the contrary herein, Recipient and its Representatives may disclose Confidential Information as required by court order, duly authorized subpoena, governmental authority, or applicable law, as long as Recipient: (a) to the extent legally permissible, provides prompt notice of such requirement to Discloser so that Discloser may attempt to seek a protective order for such Confidential Information; and (b) discloses only such Confidential Information as Recipient is legally required to disclose.
5.6. Injunctive Relief
Each Party agrees that any actual or threatened disclosure or misappropriation of Confidential Information would constitute immediate, irreparable harm to the other Party for which monetary damages may be an inadequate remedy. Therefore, in addition to any other rights and remedies that may be available to the parties at law or in equity, each Party may seek injunctive relief for any such actual or threatened disclosure without the posting of a bond.
6. Data Protection
Each Party shall comply with all Data Protection Laws through the course of using and providing the Services, as applicable, and the exercise and performance of its respective rights and obligations under this Agreement. If required by Data Protection Laws, the Parties shall enter into a subsequent or accompanying agreement that states the rights and obligations of each Party concerning the protection and processing of Personal Data prior to the processing thereof.
ALL PRODUCTS, INFORMATION, SERVICES AND DOCUMENTATION ARE PROVIDED ON AN AS-IS BASIS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STACK EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE INFORMATION, SERVICES AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DATA LOSS, TITLE OR NONINFRINGEMENT. STACK MAKES NO WARRANTY THAT THE INFORMATION, SERVICES OR DOCUMENTATION WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE. IN THE EVENT THAT APPLICABLE LAW LIMITS THE EXCLUSION OF IMPLIED WARRANTIES ABOVE, THE MAXIMUM AMOUNT OF EXCLUSIONS ALLOWED UNDER APPLICABLE LAW SHALL BE APPLIED.
Customer represents and warrants on behalf of itself, its Affiliates and its Users that it: (a) shall use the Services solely in accordance with the terms of this Agreement, any accompanying Documentation, and all applicable laws, rules and regulations; (b) has all necessary rights to use the Content and to permit Stack to use the Content in connection with the Services without infringing any third party intellectual property right or violating any fiduciary duty, duty of confidentiality, contractual obligation or applicable law; (c) will not use, or permit the use of, the Services for illegal, fraudulent or unethical purposes; and (d) will not interfere with or impede the ability of others to use the Services. Customer shall be liable for any and all use of and access to the Services by its Users, including its Affiliates. Customer further represents and warrants that: (a) it has the right to enter into this Agreement; (b) it has reviewed this Agreement; (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it in accordance with its terms; and (d) it is not subject to any agreement with any third party that will or may be violated by Customer’s performance under this Agreement.
Each Party represents and warrants that: (a) it has the right to enter into the Agreement; (b) the signatory authorized to execute the Agreement is authorized to do so on behalf of such Party; (c) the Agreement constitutes a legal, valid, and binding obligation enforceable against such Party in accordance with its terms; and (d) such Party is not subject to any agreement with any third party that will or may be violated by such Party’s performance of the Agreement.
Customer shall defend and indemnify Stack and its affiliates, subsidiaries, employees, officers, directors and owners for any third-party claims arising as a result of Customer’s use of the Services.
Stack will defend and indemnify Customer and its affiliates, subsidiaries, employees, officers, directors and owners for any third-party claims against Customer alleging (a) the Services as delivered to the Customer infringe the intellectual property rights of a third party; or (b) any gross negligence or willful misconduct by Stack.
Notwithstanding the foregoing, Stack shall have no liability or obligation under this Section with respect to any claim of infringement based upon: (a) modifications to any Service not performed by or on behalf of Stack; or (b) the combination, operation, or use of any of the Services with any third-party product or service where such combination, operation or use causes the claimed infringement.
If any Service, or portion thereof is subject to a suit or other legal proceeding claiming that the Service or such portion infringes a third party's intellectual property right, or in Stack's opinion is likely to become the subject of such a claim, Stack shall, at its option, have the right to: (a) procure for Customer the right to continue using the Services; (b) modify or substitute the Services so that it becomes non-infringing; (c) or if neither (a) nor (b) is possible, Customer may terminate the relevant Order Form in whole or in part, and Stack will promptly refund to Customer all fees paid for the affected Services, pro-rated to the date of termination. THIS SECTION 8.2 STATES THE ENTIRE LIABILITY OF STACK AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET OR ANY OTHER INTELLECTUAL PROPERTY RIGHT BY OR IN CONNECTION WITH ANY SERVICE.
8.3. Indemnification Procedures
The indemnified Party agrees to provide the other Party with prompt written notice of any claim, control of the defense and settlement thereof and all reasonable assistance therewith at the indemnifying Party’s expense. The indemnified Party may participate in such investigation, trial, defense and settlement of such claim and any appeal arising therefrom, through its attorneys or otherwise, at its own cost and expense. Notwithstanding the foregoing, any settlement that does not contain a full release of the indemnified Party or admits any liability of the indemnified Party requires the indemnified Party’s written consent.
9. Limitation of Liability
9.1. General Limit
UNDER NO CIRCUMSTANCES WILL STACK BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING FROM THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS, PROFITS OR GOODWILL. THE FOREGOING SHALL APPLY REGARDLESS OF THE LEGAL THEORIES, EVEN IF STACK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THESE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
9.2. Aggregate Limit
Stack’s total aggregate liability to Customer for all claims arising under or relating to this Agreement will not exceed the amount paid or payable to Stack by Customer in the twelve-month period immediately preceding the date of the claim.
Customer agrees to comply with all applicable U.S. export control laws and regulations applicable to the Services.
10.2. Force Majeure
Neither Party will be liable for any delay or failure to perform under this Agreement (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, pandemic or other cause beyond such Party’s reasonable control.
10.3. Entire Agreement
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous proposals, whether written or oral. No pre-printed or other terms that appear on Customer’s purchase order currently or hereinafter provided shall be of any force or effect.
10.4. Independent Parties
The Parties are independent contractors, and no employment, agency, partnership or joint venture is created hereunder. Stack is an independent contractor of Customer. Neither Party is, nor shall either Party represent itself as, an employee, agent, representative, or joint venture partner or corporate entity partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of the other Party, to incur any obligation or liability, or otherwise bind the other Party. This Agreement is not intended to create an association, agency, joint venture, or partnership between the Parties, or to impose any partnership liability upon either Party, and each Party hereby disclaims any such liability. This Agreement is nonexclusive in nature and is not to be construed as establishing an exclusive arrangement between the Parties.
Any notice or other communication made under this Agreement shall be provided in writing and shall be transmitted electronically by email, for Stack at firstname.lastname@example.org, and for Customer to Customer’s designated Admin. All notices shall be deemed given upon the earlier of evidence of receipt or two (2) business days after transmission.
10.6. Governing Law
This Agreement and the relationship between Customer and Stack are governed by the laws of the state of New York without regard to its conflict of law provisions. Each Party hereby consents to personal jurisdiction in any action brought in federal or state court in New York County, New York. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
Customer may not assign, sublicense or transfer its rights or obligations under this Agreement without Stack’s prior written consent. Stack may freely assign, sublicense or transfer its rights or obligations under this Agreement without notice to Customer or Customer’s consent.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous proposals, whether written or oral. The section headings contained in this Agreement are for convenience only and shall not be considered in its interpretation.
10.9. Waiver; Severability
The failure of either Party to enforce its right under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is held to be invalid, illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof. To the extent permitted by applicable law, the Parties waive any provision of law which renders any provision of this Agreement invalid or unenforceable in any respect. The Parties shall endeavor in good-faith negotiations to replace any provision which is declared invalid or unenforceable with a valid and enforceable provision, the economic effect of which comes as close as possible to that of the invalid or unenforceable provision which it replaces.
Sections 3, 4.4, 5, 6, 8, 9 and 10 shall survive termination of this Agreement.
Customer agrees that Stack may identify Customer as a user of the Services on Stack’s website or any third-party website where Stack or its designated agents may promote the Services, in its business deals, press releases, marketing materials, advertising, newsletters, mailings, tradeshows, or other promotional materials. Customer hereby grants Stack and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Customer's name, trademarks, service marks, designs, logos, and symbols in connection with such purpose and in accordance with Customer’s written guidelines provided to Stack. Upon Customer’s successful implementation of the Services, Customer agrees to participate in a Stack customer case study, provide customer references, and provide quotes for marketing purposes. All such participation and content will be pre-approved by Customer, which consent shall not be unreasonably withheld.