Terms and Conditions
Last Updated: June 25, 2024
TERMS AND CONDITIONS
BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS AND CONDITIONS (THE “ORDER FORM”, AND TOGETHER WITH THESE TERMS AND CONDITIONS, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE STUUT PLATFORM (AS DEFINED BELOW).
This Agreement, by and between Stuut, Inc. (“Stuut”) and Customer, is effective as of the effective date set forth in the Order Form (the “Effective Date”), and governs Customer’s use of Stuut’s proprietary software-as-a-service platform which to facilitate and simplify debt collection services (the “Stuut Platform”).
Stuut reserves the right to change or modify portions of these Terms and Conditions at any time. If Stuut does so, it will post the changes on this page and will indicate at the top of this page the date these Terms and Conditions was last revised. Stuut will also notify Customer, either through an email notification or through other reasonable means. Any such changes will become effective upon Customer’s acceptance of the same (which acceptance may be granted by clicking a box indicating acceptance of the new Terms and Conditions or by delivery of an email notification of such changes to Customer’s email address set forth in the Order Form or otherwise associated with Customer’s account without an objection to such changes issued by Customer to Stuut in writing within ten (10) business days of such delivery). Each of Stuut and Customer may be referred to herein individually as a “Party” or collectively as “Parties”. Capitalized terms used in these Terms and Conditions that are not defined herein have the meanings given in the Order Form.
1. ACCESS TO THE STUUT PLATFORM.
1.1. Access Grant. Stuut will use commercially reasonable efforts to make the Stuut Platform available to Customer. Subject to the terms and conditions of this Agreement, Stuut hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Stuut Platform during the Term (as defined below), solely for Customer’s internal business purposes in connection with managing collectible accounts.
1.2. Restrictions and Responsibilities. Customer will not provide access to the Stuut Platform except to its employees, contractors and consultants who assist in managing and/or servicing Customer’s properties (“Authorized Users”). Customer will be liable for the acts or omissions of Authorized Users in violation of this Agreement as if they were “Customer” hereunder. Customer will not, and will not permit any Authorized User to, use the Stuut Platform for any purpose other than the purposes expressly set forth herein. Customer may not, nor permit any Authorized User to, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Stuut Platform; (b) modify, translate, or create derivative works based on the Stuut Platform; (c) use the Stuut Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than an Authorized User); (d) remove any proprietary notices or labels or (e) use the Stuut Platform to develop or improve a product or service that is competitive to the Stuut Platform. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Stuut Platform, including modems, hardware, server, software, operating system, networking, web servers and the like. Customer will also be responsible for maintaining the confidentiality of Customer’s and its Authorized Users’ usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords. Customer will not, and will ensure that its Authorized Users do not, disclose such usernames and passwords to any third parties (other than Authorized Users). Customer will inform Stuut immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Stuut Platform. Without limiting any other rights or remedies set forth herein or available pursuant to law, Stuut may immediately suspend Customer’s or any Authorized User’s access to the Stuut Platform if Customer is in breach of any term or condition of this Agreement.
1.3. License to Customer Data. Customer hereby grants to Stuut a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors, consultants and service providers of Stuut), non-transferable (subject to Section 10.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data and information (a) uploaded, input or otherwise made available by or on behalf of Customer to or through the Stuut Platform, including through the Third Party Services (as defined below) and (b) the Outputs (as defined below) (the “Customer Data”) to (i) provide the Stuut Platform and otherwise perform Stuut’s obligations under this Agreement, (ii) improve and develop products and services, including by training and developing models and/or algorithms, and (iii) create aggregated and/or anonymized data (“Aggregated Data”). For the avoidance of doubt, Aggregated Data is not Customer Data.
1.4. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Stuut with respect to the Stuut Platform or Evaluation Services (as defined below). Stuut will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to Stuut a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback. Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).
1.5. Evaluation Services. From time to time, Customer may be invited to try certain services at no charge for a free pilot period or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like. In the event Customer’s initial use of the Stuut Platform will be pursuant to a free pilot period (the “Pilot Period”), the duration of the Pilot Period and the Customer properties that will be included in connection with the use of the Stuut Platform during the Pilot Period will be included in the Order Form (provided, that, if the Parties have entered into a separate agreement for a pilot period, the terms of such agreement shall govern such pilot period and this Agreement will govern the use of the Stuut Platform and any Evaluation Services made available thereafter). For the avoidance of doubt, the provision of the Stuut Platform by Stuut during the Pilot Period (if any) is deemed “Evaluation Services” hereunder. Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms. Stuut may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Stuut will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
1.6. Third Party Services. The Stuut Platform may enable access to or integration with certain third party services, products, solutions, software, application programming interfaces and/or other technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”). The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services. Some Third Party Services may provide Stuut with access to certain information that Customer has provided to such Third Party Services. Any data, information or other materials related to Customer collected via or received by Stuut from any Third Party Service will be deemed Customer Data. Stuut has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services. Stuut will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services. Any dealings Customer has with third parties while using the Stuut Platform are between Customer and the third party. Stuut is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.
1.7 Service Levels; Support. Stuut will use reasonable efforts consistent with prevailing industry standards to provide the Stuut Platform in a manner that minimizes errors and interruptions in accessing the Stuut Platform. The Stuut Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Stuut or by third-party providers, or because of other causes beyond Stuut’s reasonable control, but Stuut will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Stuut’s control.
1.8 Authorization to Collect Receivables. Customer agrees that use of the Stuut Platform includes Stuut collecting outstanding receivables on Customer’s behalf and Customer agrees to provide all information reasonably requested by Stuut to support these collection activities. By using the Stuut Platform, Customer expressly authorize Stuut to pursue, collect and possess receivables held by third parties, on Customer’s behalf as Customer’s agent. For purposes of this Agreement, you grant Stuut a limited power of attorney, and appoint Stuut as your attorney-in-fact and agent, to collect and possess such receivables with the full power and authority to do and perform each thing necessary in connection with such activities.
2. OWNERSHIP; RESERVATION OF RIGHTS. As between the Parties, Stuut retains all right, title and interest in and to the Stuut Platform and all associated intellectual property rights. Stuut grants no, and reserves any and all, rights with respect to the Stuut Platform other than the rights expressly granted to Customer under this Agreement. As between the Parties, Customer retains all right, title and interest in and to the Customer Data. Customer grants no, and reserves any and all, rights with respect to the Customer Data, other than the rights expressly granted to Customer under this Agreement.
3. FEES; PAYMENT TERMS.
3.1 Fees. Customer will pay to Stuut the fees set forth in the Order Form in accordance with the payment terms set forth therein and herein. Stuut may increase prices for any Renewal Term (as defined below) by providing Customer notice of the price increase at least forty-five (45) days’ prior to the end of the then-current term.
3.2 Payment Terms. Payment obligations are non-cancelable and all fees paid are non-refundable. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. If the Order Form requires that Stuut invoice Customer for any fees, Customer will pay all such invoiced amounts within thirty (30) days of receipt of the applicable invoice.
3.3 Net of Taxes. All amounts payable by Customer to Stuut hereunder are exclusive of any sales, use and other taxes or duties, however designated, including withholding taxes, excise, sales, use, value-added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Stuut. Customer will not withhold any Taxes from any amounts due Stuut.
4. TERM; TERMINATION.
4.1 Term; Termination. This Agreement will commence on the Effective Date and continue for the Pilot Period (if any) and the initial term set forth in the Order Form (the “Initial Term”), unless otherwise earlier terminated in accordance with this Agreement. Thereafter, this Agreement will automatically renew for renewal terms of equal duration (each, a “Renewal Term” and, together with the Pilot Period (if any) and the Initial Term, the “Term”), unless either Party provides written notice of termination during the Pilot Period (as set forth below) or written notice of non-renewal during the Initial Term or any Renewal Term to the other Party at least thirty (30) days’ prior to the end of the then-current term. Either Party may terminate this Agreement for any or no reason during the Pilot Period, upon written notice to the other Party. At any time during the Term, either Party may terminate this Agreement immediately by providing a written notice to the other Party if that other Party has breached any of its material obligations and has not fully cured the breach within thirty (30) days after it has been given an initial written notice specifying the breach.
4.2 Effect of Termination. In the event that this Agreement expires or is terminated for any reason, (a) all rights granted to Customer with respect to the Stuut Platform will immediately terminate and (b) Customer will (i) cease use of the Stuut Platform, and (ii) pay to Stuut all amounts due and owing under this Agreement. In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.
4.3 Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (Restrictions and Responsibilities), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.3 (Disclaimers), 6.4 (Use of Artificial Intelligence), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.
5. CONFIDENTIALITY.
5.1 Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.
5.2 Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
5.3 Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees, contractors, consultants and service providers who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees, consultants, contractors and service providers are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
5.4 Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
6.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
6.2 Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data to Stuut hereunder, and Customer’s provision of the Customer Data to Stuut hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
6.3 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE STUUT PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND STUUT DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. STUUT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. STUUT DOES NOT WARRANT THAT THE STUUT PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE STUUT PLATFORM WILL BE SECURE OR UNINTERRUPTED.
6.4 Use of Artificial Intelligence. Customer acknowledges and agrees that the Stuut Platform includes and integrates with proprietary and/or third-party advanced technologies, such as artificial intelligence, machine learning systems and similar technology and features (collectively, “AI Technology”) and Customer is able to use AI Technology to, among other things, ask questions regarding debt collection best practices. Customer acknowledges and agrees that, in addition to the other limitations and restrictions set forth in this Agreement: Customer will use discretion and independent judgment before relying on, sharing or otherwise using the responses or other content generated by the AI Technology and provided to Customer through the Stuut Platform (“Outputs”) or relying on any actions taken by the AI Technology on behalf of Customer, and will monitor and track any such actions to ensure they are appropriate; AI Technology is based on predefined rules and algorithms, and the Outputs may not necessarily be unique from outputs generated, created, enhanced or modified by other users of the Stuut Platform; AI Technology can perpetuate biases that are present in the data used to train them, which can result in Outputs that are discriminatory or offensive; AI Technology can struggle with complex tasks that require reasoning, judgment and decision-making; AI Technology may misunderstand or misinterpret Customer’s queries or other instructions; and Outputs can lack the personal touch that comes with content created by humans, which can make them seem cold and impersonal. Notwithstanding anything to the contrary in this Agreement, Stuut bears no liability to Customer or anyone else arising from or relating to Customer’s use of any of the Outputs or any actions taken by the AI Technology in connection with Customer’s use thereof.
7. LIMITATIONS OF LIABILITY.
7.1 Disclaimer of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE OR (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.2 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, (C) CUSTOMER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, OR (D) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO STUUT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8. INDEMNIFICATION.
8.1. Indemnification by Stuut. Stuut will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or action by a third party that the Stuut Platform infringes or misappropriates any United States copyright or trade secret (except for claims for which Stuut is entitled to indemnification under Section 8.2, in which case Stuut will have no indemnification obligations with respect to such claim). Stuut will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Stuut Platform by any party other than Stuut; (b) the combination, operation, or use of the Stuut Platform with other product(s), data or services where the Stuut Platform would not by itself be infringing; or (c) unauthorized or improper use of the Stuut Platform. This Section 8.1 states Stuut’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2. Indemnification by Customer. Customer will indemnify, defend and hold Stuut and the officers, directors, agents, and employees of Stuut (“Stuut Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Stuut Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or action by a third party that arises out of or is in connection with (a) any use by Customer of the Stuut Platform in violation of this Agreement, (b) the Customer Data, including Stuut’s use of the Customer Data in accordance with this Agreement, or (c) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.
8.3. Action in Response to Potential Infringement. If the use of the Stuut Platform or any portion thereof by Customer has become, or in Stuut’s opinion is likely to become, the subject of any claim of infringement, Stuut may at its option and expense (a) procure for Customer the right to continue using the Stuut Platform as set forth hereunder; (b) replace or modify the Stuut Platform to make it non-infringing so long as the Stuut Platform has at least equivalent functionality; (c) substitute an equivalent for the Stuut Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
8.4. Indemnification Procedure. If a Customer Indemnified Party or a Stuut Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
9. GOVERNMENT MATTERS. Customer may not remove or export from the United States or allow the export or re-export of the Stuut Platform, or any direct product thereof 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. As defined in FAR section 2.101, the Stuut Platform (including the software, documentation and data related thereto) 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.
10. GENERAL.
10.1. Force Majeure. No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.
10.2. Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. The terms and conditions of this Agreement are severable. If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force. Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.
10.3. Relationship of the Parties. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
10.4. Remedies. Each Party acknowledges that a breach by it of any of the terms of Section 5 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages. Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 5.
10.5. Governing Law; Consent to Jurisdiction. The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.
10.6. Assignment; Binding Effect. Neither Party may assign or transfer this Agreement in whole or in part, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates, whether by merger or purchase or otherwise. Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.
10.7. Notices. All notices under this Agreement will be in writing, reference this Agreement and be sent to the address set forth on the Order Form. Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt. Each Party may update its notice address by providing written notice to the other Party in accordance with this Section 10.7.
10.8. No Waiver. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
10.9. Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. To the extent of any conflict or inconsistency between the provisions in the body of these Terms and Conditions and the Order Form, the terms of these Terms and Condition will prevail, unless the Order Form expressly amends a provision in these Terms and Conditions.