StakUp Terms and Conditions Version Dated October 2016
THESE STAKUP TERMS AND CONDITIONS GOVERN YOUR USE OF THE STAKUP SOFTWARE APPLICATION AND USER GUIDE (COLLECTIVELY, THE “STAKUP PLATFORM) THAT YOU ORDER THROUGH WWW.STAKUP.CO, OR UNDER STAKUP’S ORDER FORM.
BY CLICKING THE BOX INDICATING YOUR AGREEMENT TO THE WWW.STAKUP.CO TERMS AND CONDITION (THE “AGREEMENT”) OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITYAND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, THE EXECUTED THE SIGNED ORDER FORM INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT WILL BE NULL AND VOID AND MAY NOT USE THE STAKUP PLATFORM. IF YOU CLICK THE BOX OR EXECUTE THE ORDER FORM INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND SUBSEQUENTLY USE THE STACKUP PLATFORM, YOU WILL BE DEEMED TO HAVE AGREED TO ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
1. StakUp Platform Definitions
Unless otherwise defined in this Agreement, all capitalized words shall have the following meanings:
“StakUp” the incorporated organization that holds the trademark and IP for the StakUp StakUp is company that is privately owned.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
StakUp Platform “Order Form” means any ordering documents for Your subscription to the StakUp Platform, including addenda thereto, that are entered into between You and Us. Order Forms include any pages on http://www.stakup.co or order Forms shall be deemed incorporated herein by reference.
“ Management Platform” mean the StakUp Platform that is re-branded for vertical based clients. All indicated StakUp Platform terms apply to Management Platform and use of the application. StakUp is an incorporated organization that holds the trademark and IP for the StakUp Platform.
“Third-Party Application” means a web application that is provided by a third party and interoperates with the StakUp Platform,
“User Guide” means the online user guide or StakUp for the StakUp Platform, accessible via StakUp Support as updated from time to time.
“Users” means individuals who are authorized by You to use the StakUp Platform, for whom subscriptions to the StakUp Platform have been acquired pursuant to this Agreement, and who have accounts that have been set up by you on the system and have received Usernames and passwords (or by Us at Your request)[ Users may include but are not limited to Your employees, consultants, contractors and agents.
“We,” “Us” or “Our” means StakUp Inc. an Ontario corporation with a principal place of business at in, London, Ontario, Canada.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement.
“Your Application” means a software application that You (or a third party acting on Your behalf) create and that interoperates with the StakUp Platform.
“Your Data” means all electronic data or other information submitted by You to the StakUp Platform.
2. Provision and use of the StakUp Platform
- Provision of the StakUp Platform. We shall make a certain number of subscriptions of the StakUp Platform available to You pursuant to this Agreement and relevant Order Forms. User subscriptions are for designated Users and cannot be shared or used by more than one User. Any new accounts can be added to the StakUp Platform at any time.
- Administration User. Your StakUp Platform subscription includes one administration User subscription unless otherwise agreed to by Us. The administration User subscription may be used solely to administer the StakUp Platform and is considered one of the users of the service for purposes of total user count. You have the option to add or create more Administrator accounts users as your organization sees fit.
- Other Usage Limitations. The StakUp Platform may be subject to other limitations, such as, for example, limits on disk storage space (if hosted by StakUp subject to the storage space listed on the order form), and on the number of calls You are permitted to make against Our application programming interface. Any such limitations are at the sole discretion of Us.
- Support Services. We shall provide support during the term of this Agreement Monday to Friday during business hours between 8:30 a.m. to 5:00 p.m. Eastern Standard Time, excluding holidays. In case of an issue, you should send an email describing the issue to Our customer support service department at [email protected] or via the feedback form on the application. Any supplemental software code provided to You in connection with the support services shall be deemed to be part of the StakUp Platform for the purposes of this Agreement.
- Hosting Services. If specified in the Order Form, We shall host the StakUp Platform in our shared server environment, including Your Data, and provide access to the StakUp Platform 7 days per week, 24 hours per day except for scheduled maintenance during the hours of 10PM to 6 AM or pre-notified of an updated release at the times specified from our support team. We do not guarantee unforeseen outages out of our control.
- Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of, and for the means by which You acquired, Your Data and Your Applications, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the StakUp Platform, and notify Us promptly of any such unauthorized access or use, and (iv) use the StakUp Platform only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the StakUp Platform available to anyone other than Users, (b) sell, resell, rent or lease the StakUp Platform, (c) use the StakUp Platform to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the StakUp Platform to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (e) interfere with or disrupt the integrity or performance of the StakUp Platform or third-party data contained therein, or (f) attempt to gain unauthorized access to the StakUp Platform or Our systems or networks. In addition, if you subscribe to our electronic payment services, you agree to submit funds to us no later than 4 business days from invoice or StakUp will invoice Credit Card on file
3. Third-Party Providers
- Acquisition of Third-Party Products and Services. We may offer Third-Party Applications for sale under Order Forms. The agreement terms with those Third-Party Applications apply to Your use of them. Any acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services including the Third-Party Applications, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services including the Third-Party Applications is required to use the StakUp Platform.
- Third-Party Applications and Your Data. If You install or enable a Third-Party Application for use with the StakUp Platform, You acknowledge that We may allow the provider of that Third-Party Application to access Your Data as required for the interoperation of such Third-Party Application with the StakUp Platform. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by a Third-Party Application provider.
4. Fees and payment for purchased services
- User fees. You shall pay all fees plus applicable taxes as specified in all Order Forms or through www.stakup.co hereunder. Except as otherwise specified herein or in an Order Form or www.stakup.co, (i) fees are quoted and payable in the currency identified on the Order Form or www.stakup.co (ii) fees are based on the organizational size or number of users based on the specified Term and not actual usage, (iii) payment obligations are month to month and fees paid are non-refundable, and (iv) the obligation is based on the term of the contract if the contract is canceled by You, StakUp will invoice based on what is specified in the Order from or www.stakup.co Monthly or Annually and time left on the contract. Annually as specified in the Order form or www.stakup.co are prepaid on a yearly level based on the specified users in the order form or www.stakup.co.
- Invoicing and payment. You will provide Us with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all fees listed in the Order Form for the initial subscription term and based on the any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased User Subscriptions). Such charges shall be made on the selected package or Order Form based, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Yearly will be invoiced and paid on or before the 60 days. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You based on the selected package otherwise in accordance with the relevant Order Form or www.stakup.co. Unless otherwise stated in the Order Form, invoiced charges are due net 15 days from the invoice date. You are responsible for ensuring that We have Your complete and accurate billing and contact information
- Credit Card. You represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with any Purchase; and that (ii) the information you supply to us is true, correct and complete.
- Overdue charges. If any charges are not received from You by the due date (except charges then under reasonable and good faith dispute), then at Our discretion, (a) such charges may accrue late interest at the rate of 2.5% per month, 30% per annum of the outstanding balance from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2(Invoicing and Payment).
- Charges 30 or More Days Overdue. If any charge owing by You under an Order Form is 30 or more days overdue (except charges then under reasonable and good faith dispute), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such Order Forms so that all such obligations become immediately due and payable, and suspend or discontinue Your use of the StakUp Platform until such amounts are paid in full.
- Taxes. You are responsible for paying all taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
- Our License to You.
- We grant you a non-exclusive, non-transferable license during the term specified in the Order Form to use the StakUp Platform for Your internal business purposes and to make one copy of the database thereof for back-up purposes. You shall not (i) permit any third party to access the StakUp Platform except as permitted herein or in an Order Form or www.stakup.co, (ii) create derivate works based on the StakUp Platform, (iii) copy, frame or mirror any part or content of the StakUp Platform, (iv) reverse engineer or decompile the StakUp Platform, (v) access the StakUp Platform in order to build a competitive product or service or to copy any features, functions or graphics of the StakUp Platform, or (vi) remove or alter any copyright notice in the StakUp Platform.
- Your License to Us.
- You grant us a worldwide license to use, reproduce, transmit, display and host Your Data, where applicable, solely as necessary for Us to provide the support services and hosting services, if any, in accordance with this Agreement and otherwise, to permit you to use the StakUp Platform.
- You grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the StakUp Platform any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the StakUp Platform
- You grant us the right to utilize Your organization and organizational logos as part of our marketing including but not limited to print and web material. You have the option to request the removal of such information via a request through [email protected]
6. Proprietary Rights
- Our Proprietary Rights. Subject to the limited rights expressly granted, We reserve all rights, title and interest in and to the StakUp Platform, including all related intellectual property rights subsisting therein. We grant no rights to You other than as expressly set forth herein.
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the StakUp Platform; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms or www.stakup.co, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
- Protection of Your Data. Without limiting the above, in the event that We host the StakUp Platform and Your Data, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, except at Your request in connection with customer support matters, (b) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to prevent or address service or technical problems, or at Your request in connection with customer support matters.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. Exclusion of Warranties
WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN RESPECT OF THE STAKUP PLATFORM AND THE HOSTING SERVICES, IF ANY, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE,WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED IN THE STAKUP PLATFORM. IN ADDITION, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE STAKUP PLATFORM WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE STAKUP PLATFORM AND THE HOSTING SERVICES, IF ANY, WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
You shall defend Us against any claim, demand, suit, or proceeding (“Claim”) made or brought against Us by a third party alleging that Your Data, Your Applications or other materials developed by You (or by a third party on Your behalf) using the StakUp Platform infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation does not arise from the StakUp Platform), and shall indemnify Us for all costs and damages, and for reasonable attorney’s fees, incurred by Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10. Limitation of Liability
- Exclusion of Indirect Damages. IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR YOUR DATA OR FOR INTERRUPTIONS INTHE STAKUP PLATFORM OR THE HOSTING SERVICES.
- Limit on Direct Damages. In respect of any claim, demand or action by YOU against US or any of OUR employees, directors, officers, CONTRACTORS or agents whether based in contract, tort (including negligence), or otherwise, including a breach by US of any of OUR obligations under this Agreement (whether or not a fundamental breach), YOUR exclusive remedy shall be to receive from US payment for actual and direct damages to a maximum aggregate amount equal to the amount paid by YOU IN THE PREVIOUS 12 MONTHS UNDER THE ORDER FORM TO WHICH THE DAMAGE RELATES.
11. Term and Termination
- Term. This Agreement commences on the date You accept it and continues until terminated in accordance with the terms and conditions of this Agreement.
- Term of Purchased Package. Package purchased by You commence on the start date specified in the applicable Order Form or www.stakup.co, and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-User pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 5 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
- Termination by Reseller or StakUP, We may terminate this Agreement (a) at any time without cause upon 60 days’ written notice to You, or (b) upon 7 days’ written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period.
- Return of Your Data. In the event that we host the StakUp Platform containing Your Data, upon request by You made within 30 days after the effective date of termination of this Agreement, We will make available to You for download a file of Your Data in comma separated value (.csv) format or in a SQL database format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
- Surviving Provisions. Sections 6 (Proprietary Rights), 7 (Confidentiality), 8 (Exclusion of Warranties), 9 (Indemnification), 10 (Limitation of Liability), 11.4(Return of Your Data), 11.6 (Surviving Provisions), 12 (Notices, Governing Law, Venue and Waiver of Jury Trial) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
12. Notices, Governing law, Venue, and Waiver of Jury Trial
- Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of material breach or an indemnifiable claim). Notices to Us shall be addressed to the attention of StakUp Inc., London, Ontario, Canada, Attention: OPERATIONS. Notices to You shall be addressed to the system administrator designated by You for Your StakUp Platform account, and in the case of billing-related notices, to the relevant billing contact designated by You.
- Governing law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the Province of Ontario and federal laws of Canada applicable therein, without regard to their conflicts of laws rules. The parties expressly exclude the application of the United Nations Convention on the International Sale of Goods.
- Venue; Waiver of Jury Trial. The provincial and federal courts located in London, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement via Arbitration. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
13. Changes to terms
We may make changes to this Agreement from time to time. When these changes are made, We will make a new copy of this Agreement available on this web page and stakup platform. Prior to the renewal of the term of any Order Form or www.stakup.co, You are responsible for checking the version date of this Agreement specified on the first page. If the Agreement version date has changed, You understand and agree that if you use the StakUp Platform after the renewal term has commenced, You will be deemed to have accepted the updated terms and conditions of this Agreement which will govern your use of the StakUp Platform during such renewal term.
14. General provisions
- Export compliance. Each party shall comply with the export laws and regulations of Canada and other applicable jurisdictions in providing and using the StakUp Platform. Without limiting the foregoing, (a) each party represents that it is not named on any Canadian government list of persons or entities prohibited from receiving exports, and (b) it shall not permit Users to access or use the StakUp Platform in violation of any Canadian export embargo, prohibition or restriction.
- Relationship of the parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- On a voluntary basis. Members are requested to respond each month to the StakUp online surveys. All information collected from Members is collated and synthesized and presented to Members in a monthly StakUp report allowing Members to track and benchmark their own historical performance based on the set of Essential Performance Indicators (EPIs) developed by the StakUp team.
- Members can also access two other StakUp platforms: ReferenceStak and ExpertStak.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, failing which such provision shall be struck, and the remaining provisions of this Agreement shall remain in effect.
- Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent of (not to be unreasonably withheld). Notwithstanding the foregoing, You may assign this Agreement in its entirety (including all Order Forms), without Our consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Your assets not involving a direct competitor of Us. Any assignment made contrary to the foregoing terms shall be void and, at Our option, We may terminate this Agreement upon written notice to You. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their respective successors and permitted assigns.
- Entire Agreement. This Agreement, including all Order Forms or www.stakup.co, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms or www.stakup.co) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
- Force Majeure. Dates and times by which We are required to render performance under this Agreement shall be postponed automatically to the extent and for the period of time that We are prevented from meeting them by reason of any cause beyond Our reasonable control. However, We will notify You of the commencement and nature of such cause and the probable consequences thereof and use Our reasonable efforts to render performance in a timely manner.
- Contract Terms in English. The parties acknowledge that they require that this Agreement be drawn up in the English language only.
If you have any questions about these Terms, please contact us.
Mail: [email protected]