1. USE OF SUBSCRIPTION SERVICES.
(a) Term. This Agreement and the License shall commence on the Effective Date set forth in the Subscription Order Form and shall each automatically renew for successive terms equal to the initial term unless cancelled by either party in writing at least thirty (30) days before the expiration of the current term (the “Term”) for annual or longer Agreements and at least seven (7) days before the expiration of the current term for monthly Agreements. Provided, however, the Term shall terminate prior to the scheduled date of termination if subject to Sections 10 and/or 11 below or violation of the Acceptable Use Policy or EULA.
(b) Right to Use. We grant you the right to access and use the Services included with your Subscription (“Service” or “Services”), as further described in this agreement. We reserve all other rights.
(c) Acceptable Use. Customer may use the Service only in accordance with this Agreement. You may not reverse engineer, decompile, disassemble, or work around technical limitations in the Service, except to the extent applicable law permits it despite these limitations. You may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Services. You may not rent, lease, lend, resell, transfer, or host the Service, or any portion thereof, to or for third parties except as expressly permitted in this Agreement. You must heed to the terms of the Acceptable Use Policy detailed in Section 2 of this Agreement.
(d) High Risk Use. Customer may not use the Services for any application where a failure of those Services could result in death, serious injury, environmental damage or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation, aviation and flammable environments. Customer acknowledges that StoneFly makes no assurances that the Services are suitable for any high-risk use.
(e) Customer Data. You are solely responsible for the content of all Customer Data. You will secure and maintain all rights in Customer Data necessary for us to provide the Services to you without violating the rights of any third party or otherwise obligating StoneFly to you or to any third party. StoneFly does not and will not assume any obligations with respect to Customer Data or to your use of the Services other than as expressly set forth in this agreement or as required by applicable law.
(f) Responsibility for your Accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your use of the Services. You must promptly notify our customer support team about any possible misuse of your accounts or authentication credentials or any security incident related to the Services. Additional details are described in Section 8 of this Agreement.
(g) Additional Software for Use with the Services. To enable optimal access to and use of certain Services, you may install and use certain Software in connection with your use of the Service. We license Software to you; we do not sell it. Proof of your Software license is (1) this Agreement, (2) any order confirmation, and (3) proof of payment. Your rights to access Software on any device do not give you any right to implement StoneFly patents or other StoneFly intellectual property in software or devices that access that device.
2. ACCEPTABLE USE POLICY
The following is a list of the policies and procedures in our Acceptable Use Policy. The following activities are forbidden in conjunction with use of the Subscription or Service. Any of these violations will result in immediate cancellation of your Subscription with NO refunds of any kind.
- Spamming — Unsolicited, commercial mass e-mailing (known as “spamming”) is a strongly disfavored practice among Internet users and service providers. It is particularly harmful not only because of its negative impact on consumer attitudes toward StoneFly, but also because it can overload StoneFly’s network and disrupt service to StoneFly’s clients.
- Copyright or Intellectual Property Rights Violation — Violation of copyrights and/or Intellectual Property rights held by individuals and corporations or other entities can result in civil and criminal liability for the infringer, and can involve the ISP in litigation and possible loss of reputation.
- Distribution and/or Transmission of Obscene or Indecent Speech or Materials — Violation of indecency and obscenity laws can result in criminal penalties.
- Distribution and/or Transmission of Illegal Software, Information, or Files — Sites that exist to transport, offer, or distribute illegal software or information (“warez” sites) are not allowed.
- Defamation — Defamatory speech distributed over the Internet can result in civil liability for the defamer and litigation against the ISP whose facilities were used to distribute the defamatory material.
- Illegal/Unauthorized Access to Other Computers or Networks — The illegal or unauthorized accessing (often known as “hacking”) of computers or networks carries potential civil and criminal penalties under both federal laws and the laws of most states.
- Distribution of Internet Viruses, Worms, Trojan Horses and Other Destructive Activities — Distribution of Internet viruses, worms, Trojan horses and other destructive activities, such as hacking, can result in serious civil and or criminal liability under federal and state law.
- Export Control Violations — The law limits the ability of persons to export encryption software, over the Internet or otherwise, to points outside the United States.
Other Activities — whether lawful or unlawful, that StoneFly determines to be harmful to StoneFly Customers, operations or reputation, including any activities that restrict or inhibit any other user from using and enjoying the service or the Internet.
3. AGREEMENT TO PROVIDE SERVICES AND PAY FEES.
Pursuant to the Subscription Order Form, StoneFly has agreed to provide certain Services to the Customer, and the Customer has agreed to pay certain fees (“Fees”) to StoneFly in consideration therefore.
(a) Pricing and Payment of Fees. Payment for Fees will be automatically billed to the Credit Card specified on the Subscription Order Form or online checkout on the day the Subscription is executed and within the first five (5) calendar days of each Renewal Term (“Due Date”). Customer agrees to and shall pay the Fees to StoneFly, in advance, for the Services to be rendered by StoneFly to Customer during said upcoming term, without offset, deduction or credit of any kind and in good and drawable funds. Customer agrees to provide updated or new credit card information if their credit card expires or is canceled at any time during the Subscription. If Customer for any reason fails to pay the Fees to StoneFly by the Due Date of any Term hereof, StoneFly may suspend or otherwise cease performing any or all Services to Customer if payment for any Service is not timely paid in full. Such suspension shall include, without limitation, denying Customer access to the Service and any data it may be currently storing. Time is of the essence with respect to Customer’s performance and the making of payments hereunder. If Fees remain unpaid for a thirty (30) day period then the Services will be permanently disconnected and all Customer Data will be deleted. Fees are not refunded or prorated for any reason if Subscription or the Agreement is terminated or modified before the end of the Initial Term or successive Renewal Term(s). StoneFly reserves the right to change Prices and/or Fees at any time for subsequent Renewal Terms. Notifications of Price and/or Fee changes will be provided to the Customer no less than 30 days prior to the specified change.
(b) Service Usage Audits and Payment for Excess Service Usage. Actual Service usage is audited on a monthly basis for all term lengths and excess Services consumed are automatically billed on a postpaid basis during the following month. For StoneFly cloud rental customers without their own Veeam licenses (are renting Veeam Backup & Replication, Veeam Availability Suite, or Veeam Agent licenses from StoneFly), StoneFly requires remote access to the backup server running Veeam to collect monthly license usage that is then reported to Veeam. This remote access requirement does not apply to customers who have Veeam perpetual licenses or Veeam Annual Subscriptions registered in their name. StoneFly vendors such as Microsoft, Amazon Web Services (AWS) and Veeam report each Customer’s usage of their Services to StoneFly on a delayed calendar month basis. This results in an overlap of two or more billing cycles. Excess services consumed during the calendar month of January will typically be billed to the Customer’s payment account in February, excess services consumed during the calendar month of February will typically be billed to the Customer’s payment account in March, and so on for each subsequent calendar month. However, due to delayed usage reporting from StoneFly’s vendors, StoneFly reserves the right to bill the Customer’s payment account for any excess services consumed by the Customer, and correct any billing errors for Services consumed but improperly billed to the Customer within four months after the calendar month in which they were consumed. Excess services include but are not limited to: (i) Veeam cloud rental licenses including Veeam Availability Suite, Veeam Backup & Replication, and Veeam Cloud Connect where licenses are consumed on a per VM, per workstation, per server or per mailbox basis. Excess Veeam licenses consumed will be billed at the identical rate (excluding any promotional pricing) as the same license SKUs on Customer’s Subscription; (ii) Microsoft Azure Data Out fees will be billed at 10-cents per GB; (iii) Virtual Machines that are spun up in the StoneFly Cloud are billed at a rate of 4-cents per vCPU hour and 2.85-cents per GB of RAM per hour; (iv) Public IPv4 addresses at a rate of $2 per IP per month with written justification to ARIN and must maintain active usage; (v) Public IPv6 addresses are available at no extra charge. If excess Services are consumed for 2 or more consecutive months, then it will be understood that the customer wishes to increase the quantity of the Services in their Subscription and the terms of the above paragraph will apply. Payment for all excess service usage consumed during the Subscription will continue to be billed to the Customer after the Service or Subscription is terminated until all excess services have been accounted for and paid for by the Customer.
(c) Subscription Modifications. Customer may increase the quantity of Services within their Subscription at any time. Fees for the current partial Term for new Services must be paid at the time of License issuance. Your Subscription may include StoneFly licensed services as well as third-party licensed services. Fees for additional StoneFly licensed services are prorated by calendar days and months on all Term Agreements. Fees for additional third-party licensed services such as Veeam are only prorated in monthly increments on 1-year and 3-year Terms and are billed as a full month on Month-to-Month Agreements. Fees for all Storage TBs and Veeam licenses will then be aggregated within the Subscription for subsequent Renewal Terms.
Customer may decrease the quantity of Services within their Subscription or terminate their Subscription at any time, however, prorated refunds will not be issued for any Services removed from the Subscription before the end of the current Term. Customer must provide notice of a planned Service decrease or termination at least seven (7) days prior to the end of the Term for Month-to-Month Agreements or at least thirty (30) days prior to the end of the Term for Annual or longer Agreements or the Service will automatically be included in the Renewal Term at its current level.
(d) Taxes. Customer is responsible for all taxes under this Agreement, however designated, levied or based on such charges excluding income taxes payable by StoneFly, and Customer’s tax obligations include, without limitation, all state and local privilege taxes, sales and use taxes, excise taxes based on gross revenue, and ad valorem or personal property taxes (collectively, “Tax”). Customer agrees that if any of the foregoing is paid by StoneFly, Customer shall reimburse StoneFly for the amount paid plus any related expenses incurred and interest assessed. Unless otherwise stated as a separate line item on any bill or invoice provided by StoneFly, all payments required by this Agreement are exclusive of any applicable Tax.
(e) Customer Identified Billing Errors. If Customer identifies a billing error on their most recent Invoice or online subscription renewal email, then they must contact StoneFly and provide full details of the error within thirty (30) days of the date that they received the Invoice or subscription renewal email that contains the error. StoneFly will investigate the alleged billing error and notify the Customer of the results of the investigation within fourteen (14) days of the Customer’s submission of the billing inquiry.
(f) Credit Card Chargeback. A credit card chargeback fee of $50 will be charged to any Customer’s account for any chargeback received by their financial institution. The original charge amount and penalty fee must be paid immediately in order to guarantee that Services will remain online and available. If a Customer or anyone paying on the Customer’s behalf has used a credit card to pay for Services ending in 2 or more chargebacks, then credit card payment privileges will be revoked and full payment will be due via money order or wire transfer. This fee will be waived and credit card payment privileges reinstated if the chargeback resulted in error, provided that supporting documentation is submitted. If a credit card was used to pay for more than one Customer account resulting in multiple chargebacks, each account will be assessed the $50 fee. Chargebacks received are reversed from the Customer’s account, leaving the balance due and payable immediately. Outstanding balances are subject to the unpaid fees and delinquent accounts policy and may result in suspension or Termination of the Services.
4. SERVICE LEVEL AGREEMENT (SLA).
StoneFly guarantees you will have at least 99.9% connectivity to the Service. This uptime percentage is calculated on a “per month” basis as defined below. At no time with the Service Level be calculated on a partial month. If we do not achieve and maintain the Service Level specified above, then you may be eligible for a credit towards a portion of the Fees you paid for the Service that experienced downtime during that one month period. We will not modify the terms of your SLA during the initial term of your subscription; however, if you renew your subscription, the version of this SLA that is current and published on the StoneFly web site at the time of each renewal will apply throughout each of your renewal term(s).
Separate Service Level Agreements apply for select Services hosted in Microsoft Azure as described at the links below:
(a) Definitions Pertaining to SLA.
“Downtime” is the total accumulated minutes that are part of Minutes in the Month that Connectivity to the Service was prevented.
“Applicable Monthly Period” means, for a month in which a Service Credit is owed, the number of days that you are a subscriber for a Service.
“Applicable Monthly Service Fees” means the total fees actually paid by you for a Service that are applied to the month in which a Service Credit is owed.
“Connectivity” is bi-directional network traffic between the Service and other IP addresses using TCP or UDP network protocols in which the Service is configured for allowed traffic. The IP addresses can be IP addresses in the same Cloud as the Service, IP addresses within the same virtual network as the Service or public, routable IP addresses.
“Incident” means (i) any single event, or (ii) any set of events, that result in Downtime.
“Month” means the 28-31 day period that matches the dates of a given monthly billing cycle for customers on Month-to-Month Term Agreements. If you are on an Annual Term Agreement, then each “Month” begins on the same calendar day in which your Service began (e.g. if you started a 1-year Agreement on December 5th, then each SLA month will also start on the 5th and end on the 4th of the following month.
“Minutes in the Month” is the total number of minutes in a given monthly billing cycle.
“Monthly Downtime Percentage” is calculated by the percentage of Minutes in the Month in which the Service had Downtime. Monthly Downtime % = Minutes of Downtime / Minutes in the Month X 100
“Monthly Uptime Percentage” is calculated by the percentage of Minutes in the Month in which the Service had Downtime. Monthly Uptime % = (Minutes in the Month – Downtime) / Minutes in the Month X 100
“Partial Downtime” is when Connectivity to only a portion or subset of the Service was prevented.
“Service Credit” is the percentage of the Applicable Monthly Service Fees credited to you following StoneFly’s claim approval.
“Service Level” means the performance metric(s) set forth in this SLA that StoneFly agrees to meet in the delivery of the Services.
“Service Resource” means an individual resource available for use within a Service.
(b) The following Service Credit is applicable to the Service when Service Levels do not achieve a 99.9% Monthly Uptime Percentage:
Service Credit = Monthly Downtime Percentage X Applicable Monthly Service Fees for the Impacted Service (or Portion Thereof for Partial Downtime)
(c) Claims. In order for StoneFly to consider a claim, you must contact StoneFly via email or phone within 24-hours of the onset of the outage to report the incident. Once the service has been fully restored you must submit the claim to support at StoneFly including all information necessary for StoneFly to validate the claim, including but not limited to: (i) a detailed description of the Incident; (ii) information regarding the time and duration of the Downtime; and (iii) descriptions of your attempts to resolve the Incident at the time of occurrence. We must receive the claim within thirty (30) days of the Incident. For example, if the Incident occurred on March 15th, we must receive the claim and all required information by April 14th. We will evaluate all information reasonably available to us and make a good faith determination of whether a Service Credit is owed. We will use commercially reasonable efforts to process claims within forty-five (45) days of receipt. Credit will not be issued for any Downtime that may have occurred more than 24-hours before the customer first reported the issue to StoneFly. You must be in compliance with the Agreement in order to be eligible for a Service Credit. If we determine that a Service Credit is owed to you, we will apply the Service Credit to your Applicable Monthly Service Fees. If you purchased more than one Service, then you may submit claims pursuant to the process described above as if each Service were covered by an individual SLA. Unless as otherwise provided in a specific SLA, only one Service Credit is permitted per Service for an Applicable Monthly Period.
(d) Service Credits. Service Credits are your sole and exclusive remedy for any performance or availability issues for any Service under the Agreement and this SLA. You may not unilaterally offset your Applicable Monthly Service Fees for any performance or availability issues. Service Credits apply only to fees paid for the particular Service or Service Resource for which a Service Level has not been met. In cases where Service Levels apply to individual Service Resources or to separate Service tiers, Service Credits apply only to fees paid for the affected Service Resource or Service tier, as applicable. The Service Credits awarded in any billing month for a particular Service or Service Resource will not, under any circumstance, exceed your monthly service fees for that Service or Service Resource, as applicable, in the billing month. Service Credits do not apply to third-party licensed services such as Veeam. If you purchased a Service from a reseller, you will receive a service credit directly from your reseller and the reseller will receive a Service Credit directly from us.
(e) Limitations. This SLA and any applicable Service Levels do not apply to any performance or availability issues:
1. Due to factors outside our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centers, including at your site or between your site and our data center);
2. That result from the use of services, hardware, or software not provided by us, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
3. Caused by your use of a Service after we advised you to modify your use of the Service, if you did not modify your use as advised;
4. During or with respect to preview, pre-release, beta or trial versions of a Service, feature or software (as determined by us);
5. That result from your unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;
6. That result from your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
7. That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
8. That result from your attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behavior; or
9. For Services reserved, but not paid for, at the time of the Incident.
StoneFly and Customer, for itself, its agents, employees and representatives, agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law.
Customer and its respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an “Indemnifying Party”) each hereby agree to and shall indemnify, defend, protect and hold StoneFly and its respective officers, directors, shareholders, employees, agents, representatives, parent companies, affiliated companies and subsidiary companies (each, as an “Indemnified Party”) free and harmless from and against all Claims (defined below) for damages (including but not limited to attorneys’ fees, costs and expenses), injury and death arising out of or relating directly or indirectly to the failure or alleged failure by the Indemnifying Party to comply with this Agreement, the License granted hereunder and Customer’s use of the Service. For purposes of this Section, the term “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees and costs. This indemnification extends to and includes (a) Claims for injury to any persons (including death at any time resulting from that injury), and loss of, injury or damage to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage, or destruction of the Premises). The provisions of this Section shall survive the termination, cancellation or expiration of this Agreement for any reason. The Indemnified Party seeking indemnification under this Section shall give the Indemnifying Party prompt notice of any claim asserted or threatened against such Indemnified Party on the basis of which such Indemnified Party intends to seek indemnification, but the obligations of the Indemnifying Party shall not be conditioned upon receipt of such notice except to the extent that the Indemnifying Party is actually prejudiced by such failure to give notice). The Indemnifying Party shall promptly assume the defense of any Indemnified Party, with counsel reasonably satisfactory to such Indemnitee, and the fees and expenses of such counsel shall be at the sole cost and expense of the Indemnifying Party. Notwithstanding the foregoing, any Indemnified Party shall be entitled, at its expense, to employ counsel separate from counsel for the Indemnifying Party and from any other party in such action, proceeding, or investigation. An Indemnified Party may not agree to a settlement of a Claim without the prior written approval of the Indemnifying Party, which approval shall not be unreasonably withheld. No Indemnifying Party may agree to a settlement of a Claim against an Indemnified Party unless such settlement includes a full release of the Indemnified Party.
7. DISCLAIMER OF WARRANTIES.
THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF GOODS. STONEFLY PROVIDES THE SERVICES ON AN “AS IS WHERE-IS” BASIS AND WITH “ALL FAULTS” AND MAKES NO WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, THE SPACE, THE PREMISES, THE BUILDING, THE LICENSE, OR ANY OTHER RIGHTS, OBLIGATIONS OR PERFORMANCE UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE ALL HEREBY DISCLAIMED. STONEFLY SHALL NOT BE RESPONSIBLE FOR ANY DELAYS OF ANY KIND, REGARDLESS OF CAUSE. In the event of any breach of this Agreement by StoneFly, Customer’s sole and exclusive remedy shall be as follows: upon delivery of written notice to StoneFly of the breach, StoneFly shall, in its sole discretion, re-perform or correct any Services or other breaches. THE FOREGOING OBLIGATIONS AND REMEDIES SET FORTH IN THE PRECEDING SENTENCE SHALL CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT, WHICH REMEDIES SHALL APPLY EVEN IF THEY FAIL OF THEIR ESSENTIAL PURPOSE.
It is Customer’s obligation to back up their data. If the Services include backup services, these are provided as a supplement Customer’s own backup efforts. Because no backup method is failsafe, StoneFly makes no warranties regarding the thoroughness of their backup solution. If Customer’s data is restored from backup, it will be restored in the manner it is stored by StoneFly. This may not include formatting and other elements necessary to make the restored data available on the internet, or in the form originally transmitted to StoneFly. StoneFly is not obligated to restore the data in that format.
8. INTELLECTUAL PROPERTY RIGHTS.
With respect to elements of the Service that StoneFly provides to the Customer, StoneFly hereby grants Customer a non-exclusive, non-transferable license to use those elements of the Services solely during the term of the Agreement and in connection with Customer’s use of the Services in compliance with Customer’s contract with StoneFly. All rights with respect to the Services, including, but not limited to, intellectual property or similar rights with respect thereto, belong exclusively to StoneFly or the applicable licensor, whichever is applicable, whether or not they are embedded in the Services. Customer acknowledges and agrees that title to the software or engineering provided hereunder does not pass to Customer under this Agreement and shall at all times remain with StoneFly or the applicable licensor. Customer shall not cause or permit the reverse engineering, disassembly or decompilation of any software or engineering provided as a part of the Services. Customer shall use the software in object code form only. Customer shall not be obligated to make any royalty or other payments with respect to the Services other than as provided in the Agreement.
StoneFly may issue to Customer one or more username and password combinations (“Credentials”) for use in connection with the Services. These Credentials are personal to the Customer; the Customer should not permit any unauthorized third party to use them. StoneFly may assume that all use is by the Customer or authorized by the Customer. StoneFly shall have no liability to the Customer for any unauthorized use of the Credentials. StoneFly may decline to provide certain aspects of the Services if the Customer has not provided the correct Credentials to StoneFly on request. The Customer must notify StoneFly immediately if the Customer believes that the Credentials have been compromised. Promptly upon notice, StoneFly shall remove permissions from the compromised Credentials and issue the Customer a new set of Credentials.
10. EVENT OF DEFAULT BY CUSTOMER.
The occurrence of any one or more of the following shall constitute an “Event of Default” by Customer under this Agreement: (a) on or after the seventh (7th) calendar day after the date when due, Customer for any reason fails to pay to StoneFly any Fees, Obligations or any other amount due hereunder, or (b) on or after the 7th day after the date when due, Customer fails to pay to any other person or entity to whom Customer is required by the Agreement to make payment of any amount required by the Agreement to be paid; or (c) Customer fails to perform any obligation or covenant set forth in this Agreement and is not cured within ten (10) business days following receipt of written notice thereof.
11. STONEFLY’S REMEDY UPON DEFAULT; TERMINATION.
(a) Rights in the Event of Default by Customer. In addition to all other rights and remedies granted to StoneFly in the Agreement and available under applicable law, upon the occurrence of an Event of Default by Customer, all obligations of StoneFly to provide to Customer the Services under this Agreement shall immediately and automatically terminate without further notice to Customer and StoneFly shall have the right to: (i) cease providing the Services to Customer and (ii) terminate this Agreement, subject to the continuing rights of StoneFly under this Agreement.
(b) Customer’s Retrieval/Removal of Customer Data. Notwithstanding anything to the contrary contained in this Agreement, Customer shall not be permitted to retrieve or remove any of Customer’s Data from the Service or the storage the Service accesses at any time when Customer is subject to an Event of Default, delinquent in meeting any of its payment obligations or is otherwise in breach of any other material term under this Agreement.
(c) If the Default by Customer is not cured within a thirty (30) day period then the Services will be permanently disconnected and all Customer Data will be deleted.
12. EVENT OF DEFAULT BY STONEFLY
The failure by StoneFly to perform any obligation or covenant set forth in this Agreement, if the same is not cured within ten (10) business days following receipt of written notice thereof, shall constitute an “Event of Default” by StoneFly. Upon the occurrence of such Event of Default, Customer may terminate the Agreement upon not less than three (3) business days’ written notice to StoneFly.
13. ATTORNEYS’ FEES
If any legal or administrative action or proceeding is brought by either party against the other party to enforce or interpret any term or provision of this Agreement, the prevailing party in said action or proceeding shall be entitled to recover from the party not prevailing its reasonable attorneys’ fees and costs incurred in connection with the prosecution or defense of such action or proceeding. The foregoing includes, without limitation, attorneys’ fees and costs of investigation incurred in appellate and remand proceedings, or costs incurred in establishing the right to indemnification
The License and obligations under this Agreement are personal to Customer, and StoneFly has entered into this Agreement and granted the License to Customer after an evaluation of creditworthiness and experience. Customer may not assign, sub-license or transfer this Agreement or the Service in whole or in part, whether by contract, merger, reorganization or the sale of all or substantially all of the stock, equity or control of Customer, and Customer will not allow any other person or entity to use the Service for any reason, without first obtaining the prior written consent of StoneFly, which consent may be granted or withheld in StoneFly’s sole and absolute discretion. Any purported assignment or delegation without the required consent shall be null and void and of no legal force or effect.
15. GOVERNING LAW
The Agreement and all documents and instruments executed in connection therewith or herewith shall be governed by and interpreted in accordance with the substantive laws of the State of California without regard to principles of conflict of laws. The parties each agree that sole and exclusive jurisdiction and venue for any action or litigation arising from or relating to this Agreement shall be an appropriate court located in Alameda County, California.
16. NO WAIVER
The failure of either party at any time to enforce any right or remedy available to it under the Agreement or under any other document or instrument executed in connection herewith or therewith shall not be construed to be a waiver of such right or remedy with respect to any other breach or failure by either party.
17. LIMITATION OF LIABILITY.
(a) NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW: (I) THE TOTAL AND AGGREGATE LIABILITY OF STONEFLY TO CUSTOMER FOR ANY REASON WHATSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSE, THE SERVICES, PREMISES OR SPACE SHALL NOT IN ANY EVENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO STONEFLY BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; AND (II) IN NO EVENT SHALL STONEFLY BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, INJURY TO BUSINESS OR REPUTATION, LOST DATA, BUSINESS OR CUSTOMERS, THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS, WHICH RESULT FROM ANY OUTAGES OF THE SERVICES OR ANY OTHER FAILURE OF CONNECTIVITY OR ANY OTHER FAILURES. (b) STONEFLY SHALL NOT IN ANY CASE BE LIABLE FOR ANY OF THE FOLLOWING: (I) THE CONTENT OF THE INFORMATION PASSING OVER STONEFLY’S NETWORK; (II) UNAUTHORIZED ACCESS OR DAMAGE TO, ALTERATION, THEFT, DESTRUCTION OR LOSS OF, EQUIPMENT, CUSTOMER’S RECORDS, INFORMATION, FILES OR DATA; (III) ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS AND SAVINGS) OR INCIDENTAL DAMAGES, EVEN IF STONEFLY IS INFORMED OF THEIR POSSIBILITY; (IV) CLAIMS FOR DAMAGES CAUSED BY CUSTOMER; (IV) CLAIMS AGAINST CUSTOMER BY ANY OTHER PARTY; OR (V) ANY ACT OR OMISSION OF ANY OTHER PARTY FURNISHING SERVICES AND/OR PRODUCTS, OR THE INSTALLATION AND/OR REMOVAL OF ANY AND ALL EQUIPMENT OR SUPPLIES. (c) STONEFLY SHALL NOT BE HELD LIABLE FOR ANY DAMAGES, INCLUDING THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, OR COMMITMENTS INCURRED IN CONNECTION WITH CUSTOMER’S BUSINESS, WHICH RESULT FROM SERVICE OUTAGES OR ANY OTHER FAILURE OF CONNECTIVITY. STONEFLY SHALL NOT BE LIABLE FOR ANY OTHER TYPE OF DOWNTIME OR CONNECTIVITY FAILURE OR SERVICE INTERRUPTION. (d) CUSTOMER AND ITS EMPLOYEES, AGENTS AND REPRESENTATIVES ASSUME ALL RISK, AND RELEASES STONEFLY AND ITS AGENTS, EMPLOYEES AND REPRESENTATIVES FROM ANY LIABILITY WHATSOEVER ARISING OUT OF ANY DAMAGE, LOSS OR INJURY TO PROPERTY, EVEN IF CAUSED BY STONEFLY’S OWN NEGLIGENCE. (e) STONEFLY ASSUMES NO LIABILITY FOR ANY DAMAGES TO, OR LOSS OF, ANY CUSTOMER EQUIPMENT RESULTING FROM ANY ACTION OR FAILURE TO ACT BY ANY OF CUSTOMER’S THIRD PARTY AGENTS, VENDORS OR SERVICE PROVIDERS. (f) ALL OF THE LIMITATIONS IN THIS SECTION 21 SHALL APPLY EVEN IF STONEFLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER ANY CLAIMS ARE BASED IN CONTRACT, TORT, STRICT LIABILTY, PRODUCT LIABILITY OR OTHERWISE.
18. CONTACT INFORMATION
Customer must provide StoneFly with all information, access, and full good faith cooperation, including, if required, with your third party vendors, reasonably necessary to enable StoneFly to deliver the Services. StoneFly will rely on the information that Customer provides to StoneFly. It is Customer’s obligation to keep this information up-to-date. StoneFly has no liability if communications are delayed, or not delivered, because of Customer’s failure to keep this information up-to-date. Customer agrees that StoneFly may provide Customer with information that may negatively affect Customer by email. Please ensure that the email address that Customer provides to StoneFly is configured in a way so that information from StoneFly is not rejected or marked as SPAM
All notices and demands hereunder shall be in writing and shall be served by personal service by mail at the address of the receiving party set forth below (or at such different address as maybe designated by such party by written notice to the other party). All Notices and other communications hereunder shall be in writing and shall be deemed to have been duly given as of the date of confirmed delivery or confirmed facsimile transmission. To be effective, Notices must be delivered to the attention of:
TO: StoneFly, Inc.
Attn: Legal Department
26250 Eden Landing Road
Hayward, CA 94545
Telephone: (510) 265-1616
Fax: (510) 265-1565
Customer Contact Name and Address Listed in the Subscription Order Form.
(a) Scheduled Maintenance. Maintenance window for disruptive work to the Service will be limited to 9:00 P.M. to 1:00 A.M., Eastern Daylight Time (EDT), any day with requirement of one (1) calendar week notification to Customer prior to maintenance. StoneFly will send an e-mail notification of such disruptive maintenance to Service to Authorized Contacts of Customer. Once notification is sent to Customer this will be considered a “Scheduled Maintenance”. Scheduled Maintenance does not qualify for Service Level Agreement Credits.
(b) Emergency Maintenance. StoneFly reserves the right to perform emergency Service maintenance as needed outside the Scheduled Maintenance window, in which case StoneFly will make a reasonable effort to notify the Customer if feasible under the circumstances. Any such maintenance will be considered an “Emergency Maintenance”.
21. FORCE MAJEURE.
The phrase “Force Majeure” means and refers to any of the following events: acts of war, acts of God; rebellion or sabotage or damage resulting there from; expropriation or confiscation of facilities by any governmental authority; compliance with any order of any governmental authority; acts of the government in its sovereign capacity which cause a delay, deferral or suspension in StoneFly’s ability to provide the Services; subsidence; earthquakes; hurricanes; fires; floods; explosion; accidents; quarantine restrictions; freight or other embargoes; casualty loss; strikes; labor disputes; shortages of materials or transportation; electrical blackouts or brownouts; the failure of any utility provider to deliver electricity or water to the Premises; and the failure of Customer’s Equipment. Notwithstanding the above, Force Majeure shall not include (a) any event caused by the fault, negligence, failure to pay money or financial inability of the party claiming Force Majeure, and (b) any event within the reasonable control of the party claiming Force Majeure. A party’s obligation to pay money to another party will not be delayed, affected or changed by an event of Force Majeure.
22. RELATIONSHIP OF THE PARTIES
The parties agree that their relationship hereunder is in the nature of independent contractors. Neither party shall be deemed to be the agent, partner, joint venturer or employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf. Each party shall be solely responsible for the payment of compensation, insurance and taxes of its own personnel, and such personnel are not entitled to the provisions of any employee benefits from the other party. Neither party shall have any authority to make any agreements or representations on the other’s behalf without the other’s written consent. Additionally, StoneFly shall not be responsible for any costs and expenses arising from Customer’s performance of its duties and obligations pursuant to this Agreement.
Both parties represent and warrant to the other:
(1) that it is a duly organized and existing legal entity under the laws of its domicile, if Customer is a corporation or partnership; (2) that it has full authority to enter this Agreement; (3) that the execution and/or performance of this Agreement does not and will not violate or interfere with any other agreement by which such warranting party is bound; and (4) that the warranting party will not enter into any agreement whose execution/performance would violate or interfere with this Agreement.
Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation and construction of this Agreement, and this Agreement shall be construed as having been jointly drafted by the parties. The titles and headings for particular paragraphs, sections and subsections of this Agreement have been inserted solely for reference purposes and shall not be used to interpret or construe the terms of this Agreement. Any purchase order or other instrument of Customer provided to StoneFly or accompanying any payment is for Customer’s internal use only and its terms shall not alter or amend the terms of this Agreement.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document.
26. LIMITATION OF ACTIONS
No action, regardless of form, arising out of or relating to this Agreement may be brought by the Customer more than three (3) months from the date on which the cause of action accrues. The parties expressly agree that this part, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed from this Agreement and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances.
Each party for itself, its agents, employees and representatives agrees that it will not divulge any confidential or proprietary information it receives from the other party, except as may be required by law. The terms and conditions of this Contract shall be considered confidential or proprietary information under this paragraph. The obligations of confidentiality and indemnification stated herein shall survive the termination of any applicable License or Contract.
The Customer agrees that at all times throughout the duration of this Agreement, StoneFly may identify the Customer in StoneFly’s marketing material and on StoneFly’s websites as a client. StoneFly may use the Customer’s corporate name, trading name and/or logo to identify the Customer. StoneFly agrees that the Customer may withdraw this consent at any time on no less than 14 days’ notice in writing to StoneFly.
30. ENTIRE AGREEMENT
This Agreement, which includes these Terms and Conditions, the Subscription Order Form (Exhibit “A”) and the End-User License Agreement for StoneFly, Inc. Software (Exhibit “B”), attached hereto, constitute the entire understanding of the parties related to the subject matter hereof. The parties have read this Agreement and agree to be bound by its terms, and further agree that it, together with all Exhibits hereto (the terms of which are incorporated herein by this reference), constitutes the complete and entire agreement of the parties and supersedes all and merges all previous communications, oral or written, and all other communications between them relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party. The parties agree that there are no third party beneficiaries to this Agreement, whether express or intended.
EXHIBIT “A” – SUBSCRIPTION ORDER FORM The order form detailing the Customer Contact Information, Services, Effective Date, Fees Required to Begin Service, Service Fees, Optional Fees, and Term of the Service. This form is submitted as a PDF order form via email/fax or as an online order via the StoneFly web site.
EXHIBIT “B” – END-USER LICENSE AGREEMENT FOR STONEFLY, INC. SOFTWARE The EULA detailing the Agreement for use of StoneFly software and online service.
CUSTOMER’S RESPONSIBILITY Customer agrees to and shall abide by and honor all rules, regulations, policies and procedures with regard to the use of the Space, the Premises and the Building from time to time published by StoneFly (whether written or published on StoneFly’s website). By signing the Subscription Order Form the Customer agrees to be bound by these Terms and Conditions. Customer authorizes StoneFly to release Customer’s name to other StoneFly potential and current customers.
Revised: January 2019