IMPORTANT: PLEASE READ THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”) BEFORE CLICKING THE “ACCEPT” BUTTON, AND/OR USING THE STEALTH ROCKET, INC. (“STEALTH ROCKET”) SOFTWARE-AS-A-SERVICE PRODUCT THAT ACCOMPANIES OR IS PROVIDED IN CONNECTION WITH THIS AGREEMENT. BY CLICKING THE “ACCEPT” BUTTON, AND/OR USING THE STEALTH ROCKET SERVICE IN ANY WAY, YOU AND THE ENTITY THAT YOU REPRESENT (“SUBSCRIBER”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT WITH STEALTH ROCKET AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF SUBSCRIBER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, USE OF THE STEALTH ROCKET SERVICE IS STRICTLY PROHIBITED. PLEASE NOTE THAT STEALTH ROCKET MAY MODIFY OR AMEND THIS AGREEMENT AT ANY TIME. WHEN STEALTH ROCKET MODIFIES OR AMENDS THIS AGREEMENT IT WILL UPDATE THE LAST UPDATED DATE ABOVE, AND STEALTH ROCKET MAY SEND AN EMAIL TO THE LAST EMAIL ADDRESS PROVIDED BY SUBSCRIBER TO STEALTH ROCKET. STEALTH ROCKET MAY REQUIRE SUBSCRIBER TO PROVIDE CONSENT TO THE UPDATED AGREEMENT IN A SPECIFIED MANNER BEFORE ANY FURTHER USE OF THE STEALTH ROCKET SERVICE IS PERMITTED. IF SUBSCRIBER DOES NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), SUBSCRIBER MUST STOP USING THE STEALTH ROCKET SERVICE. OTHERWISE, SUBSCRIBER’S CONTINUED USE OF THE STEALTH ROCKET SERVICE CONSTITUTES ITS ACCEPTANCE OF SUCH CHANGE(S). PLEASE REGULARLY CHECK THIS AGREEMENT.
TERMS AND CONDITIONS
1. DEFINITIONS. As used in this Agreement:
1.1 “Connected Account” means any third-party platform connected to, or integrated
with, the Stealth Rocket Service by or on behalf of Subscriber.
1.2 “Connected Account Data” means any data collected from, or provided by,
any Connected Account.
1.3 “Order Form” means any order form for Stealth Rocket Service executed by
both parties that references this Agreement, which may include, any electronic
order form on Stealth Rocket’s website.
1.4 “Performance Data” means any log files, metadata, telemetry data and other
technical
performance data automatically generated by the Service relating to the use,
performance, efficacy, reliability and/or accuracy of the Stealth Rocket Service,
which does not contain any personally identifiable information or Subscriber
Data.
1.5 “Stealth Rocket Platform” means the technology, including AI and machine
learning algorithms, used by Stealth Rocket to deliver the Stealth Rocket Service
to Subscriber.
1.6 “Stealth Rocket Service” means the on-line service delivered by Stealth
Rocket to Subscriber using the Stealth Rocket Platform as described in the
Order Form.
1.7 “Subscriber Data” means Connected Account Data, and any other data uploaded
or transmitted to the Stealth Rocket Service by Subscriber.
1.8 “Users” means Subscriber’s employees, representatives, consultants, contractors,
or agents authorized by Subscriber to access the Stealth Rocket Service.
2. STEALTH ROCKET SERVICE. Commencing as of the date set forth in the Order
Form, subject to the terms and conditions of this Agreement, Stealth Rocket
hereby grants to Subscriber a non-sublicensable, non-transferable (except as
provided in Section 12), non-exclusive subscription to access and use the Stealth
Rocket Service by solely for Subscriber’s internal business purposes.
3. ONBOARDING AND CONNECTED ACCOUNTS.
3.1 Connected Accounts. In order to access many of the features and functions
of the Stealth Rocket, Service, Subscriber will need to link its Connected
Accounts to the Stealth Rocket Service. By granting Stealth Rocket access to
any Connected Account, (i) Subscriber represents and warrants that it is entitled
to disclose any log-in information provided by Subscriber in connection therewith
(if applicable) and/or to grant Stealth Rocket access to such Connected Accounts,
(ii) Subscriber represents and warrants that it is in good standing with respect
to such Connected Accounts, and (iii) Subscriber acknowledges that Stealth
Rocket may access Connected Account Data so that it may be used in accordance
with the terms of this Agreement. Subscriber further acknowledges and agrees
that each Connected Account, including access to and use thereof and uptimes
related thereto, is solely determined by the applicable provider of the relevant
Connected Account. Stealth Rocket will have no liability for any unavailability
of any Connected Account, or any third-party provider’s decision to discontinue,
suspend or terminate any Connected Account.
3.2 Integrating Connected Accounts. Subscriber acknowledges and agrees that
in order to properly onboard to the Stealth Rocket Service and make full use
of features and functions of the Stealth Rocket Service, Subscriber will need
to integrate or connect to Connected Accounts with the Stealth Rocket Service.
4. SUBSCRIBER’S USE OF THE STEALTH ROCKET SERVICE.
4.1 Access and Security Guidelines. Each User will be provided access to and
use of the Stealth Rocket Service through confidential account credentials.
Subscriber will be responsible for all uses of its account, except to the extent
caused by Stealth Rocket’s negligence. Subscriber will promptly notify Stealth
Rocket of any unauthorized use or access to its account. User seats may not
be shared amongst other Users.
4.2 Restrictions. Subscriber will not, and will not permit any User or other
party to: (a) reverse engineer, disassemble or decompile any component of the
Stealth Rocket Platform; (b) interfere in any manner with the operation of
the Stealth Rocket Service, or the Stealth Rocket Platform or the hardware
and network used to operate the Stealth Rocket Service; (c) sublicense any
of Subscriber’s rights under this Agreement, or otherwise use the Stealth Rocket
Service for the benefit of a third party or to operate a service bureau; (d)
modify, copy or make derivative works based on any part of the Stealth Rocket
Platform; or (e) otherwise use the Stealth Rocket Service in any manner that
exceeds the scope of use permitted under Section 2.
5. FEES, PAYMENT AND SUSPENSION OF SERVICES. Subscriber will pay Stealth Rocket
the fees for the Stealth Rocket Service as set forth on the applicable Order
Form, if any (“Fees”). Unless otherwise stated in the Order Form, all Fees
are due within thirty (30) days of the date of receipt of Stealth Rocket’s
invoice thereof. In the event Subscriber exceeds number of transactions for
which applicable Fees have been paid, Subscriber will be invoiced for such
overage in accordance with the overage fees set forth in the Order Form in
arrears. Unless otherwise stated in an applicable Order Form, all subscription
fees will be invoiced and payable in advance on a monthly basis, and any overage
fees incurred for any prior month will be invoiced the following month. Subscriber
may switch to a higher subscription tier at any point during the applicable
Order upon payment of the additional Fees on a prorated basis. All Fees owed
by Subscriber in connection with this Agreement are exclusive of, and Subscriber
shall pay, all sales, use, excise and other taxes and applicable export and
import fees, customs duties and similar charges that may be levied upon Subscriber
in connection with this Agreement, except for employment taxes and taxes based
on Stealth Rocket’s income. If Subscriber believes that Stealth Rocket has
incorrectly billed Subscriber, Subscriber must notify Stealth Rocket no later
than sixty (60) days after the due date on the first invoice in which the issue
appeared. Stealth Rocket may increase the applicable Fees upon the commencement
of any Renewal Order Term (as defined below) by an amount equal to the increase
of the Consumer Price Index plus three percent (3%) upon at least forty five
days written notice prior to the commencement of such Renewal Order Term. Stealth
Rocket reserves the right (in addition to any other rights or remedies Stealth
Rocket may have) to discontinue the Stealth Rocket Service and suspend Subscriber’s
access to the Stealth Rocket Service if any Fees set forth in the applicable
Order Form are more than thirty (30) days overdue until such amounts are paid
in full. Subscriber shall maintain complete, accurate and up-to-date Subscriber
billing and contact information.
6. OWNERSHIP AND DATA.
6.1 Stealth Rocket Platform and Technology. Subscriber acknowledges that Stealth
Rocket retains all right, title and interest in and to the Stealth Rocket Platform,
including all algorithms and improvements thereto, Integration Tools and all
software and all Stealth Rocket proprietary information and technology used
by Stealth Rocket or provided to Subscriber in connection with the Stealth
Rocket Service (the “Stealth Rocket Technology”), and that the Stealth Rocket
Technology is protected by intellectual property rights owned by or licensed
to Stealth Rocket. Other than as expressly set forth in this Agreement, no
license or other rights in the Stealth Rocket Technology are granted to the
Subscriber.
6.2 Subscriber Data. Subscriber retains all right, title and interest in and
to the Subscriber Data. Subscriber hereby grants to Stealth Rocket a non-exclusive,
worldwide, royalty-free and fully paid-up license to access and use Subscriber
Data to provide the Stealth Rocket Service to Subscriber. Subscriber represents
and warrants that it has all necessary rights to grant Stealth Rocket the foregoing
licenses. 6.3 Performance Data. Stealth Rocket retains all right, title and
interest in and to the Performance Data, and may use Performance Data for any
lawful purpose.
6.5 Storage. Unless expressly set forth in an Order Form, Stealth Rocket has no obligation to store any Subscriber Data, and Subscriber is solely responsible for making appropriate backups of the Subscriber Data. Subscriber agrees that Stealth Rocket retains the right to create reasonable limits on Subscriber’s use and storage of Subscriber Data on the Stealth Rocket Service, such as limits on file size, storage space, processing capacity and similar limits described on an Order Form and as otherwise determined by Stealth Rocket in its sole discretion.
7. TERM AND TERMINATION.
7.1 Term. The term of this Agreement will commence on the Effective Date and continue until all Order Forms have expired, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). Unless otherwise set forth in an Order Form, each Order Form will have an initial term of one (1) year (the “Initial Order Term”), and will automatically renew for successive one (1) year terms (each, a “Renewal Order Term” and collectively with the Initial Order Term, the “Order Term”), unless either party provides no less than thirty (30) days written notice of its intent to terminate the Order prior to the end of the then-current term.
7.2 Termination. Either party may terminate this Agreement upon written notice if: (i) the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach; or (ii) the other party is declared insolvent, admits its inability to pay its debts when due, or files for, or otherwise undergoes, bankruptcy. Notwithstanding the foregoing, either party may terminate this Agreement upon written notice to the other party during a Beta Test. Upon the expiration or termination of this Agreement for any reason any amounts owed to Stealth Rocket under this Agreement will become immediately due and payable. Stealth Rocket agrees that upon request, Stealth Rocket will remove all Subscriber Data from the Stealth Rocket Platform and following termination or expiration of this Agreement, all Subscriber access to the Stealth Rocket Service will cease. Sections 1, and 5-12 will survive the termination of this Agreement.
8. DISCLAIMER.
8.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE STEALTH ROCKET> SERVICE, STEALTH ROCKET PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) STEALTH ROCKET AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2 CONNECTED ACCOUNTS. Subscriber acknowledges that Stealth Rocket has no control over, or other ability or obligation with respect to the maintenance, upkeep, status or support of any Connected Accounts or other component thereof, including the accuracy, timeliness, reliability, or completeness of any Connected Account Data. Stealth Rocket will have no liability with respect to any acts, omissions, reliance, delays, errors or other liabilities arising from or related to any downtime, unavailability, inaccuracies or failures of any Connected Accounts.
8.3 BETA ACCESS. In the event Subscriber’s access to the Stealth Rocket Service is pursuant to a Beta Test, Subscriber acknowledges and agrees that Stealth Rocket has no obligation to provide Subscriber with any further access to the Stealth Rocket Service following the expiration or termination of the Beta Test, and in the event such access is given, Stealth Rocket has no obligation to offer the Stealth Rocket Service to Subscriber on any discounted pricing or other special terms. Additionally, Subscriber acknowledges that any research or development performed, or business plans made, by Subscriber regarding or in reliance of any services provided during a Beta Test are done entirely at Subscriber’s own risk.
9. INDEMNITY. If any action is instituted or claim is brought by a third party against Stealth Rocket relating to (a) Subscriber’s breach or alleged breach of Section 2, or (b) Subscriber’s use of the Stealth Rocket Service in violation of any applicable laws, rules or regulations, Subscriber will defend such action at its own expense on behalf of Stealth Rocket and shall pay all damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) attributable to such claim which are incurred by Stealth Rocket or paid in settlement of such claim. 10. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL STEALTH ROCKET BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT SHALL STEALTH ROCKET’ AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE GREATER OF: (A) THE AMOUNT OF FEES ACTUALLY RECEIVED BY STEALTH ROCKET FROM SUBSCRIBER PURSUANT TO THE APPLICABLE ORDER FORM OR STATEMENT OF WORK DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM, OR (B) $50. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.
11. PUBLICITY.
Subscriber acknowledges and agrees that Stealth Rocket may identify Subscriber as a customer of the Stealth Rocket Service on Stealth Rocket’s website and marketing materials. Subscriber agrees to, upon Stealth Rocket’s request, to participate in the creation of a joint press release and/or white paper related to Subscriber’s use of, and experience with, the Stealth Rocket Service. Prior to any publication of any such press release or white paper, Stealth Rocket will submit such content to Subscriber in order to enable Subscriber to verify the accuracy thereof and ensure that no Subscriber Confidential Information is contained therein; provided, that, in the event Subscriber does not provide any objection thereto within fourteen days of Stealth Rocket’s submission, the content of the press release and/or white paper will be deemed accepted.
12. GENERAL PROVISIONS.
Subscriber party may not assign any rights or obligations arising under this Agreement, without the prior written consent of Stealth Rocket. Stealth Rocket may assign this Agreement without consent of Subscriber in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subscriber agrees that Stealth Rocket may subcontract certain aspects of the Stealth Rocket Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Stealth Rocket of any of its obligations hereunder. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado, without regard to its conflicts of laws principles. Any notice under this Agreement must be given in writing to the other party at the address set forth above. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, or (b) sent by recognized courier service. This Agreement and the exhibits attached hereto (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.