Welcome, and thank you for your interest in Fuelcomm Inc., d.b.a. Stackline (“Stackline,” “we,” or “us”) and our website at www.stackline.com, along with our related websites, networks, hosted software applications, and professional and other services provided by us (collectively, our “Service”). These Terms of Service are a legally binding contract between you and Stackline regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CLIENT” OR “YOU”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CLIENT AND ITS AFFILIATES TO THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”). IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY PRODUCT OR RECEIVE ANY PROFESSIONAL SERVICES.
1. Stackline Service Overview; Order Form. The Stackline Service measures internet trends and helps clients optimize e-commerce marketing performance. These Terms set forth the terms and conditions for all Services that are: (a) expressly identified in a written Order Form issued to you by Stackline (“Order Form”); or (b) selected by you on Stackline’s ordering webpage. Each Order Form is subject to the terms and conditions of these Terms.
2. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about your organization or entity, such as an email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You agree that you will only allow the number of users authorized under your account to access the Service and any related tools, applications, information, and materials provided in connection with the Service. If you have reason to believe that your account is no longer secure, then you must immediately notify us at firstname.lastname@example.org.
3. Payment. 3.1 Invoicing & Payment. You agree to pay the fees for the Service set forth in the Order Form or otherwise as shown on the ordering webpage. Fees for the Service will be invoiced as specified in the Order Form and otherwise in accordance with the terms set forth on the ordering webpage. All payments made under these Terms shall be in United States dollars.3.2 Overdue Payments. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Company may suspend the Services if any fee is not paid when due.3.3 Taxes. Unless otherwise stated, Stackline's stated fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). You are responsible for paying all Taxes, excluding only taxes based on Stackline's income. If Stackline has the legal obligation to pay or collect Taxes for which you are responsible under this section, you will be invoiced and agree to pay the appropriate amount unless you provide Stackline with a valid tax exemption certificate authorized by the appropriate taxing authority.3.4 Billing and Contact Information. You agree to maintain complete and accurate billing and contact information on the Service at all times.
4. Product License and Use Restrictions.4.1 License. Subject to these Terms, including payment of all amounts due in accordance with these Terms and any Order Form, Stackline grants you a limited, non-transferable, non-sublicensable right to access and use the Service identified in the Order Form or selected by you on the ordering web page solely: (a) for the term set forth in the Order Form or on the ordering web page; and (b) in accordance with all applicable documentation and the restrictions set forth in these Terms (including the applicable Order Form).4.2 Additional Features. You acknowledge that not all of the features or functionality of a Service may be available at your subscription level irrespective of whether such feature or functionality is described in the documentation for that Service, and that access to such features or functionality may require payment of additional fees or the purchase of additional licenses.4.3 Evaluation Versions. If an Order Form indicates that you will receive access to a Service for evaluation or trial purposes, then you may use the Service for the purpose of evaluating the functionality and performance of the Service, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order Form. You acknowledge that evaluation or trial versions of the Service may be automatically disabled upon expiration of the trial period designated in the Order Form, and that any data stored in the Service may become unavailable at that time. 4.4 Ownership; Proprietary Rights. The Service is owned and operated by Stackline. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Stackline are protected by intellectual property and other laws. All Materials included in the Service are the property of Stackline. Except as expressly authorized by Stackline, you may not make use of the Materials. Any unauthorized reproduction, publication, further distribution, or public exhibition of the Materials is strictly prohibited. Stackline reserves all rights to the Materials not granted expressly in these Terms. Stackline retains all right, title and interest in and to the Services, including all modifications, improvements, upgrades, and derivative works related thereto and all intellectual property rights therein. You agree to, and do hereby, assign all right, title, and interest you may have in the foregoing to Stackline. Except for the express rights granted in these Terms or any Order Form, Stackline does not grant any other rights, whether express or implied, to the Services or any other Stackline products, services, data, materials or intellectual property rights.4.5 Use Restrictions. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by these Terms or any Order Form) to use the Service; (b) use the Service to provide services to third parties (e.g., as a service bureau); (c) use the Service for any benchmarking activity or in connection with the development of a competitive product; (d) circumvent or disable any security or other technological features or measures of the Service or use the Service in a manner that Stackline reasonably believes poses a threat to the security of Stackline-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Service; or (f) use or access any Service in a manner that materially impacts or burdens Stackline or Stackline’s servers and other computer systems, or that interferes with Stackline’s ability to make available any product or service to any third party.4.6 Protection Against Unauthorized Use. You will prevent any unauthorized use of the Service and will immediately notify Stackline in writing of any unauthorized use of which you become aware. You will immediately terminate any unauthorized use by persons having access to the Service through you.
5. User Content 5.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, images, photos, folders, data, text, information about your products and services, and other types of works, or may permit Stackline to collect, via the Service, content through your accounts on third party platforms or otherwise collect information on your behalf (“User Content”). 5.2 License Grant to Stackline. You acknowledge that, by using the Service and providing access to your account on a third-party platform, Stackline will have access to and will collect User Content from those accounts on third party platforms. By uploading or otherwise providing Stackline access to User Content, you grant Stackline a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed. You waive any rights you may have regarding the User Content being altered or manipulated in any way that may be objectionable to you.5.3 User Content Representations and Warranties. You are solely responsible for User Content that is: (a) directly uploaded by you; or (b) collected by the Service through your accounts on third party platforms, and all consequences of providing the User Content to Stackline. By providing User Content on or to the Service, you affirm, represent, and warrant that: a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Stackline to use and distribute your User Content as necessary to provide you the Service in a manner contemplated by these Terms;b. you have all rights, consents, and permissions to provide Stackline access to your accounts on those third party platforms, and Stackline access and collection of User Content from your accounts will not violate the terms of any agreements you may have with the third party platform providers or any other third party;c. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Stackline to violate any law or regulation.5.4 User Content Disclaimer. Stackline will not be in any way responsible or liable for User Content. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Stackline with respect to User Content. 5.5 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Stackline an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
6. Professional Services6.1 Provision of Professional Services. Subject to the terms and conditions of these Terms, Stackline will use commercially reasonable efforts to provide the implementation, installation, configuration, customization, or other professional services expressly identified on an Order Form (the “Professional Services”). 6.2 Deliverables. Stackline retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials or deliverables created by Stackline in connection with its performance of Professional Services (“Deliverables”). If Stackline provides any Deliverables to you pursuant to the applicable Order Form, Stackline hereby grants to you a non-exclusive, royalty-free, fully paid up, worldwide license under Stackline’s rights in the Deliverables to use and exploit such Deliverables solely in connection with the Service and Professional Services during the term of your subscription to the Service or Professional Service, as applicable.6.3 Client Responsibilities. You will make available in a timely manner at no charge to Stackline all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and resources of you required by Stackline for the performance of the Professional Services. You are responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information. You will provide, at no charge to Stackline, office space, services, and equipment as Stackline reasonably requires to perform the Professional Services.
7. Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO: 7.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law;7.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right; 7.3 interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law; 7.4 use a robot, spider, or any similar device to copy or catalog any materials or information made available through the Service;7.5 interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;7.6 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth; 7.7 sell or otherwise transfer the access granted under these Terms or any Materials or any right or ability to view, access, or use any Material; or7.8 attempt to do any of the acts described in this Section 7, or assist or permit any person in engaging in any of the acts described in this Section 7.
8. Third-Party Content and Links. The Service may contain content supplied by third parties and links to Internet sites maintained by third parties. Stackline does not, in any respect, control such content or operate such third-party sites. Third party content and links are included solely for the convenience of users, and do not constitute any endorsement by Stackline or its suppliers. Stackline is not responsible for the accuracy or reliability of third party information and you assume sole responsibility for the use of third party information.
9. Attribution. The Service will provide you with data and information related to product and service markets and how specific products and services are being sold online (“Stackline Data”). If you distribute, display or disclose the Stackline Data to any third party or make any other non-internal use of the Stackline Data, you will provide proper attribution to Stackline in a reasonable manner that informs viewers that the Stackline Data was generated by Stackline and provide a link to our website. You will discontinue any public disclosure of the Stackline Data immediately upon request from us. You may not commercially distribute, display or disclose the Stackline Data (e.g. resell the Stackline Data) without Stackline’s prior written consent. All Stackline Data is provided "AS IS", with no guarantee of completeness, accuracy, timeliness, or of the results obtained from the use of the Stackline Data.
10. Termination of Use; Discontinuation and Modification of the Service. 10.1 Termination of Use. You may terminate your account at any time by contacting customer service at email@example.com. If you terminate your account, you remain obligated to pay all outstanding fees, if any, indicated on your Order Form. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Stackline may in its sole discretion terminate your user account on the Service or suspend or terminate your access to the Service at any time for any reason or no reason, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. If we terminate your account other than for your violation of these Terms, and you have pre-paid for a year-long subscription, we will provide you a pro-rated refund of any unused portion of the subscription fees within 30 days of the termination.10.2 Termination for Material Breach. You may terminate your Order Form if Stackline does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from you. Termination in accordance with this Section 10 will take effect when Stackline receives written notice of termination from you, which notice must not be delivered until Stackline has failed to cure its material breach during the 30-day cure period. If you fail to timely pay any fees, Stackline may, without limitation to any of its other rights or remedies, suspend performance of the Service until it receives all amounts due.
11. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”), such as end-user license agreements for any downloadable software applications, or rules that apply to a particular feature or content on the Service, subject to Section 12. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
12. Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13. Confidentiality.13.1 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. Confidential Information of each Party shall include the terms and conditions of any Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information 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.13.2 Protection of Confidential Information. The Receiving Party shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any Confidential Information revealed to it by the Disclosing Party, except as expressly otherwise provided in these Terms or any Order Form. The Receiving Party shall take every reasonable precaution to protect the confidentiality of Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
14. Intellectual Property Infringement.14.1 Defense of Infringement Claims. Stackline will, at its expense, either defend you from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against you alleging that your use of the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of your Order Form; provided that you (a) give Stackline prompt written notice of the Claim; (b) grant Stackline sole and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as Stackline may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Services). You will not defend or settle any Claim without Stackline’s prior written consent. You will have the right to participate in the defense of the Claim at your own expense and with counsel of your own choosing, but Stackline will have sole control over the defense and settlement of the Claim.14.2 Indemnification of Infringement Claims. Stackline will indemnify you from and pay (a) all damages, costs, and attorneys’ fees finally awarded against you in any Claim under Section 14.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by you in connection with the defense of a Claim under Section 14.1 (other than attorneys’ fees and costs incurred without Stackline’s consent after Stackline has accepted defense of the Claim); and, (c) all amounts that Stackline agrees to pay to any third party to settle any Claim under Section 188.8.131.52 Exclusions from Obligations. Stackline will have no obligation under this Section 14 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Service in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Services are made to comply with designs, requirements, or specifications required by or provided by you, including pursuant to an Order Form, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Service by you for purposes not intended or outside the scope of the license granted to you; (d) your failure to use the Service in accordance with instructions provided by Stackline, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Service not made or authorized in writing by Stackline where such infringement or misappropriation would not have occurred absent such modification.14.4 Limited Remedy. This Section 14 states Stackline’s sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Service.
15. Technical Support. Subject to your continued payment of all fees, Stackline will provide you with its standard technical support for the Service during Stackline’s regular business hours.
16. Assignability. Neither party may assign its right, duties, or obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Stackline may assign this agreement to an affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this agreement relates. A Change of Control shall be deemed to cause an assignment of this agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
17. Use of Brand Name. Stackline may use your name, brand, or logo solely for the purpose of identifying you as a licensee or client of Stackline in a ‘client’ section of Stackline’s website, brochures, or other promotional materials, or as part of a list of Stackline’s clients in a press release or other public relations materials. Any such limited use by Stackline shall include proper attribution to you or the parent company of any trademark or logo of you or the parent company, and shall in no way suggest that Stackline is affiliated with, or speaking on behalf of, you or the parent company. Any other press releases or marketing materials referring to the trademarks or logos of you shall require mutual approval in writing prior to public dissemination.
18. Indemnity. You are responsible for your use of the Service, and you will defend and indemnify Stackline and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Stackline Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
19. Disclaimers; No Warranties
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE STACKLINE ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE STACKLINE ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. THE STACKLINE ENTITITES DISCLAIM ANY WARRANTY OF CUSTOMER SATISFACTION RELATING TO THE USE OF ANY SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE STACKLINE ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
20. Limitation of Liability
IN NO EVENT WILL THE STACKLINE ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY STACKLINE ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. IN PARTICULAR, STACKLINE IS NOT LIABLE TO YOU FOR ANY ERRORS MADE BY YOU, YOUR EMPLOYEES, AGENTS, OR REPRESENTATIVES IN USING THE SERVICE, INCLUDING WITHOUT LIMITATION ANY ERROR MADE IN ENTERING A MARKETING BUDGET ON THE SERVICE, OR ANY DIRECT OR INDIRECT CONSEQUENCES OF SUCH ERRORS.THE AGGREGATE LIABILITY OF THE STACKLINE ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO STACKLINE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM; OR (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21. Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, then you and Stackline agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating any dispute. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
22. General. These Terms, together with any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Stackline regarding your use of the Service. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect. Upon termination of these Terms, Sections 3, 4.4, 5, 6.2, 9, 10, and 18 through 28, along with any other accompanying agreements, will survive.
23. Relationship. Stackline will be and act as an independent contractor (and not as the agent or representative of Client) in the performance of the Service.
24. Subcontractors. Stackline may utilize a subcontractor or other third party to perform its duties under these Terms and any Order Form so long as Stackline remains responsible for all of its obligations under these Terms and any Order Form.
25. Notices. Any notices or communications required or permitted to be given by these Terms or any Order Form must be (i) given in writing and (ii) personally delivered or mailed, by prepaid, certified mail or overnight courier, or transmitted by facsimile or electronic mail transmission (including PDF), to the party to whom such notice or communication is directed, to the mailing address or regularly-monitored electronic mail address as indicated on the Order Form. Any such notice or communication shall be deemed to have been given on (i) the day such notice or communication is personally delivered, (ii) three (3) days after such notice or communication is mailed by prepaid certified or registered mail, (iii) one (1) working day after such notice or communication is sent by overnight courier, or (iv) the day such notice or communication is faxed or sent electronically, provided that the sender has received a confirmation of such fax or electronic transmission. A party may, for purposes of these Terms, change his, her or its address, fax number, email address or the person to whom a notice or other communication is marked to the attention of, by giving notice of such change to the other party pursuant to this Section 25.
26. Force Majeure. Stackline will have no liability for, or be considered to be in default under these Terms or any Order Form on account of, any delay or failure to perform as a result of any cause or condition beyond its reasonable control, including without limit any fire, explosion, power blackout, earthquake, flood, severe storm, acts of God, strike, embargo, labor disputes, act of war, terrorism, or acts of regulatory or governmental agencies. (“Force Majeure”).
27. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us through the e-mail address listed in your user account.
28. Contact Information. The Service is offered by Fuelcomm Inc., d.b.a. Stackline, located at 1730 Minor Avenue, Suite 1400, Seattle, WA, 98101. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.