Stairwell Terms of Service

Effective March 19, 2024

STAIRWELL, INC. (“STAIRWELL”) AGREES TO PROVIDE YOU WITH THE SOFTWARE AND/OR SERVICES, AS APPLICABLE (“SERVICES”) DESCRIBED IN YOUR ORDER (“ORDER”), SUBJECT TO THESE STAIRWELL TERMS OF SERVICE (THE “TERMS”). THESE TERMS (TOGETHER WITH THE ORDER AND ANY TERMS INCORPORATED BY REFERENCE, THE “AGREEMENT”) ARE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND STAIRWELL AND GOVERN YOUR USE OF THE SERVICES. IF YOU ARE USING THE SERVICES ON BEHALF OF AN ORGANIZATION (“ORGANIZATION”), (I) YOU REPRESENT AND WARRANT THAT YOU ARE ABLE TO AGREE TO AND ACCEPT THESE TERMS ON BEHALF OF THE ORGANIZATION AND (II) AS USED HEREIN, “YOU” REFERS TO BOTH YOU AND YOUR ORGANIZATION.
BY SIGNING AN ORDER OR ISSUING A PURCHASE ORDER FOR SERVICES, CLICKING “I AGREE” OR OTHERWISE MANIFESTING ASSENT TO THESE TERMS, OR ACCESSING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE, YOU ARE NOT AUTHORIZED TO USE THE SERVICES FOR ANY PURPOSE AND YOU MAY NOT INSTALL THE SOFTWARE OR ACCESS THE SERVICES.

One or more Orders will state the software and/or services, as applicable, made available to You by Stairwell (“Services”) as well as any additional relevant details, including, without limitation, price, payment terms, and the period of time for which the Services will be made available to You (“Subscription Term”).

1. Services.
1.1 Use of Services. Subject to the terms of this Agreement, Stairwell grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install (as applicable) and right to access and use the Services solely during the Subscription Term for Your internal information security purposes. Stairwell will use reasonable efforts to provide the Services in accordance with the Service Level Agreement available at http://stairwell.com/service-level-agreement (“SLA”). Notwithstanding anything herein to the contrary, You may permit Your Affiliates (as defined below) to use the Services for their own internal information security purposes subject to the terms of this Agreement, provided that You shall be responsible for Your Affiliates’ and Your User’s compliance with the terms of this Agreement. Any breach of the terms of this Agreement by Users or Affiliates will be deemed to be a breach of this Agreement by You. “Affiliate” means any entity which, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with You, provided that “Affiliates” do not include entities whose relationship exists solely by virtue of an investment made by a private equity or venture capital fund. “Control” for purposes of the foregoing sentence, means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest, or otherwise. “User” means any person who is authorized by You to access or use the Services under Your account including, Your or Your Affiliates’, employees, contractors, or service providers.

1.2 Responsibilities and Restrictions. You shall not (and shall not permit any third party to), directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (f) use the Services to build an application or product that is competitive with or includes features or functionality substantially similar to any Stairwell product or service; (g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (h) bypass any measures Stairwell may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (i) use the Services in a manner that places an unreasonable security risk or burden on the Services, other Customers, or Stairwell; (j) use the Services in a way that violates the rights of any third parties or is otherwise prohibited by law or that would cause You or Stairwell to be out of compliance with applicable laws; or (k) use the Services to distribute malware to third parties or otherwise access or use malware except as explicitly permitted in this Agreement.

1.3 Evaluation Services. If You have been granted access to the Services, or any Stairwell products or services, without charge, whether as part of a proof of concept, early access, evaluation, beta or similar program (“Evaluation Services”), Stairwell will provide Evaluation Services to You, free of charge, until the earlier of (a) the end of the Evaluation Services period granted by Stairwell; (b) the Effective Date in an Order; or (c) termination of the Evaluation Services by Stairwell in its sole discretion. Notwithstanding anything contained in this Agreement, Evaluation Services are provided “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT INDEMNIFICATION, SUPPORT, SERVICE LEVEL COMMITMENT, OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. STAIRWELL’S AGGREGATE LIABILITY FOR DIRECT OR INDIRECT DAMAGES FOR ANY CLAIM ARISING FROM YOUR USE OF THE EVALUATION SERVICES WILL NOT EXCEED $100. YOU WILL BE RESPONSIBLE FOR ANY USE OF THE EVALUATION SERVICES, INCLUDING COMPLIANCE WITH LAWS AND LIABILITY FOR ANY DAMAGES. ANY SERVICES DATA OR SERVICES DERIVED DATA MAY BE PERMANENTLY LOST UPON TERMINATION OF THE EVALUATION SERVICES FOR ANY REASON OTHER THAN EXECUTION OF AN ORDER.

1.4 Terms Applicable to MSSP Users. If You are using the Services as part of your offerings as a managed security services provider, then, in addition to these Terms, the provisions of the Stairwell MSSP Terms available at https://stairwell.com/MSSP-terms apply to You.

2. Data.
2.1 Services Data. “Services Data” means any data or files collected by the Services from Your environment or provided, uploaded, or submitted by You directly to the Services in the course of using the Services. Services Data does not include information provided by You or Your Users solely in connection with creation or administration of Your account. You represent and warrant that You have all rights, consents, and authorizations necessary to permit Stairwell to process the Services Data and for the Services to interact with Your environment, consistent with this Agreement. You acknowledge that the Services are not intended to process personal information or other sensitive data. You shall use reasonable efforts to prevent the inclusion in Services Data of any personal information or other data that may be subject to protections under applicable laws or regulations, including, without limitation, any information relating to an identified or identifiable natural person or household. “Services Derived Data” means any data or files derived or extracted from Services Data or otherwise generated in connection with Stairwell’s provision of the Services, including specifications of anomalies, indicators, configurations, or other conditions that Stairwell is capable of identifying by performing the Services. “Non-Attributable Data” means any data submitted to, collected by, or generated by Stairwell in connection with Your use of the Services that has been aggregated, deidentified, or is otherwise not reasonably capable of being attributed to You.

2.2 Deletion. If stated in an applicable Order, the Services may be subject to limitations on the length of time that Services Data will be stored, and the amount of Services Data that may be stored. Stairwell may delete all Services Data upon termination or expiration of an Order or Evaluation Services that are not renewed or replaced with a new Order for Services. Subject to Stairwell’s ongoing rights under Section 4 of this Agreement, Stairwell will, upon receipt of a written request from you, use reasonable efforts to delete Your Services Data within 90 days after receipt of Your request.

3. Confidentiality and Data Security.
3.1 Confidentiality. Each party acknowledges that, in the course of providing and using the Services and performing its duties under this Agreement, it may obtain or learn confidential information about the other party including the Services, Orders, pricing, each party’s technical and business information that is designated by the disclosing party as confidential or that the receiving party should reasonably know is confidential given the nature of the information and circumstances of disclosure (“Confidential Information”). Each party agrees, for the term of this Agreement and for three (3) years after termination or expiration of this Agreement, to hold the disclosing party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties (other than to Affiliates, employees, contractors, agents, and advisors who are bound by appropriate written obligations of confidentiality) unless unauthorized to do so by the disclosing party and not to use such Confidential Information for any purpose except as expressly permitted in this Agreement. Each receiving party shall employ reasonable measures to protect the disclosing party’s Confidential Information from disclosure, distribution, or use in violation of this section 3.1. Confidential Information does not include any information that (a) is Non-Attributable Data, (b) is or becomes (through no improper action or inaction by the receiving party or any affiliate, agent, consultant or employee of the receiving party) generally available to the public, (c) was in the receiving party’s possession or known by such party without restriction prior to receipt from the disclosing party, (d) was rightfully disclosed to the receiving party by a third party without restriction, or (e) was independently developed without use of or reference to any Confidential Information of the disclosing party. The receiving party may make disclosures of the disclosing party’s Confidential Information where required by law or court order provided the receiving party, where permitted by law, uses diligent reasonable efforts to notify the disclosing party and to obtain confidential treatment or a protective order. Notwithstanding the foregoing, nothing in this Agreement shall preclude Stairwell from using any general information, ideas, concepts, know-how, techniques, programming routines and subroutines, methodologies, processes, skills, or expertise (collectively, “Residual Information”) which Stairwell’s employees retain in their memory and derive from the provision of the Services hereunder, and which are no more than skillful variations of general processes known to the computer data processing or information technology industries (and, as such, are neither proprietary, confidential, nor trade secret information); provided, however, that Stairwell does not breach its confidentiality obligations hereunder.

3.2 Data Security. Stairwell will implement and maintain appropriate technical and organizational security measures designed to protect the confidentiality, integrity, and security of the Services and Services Data. You are responsible for ensuring that the Services and its security is appropriate for Your Services Data and Your intended use of the Services. You shall use reasonable efforts to prevent any unauthorized access to Your User accounts or Services Data. You shall bear responsibility for all activity occurring under Your User accounts for the Services. If You believe Your account has been compromised, You must notify Stairwell as soon as possible.

3.3 Sandbox Detonations. The Services may include functionality that permits You to run or execute (“Detonate”) files in a sandbox environment or virtual machine that has been set up and made available to You explicitly for the purpose of observing a file’s behaviors upon Detonation (“Sandbox”). Stairwell may also Detonate Your Services Data in a Sandbox on Your behalf in connection with providing the Services to You. You acknowledge that a Sandbox is an inherently insecure environment that is unpatched, unencrypted, and connected to the Internet and that such insecure characteristics are necessary for the Sandbox to serve as a valuable tool for detecting, testing, and observing malicious behavior in malware. Notwithstanding anything herein to the contrary, Stairwell makes no representations, warranties, or guarantees about the security or confidentiality of any Services Data Detonated in the Sandbox and You agree to hold Stairwell harmless for any actions, consequences, or results arising in connection with Detonation of Your Services Data in the Sandbox.

4. Ownership.
4.1 Stairwell’s Ownership. As between the parties, Stairwell and Stairwell’s licensors retain all right, title, and interest in and to (a) the Services and all software, products, works, processes and methods, data, information, templates, forms, documentation, and other intellectual property and moral rights related thereto or created, used, produced, or provided by Stairwell in connection with the Services (all of which are deemed a part of the “Services” and subject to the terms of this Agreement) and (b) Non-Attributable Data, Services Derived Data, and data collected about Your use of the Services, including any copies, modifications, improvements, enhancements, and derivative works of the foregoing in (a) or (b). No rights or licenses are granted by Stairwell except as expressly and unambiguously set forth in this this Agreement.

4.2 Feedback. You shall, and hereby do, assign to Stairwell your entire right, title, and interest (including, without limitation, all patent rights, design rights, copyrights and trade secrets) in any modifications, improvements, suggestions, comments, usability, bug reports, testing results, or other feedback to Stairwell with respect to the Services (“Feedback”). Stairwell may use and otherwise exploit the Feedback as it wishes with no compensation to You. In the event that any of Your rights with respect to any Feedback is not fully assignable or otherwise transferable to Stairwell for any reason whatsoever, You hereby grant to Stairwell a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback.

4.3 Customer’s Ownership. Subject to Sections 4.1 and 4.2, Customer and its licensors retain all right, title, and interest in and to the Services Data. You grant Stairwell (a) a license to use, reproduce, display, distribute, modify, and create derivative works of the Services Data for any purpose related to providing the Services to You and other customers, conducting research, and developing and improving Stairwell products and services, and (b) a perpetual license to use, reproduce, display, distribute, modify, disclose, and create derivative works of any Services Data that is determined by Stairwell to be malicious or specifically designed to disrupt, damage, or gain unauthorized access to a computer, server, or network for any purpose related to Stairwell’s business, including, without limitation, providing the Services to You and other customers, conducting research, and developing and improving Stairwell products and services.

4.4 Sharing Services Data. The Services may permit You to share Your Services Data with other Stairwell customers, either directly or through an environment that is available to or shared among multiple Stairwell customers. Any rights or restrictions that You desire to impose on a recipient’s use of the Services Data must be agreed directly between You and the recipient. You acknowledge and agree that Stairwell is not liable or responsible for any use, misuse, or disclosure of Your shared Services Data by a recipient.

5. Fees and Taxes. You shall pay Stairwell all fees set forth in the applicable Order (“Fees”). If not otherwise specified in the Order, all Fees, except those subject to a good faith dispute, will be due within 30 days of the date of invoice. Except as otherwise explicitly set forth in this Agreement, all Fees are non-refundable and non-cancellable. If You, in good faith, dispute any Fees, You must provide Stairwell with written notice of that dispute within 30 days of the date of the applicable invoice. The notice must specify the basis for the dispute. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (“Taxes”). You are responsible for paying all Taxes associated with transactions contemplated under this Agreement (excluding taxes based on Stairwell’s income). Fees are specific to the asset quantity indicated in the Order (“Asset Quantity”). The Asset Quantity refers to the number of assets that You are permitted to onboard to the Services. Once an asset is onboarded, You may continue to monitor that asset for the remaining duration of the Subscription Term. Each asset that is onboarded counts against the Asset Quantity and it is not permitted to “transfer” the Services from one asset to another asset. During the Subscription Term, Stairwell may invoice You for any assets onboarded in excess of the Asset Quantity. You shall pay such invoice in accordance with the terms of this Agreement.

6. Term and Termination.
6.1 Term. This Agreement becomes effective on the Effective Date of an applicable Order and terminates when such Order expires or is otherwise terminated in accordance with the terms of this Agreement.

6.2 Termination. Either party may terminate the Agreement or any Order by written notice to the other party in the event that the other party materially breaches the Agreement and does not cure such breach within 30 days of receipt of notice of the material breach.

6.3 Effect of Termination. In the event of termination by You for Stairwell’s material breach, Stairwell will promptly refund You a pro-rata portion of any prepaid Fees applicable to the time remaining on the then-current Subscription Term after the effective date of termination. In the event of termination by Stairwell for Your material breach, all as-yet unpaid Fees for the then-current Subscription Term will become immediately due and payable. Upon termination of this Agreement, (a) all rights and subscriptions granted to You and all Orders will immediately terminate, (b) You will cease accessing or using the Services, and (c) You shall promptly uninstall any software components of the Services, and (d) You shall promptly delete all data obtained by You from the Services, including Services Derived Data. The following sections will survive termination: Section 1.3 (Evaluation Services); Section 2 (Data), Section 3 (Confidentiality and Data Security), Section 4 (Ownership), Section 5 (Fees and Taxes); Section 6.3 (Effect of Termination), 7.2 (Warranty Disclaimer); Section 8 (Indemnification); Section 9 (Limitation of Remedies and Damages), and Section 10 (General).

6.4 Suspension. Stairwell may suspend Your access to the Services (a) immediately if Stairwell reasonably suspects (i) that You are in breach of Section 1.2 (Responsibilities and Restrictions) or 2.1 (Services Data) (ii) that Your use of the Services poses a security risk or threat to the function of the Services, to other Stairwell customers, or to Stairwell’s hosting services provider, or (iii) fraud or abuse related to Your use of the Services; or (b) upon 10 days’ prior written notice if You are otherwise in breach of the Agreement. Stairwell will give You reasonable notice before suspending Your use of the Services if permitted by law or unless Stairwell reasonably determines that providing notice presents a risk of harm, in which case Stairwell will notify You as soon as feasible or permitted by law. Unless this Agreement expires or is terminated in accordance with Section 6.2, Stairwell shall restore access promptly upon its reasonable satisfaction that the cause for suspension has been resolved.

7. Warranty, Disclaimer, and Remedy.
7.1 Warranty. Each party warrants it has the legal power to enter into this Agreement. Stairwell warrants that the Services, when used in accordance with the Agreement, will perform materially in accordance with the descriptions set forth in the Order. Stairwell may from time to time make modifications to the Services, provided that such changes will not have a material, detrimental impact on Your use of the Services during the Subscription Term.

7.2 Warranty Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND STAIRWELL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. STAIRWELL DOES NOT WARRANT THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION, OR WILL BE FREE OF DEFECTS, OR WILL DETECT OR PREVENT ALL INTRUSIONS, VULNERABILITIES TO INTRUSION OR ATTACK, UNAUTHORIZED ACTIVITY, ERRORS, DATA THEFT, OR DESTRUCTION. THE SERVICES DO NOT PROVIDE A GUARANTEE OR WARRANTY OF PROTECTION, DETECTION, OR ACCURATE ANALYSIS OF SECURITY THREATS, AS NO THREAT DETECTION IS FAIL SAFE. STAIRWELL IS NOT RESPONSIBLE FOR TAKING ANY ACTIONS IN YOUR ENVIRONMENT, INCLUDING WITHOUT LIMITATION, INCIDENT CONTAINMENT, REMEDIATION, AND RESPONSE TO ALERTS AND DATA PROVIDED BY THE SERVICES.

7.3 Remedy. Customer shall promptly notify Stairwell in writing of any breach of the warranty in Section 7.1. As Customer’s sole remedy and Stairwell’s sole obligation for any breach of the warranties provided herein, Stairwell shall, at its expense, (a) correct any breach of the warranty; or (b) if Stairwell determines in its sole discretion that it is not commercially feasible to correct a breach of the warranty within a reasonable period of time, terminate this Agreement or any applicable Order and promptly refund to Customer the pro-rata portion of any prepaid Fees applicable to the time remaining on the then-current Subscription Term after the effective date of termination.

8. Indemnification.
8.1 Stairwell Indemnification. Stairwell will defend You from any claim, demand, assessment, action, suit, or proceeding brought by a third party (“Claim”) against You arising out of Your use of the Services as permitted hereunder alleging that such Services infringe or misappropriate such third party’s valid patent, copyright, trademark or trade secret (“Infringement Claim”). Stairwell will, at its expense, defend an Infringement Claim and pay any damages finally awarded against You by a court of competent jurisdiction or paid to a third party in accordance with an agreement to settle an Infringement Claim. If Your use of the Services becomes, or if Stairwell reasonably believes that it may become, the subject of an Infringement Claim, Stairwell may, at its option and expense, (a) procure for You the right to continue using the Services; (b) replace or modify the Services to make it non-infringing; or terminate any or all applicable Orders and refund You the pro-rata portion of any prepaid Fees applicable to the time remaining on the then-current Subscription Term after the effective date of termination. Stairwell will not defend or indemnify You to the extent a claim arises from (x) Your or Your Users’, non-compliance with the terms of this Agreement, (y) any modification of the Services not authorized by Stairwell or Stairwell’s compliance with Your specifications, instructions, or requirements, or (z) the use or combination of the Services with software, hardware, data, or processes not provided by Stairwell. This Section 8.1 states Your sole and exclusive remedy and Stairwell’s entire liability for any Infringement Claim.

8.2 Customer Indemnification. You will defend Stairwell, its employees, officers, directors, and contractors (“Stairwell Indemnitees”) from any third party Claim against Stairwell Indemnitees related to (a) allegations that Stairwell Indemnitees’ use or processing of the Services Data or Services Derived Data in accordance with the terms of this Agreement (i) infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret, (ii) violates any third party’s rights, or (iii) violates any applicable laws; or (b) a security event involving Your environment that does not arise as a result of Stairwell’s breach of this Agreement. You will indemnify Stairwell for all costs, reasonable attorneys’ fees, damages or amounts finally awarded by a court of competent jurisdiction or paid to a third party in accordance with an agreement to settle such Claim(s).

8.3 Indemnity Requirements. The party seeking indemnification (“Indemnitee”) must promptly notify the other party (“Indemnitor”) of any Claim for which indemnity is sought. The Indemnitor will have the sole and exclusive control over the defense, including selection of counsel and defense and/or settlement of the Claim; provided, however, Indemnitor will not settle or compromise any Claim that results in liability or admission of liability by the Indemnitee without Indemnitee’s prior written consent. Indemnitee shall cooperate and provide assistance in defending the Claim as reasonably requested by Indemnitor at Indemnitor’s expense.

9. Limitation of Remedies and Damages. EXCEPT WITH RESPECT TO A PARTY’S BREACH OF SECTION 1.2 (RESPONSIBILITIES AND RESTRICTIONS), SECTION 2.1 (SERVICES DATA), OR SECTION 3 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER AND, IN THE CASE OF STAIRWELL, FOR ANY VIRUSES, TROJAN HORSES, OR OTHER MALWARE THAT CUSTOMER MAY ACCESS AS PART OF THE SERVICES. THE PARTIES AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, STAIRWELL’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO STAIRWELL UNDER AN APPLICABLE ORDER DURING THE 12 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND ANY MODIFICATION OF SUCH PROVISION WOULD SUBSTANTIALLY AFFECT THE FEES CHARGED. NOTHING HEREIN SHALL BE INTERPRETED TO LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER NOR SHALL EITHER PARTY’S LIABILITY BE LIMITED WHERE IT ARISES FROM SUCH PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

10. General.
10.1 Entire Agreement. This Agreement represents the entire agreement between Customer and Stairwell with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications, representations, agreements, and proposals (whether oral, written or electronic) between Customer and Stairwell with respect thereto. Any terms and conditions in any purchase order or other purchasing document issued by Customer (other than an Order), including without limitation, any pre-printed terms and conditions, are rejected and shall be null and void. Stairwell may amend, update, or replace these Terms at any time. Such altered terms of service will be effective upon any renewal of Customer’s Subscription Term.

10.2 Data Processing Addendum. To the extent that Your Services Data includes personal data, the terms of the Data Processing Addendum available at https://stairwell.com/data-processing-addendum (“DPA”) will apply.

10.3 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Santa Clara County, California.

10.4 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received to the contact information provided in the Order, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. A copy of all notices sent to Stairwell should be sent by email to [email protected].

10.5 Publicity. Notwithstanding anything to the contrary in this Agreement, Stairwell may use Customer’s name and logo to identify Customer as a customer of Stairwell, subject to any use guidelines or instructions supplied by Customer to Stairwell in writing.

10.6 Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign this Agreement and all Orders, upon notice and without consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that all Fees have been paid and the assignee agrees to be bound by this Agreement.

10.7 U.S. Government End Users. For U.S. Government end users only, the Services are “Commercial Items” as defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 C.F.R. 12.212. or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4, as applicable, the Services are being licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

10.8 Force Majeure. If performance under this Agreement or an Order is prevented or restricted by reasons beyond the reasonable control of a party (including without limitation, pandemic, war, natural disaster, earthquake, hurricane, riots, acts of God, cloud provider failures or delays, denial of internet service attacks) the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction. Notwithstanding the foregoing, under no circumstances will a party’s obligations to make payments when due under this Agreement be excused, unless such failure is due to unavailability of the Federal Reserve wire system or other failure of the banking system that deprives a party access to otherwise available funds.

10.9 Export/Sanctions Compliance. Customer will not permit any third party to (a) access or use the Services in violation of any export or import law or regulation or in any manner that would cause Stairwell to be in violation of any export or import laws or regulations, or (b) export the Services except in compliance with all applicable laws and regulations. Customer shall not permit the Services to be accessed or used by any individuals or entities on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Table of Denial Orders, Military End User lists, or any person in a country subject to a United States embargo (“Denied Parties”). Customer represents and warrants that Customer, Affiliates, and Users, are not, and will not be, Denied Parties. If Stairwell receives notice that Customer, an Affiliate, or a User is identified as a Denied Party, Customer agrees that Stairwell, at its sole discretion, may immediately suspend the Services or terminate the Agreement.

10.10 Waiver and Severability. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.