TekStack Inc. Terms of Service

Last updated: Jan 1, 2020

These Terms of Service, which include Order Forms, schedules, exhibits, addendums and statements of work (“SOWs”) referred to herein (the “Terms”), create an agreement between the Customer (you) and TekStack Inc. (us) regarding your access to and use of any TekStack software (“Software”) services (“ Services”). All users must agree to these Terms before using the Software and Services.

You are agreeing to these Terms on behalf of a company and represent that You have the authority to bind that entity and its affiliates, to access and use the Software and receive the Services to these Terms. If You do not agree with the Terms or if You do not have such authority, You must not accept an Order Form (as applicable) and Customer and Users will not be permitted to access, receive and use the Software and Services.

  1. Orders, Fees and Payments
    1. You may from time to time submit orders for Software and Services in an order form (an “Order Form”) and those terms and conditions are incorporated into these Terms by reference. An Order Form and these Terms will be deemed to be accepted by You by: (i) You signing the Order Form; or (ii) You (or an User) registering for an account to access or use the Software; or (iii) You (or an User) otherwise access or use the Software (the “Order Effective Date”).
    2. You will pay Us all fees as set out in an Order Form (the “Fees”). Fees for Software are payable regardless of Your actual usage of the Software.
    3. You will be responsible for all applicable taxes or other charges imposed by any governmental authority, relating to: (i) Us providing; or (ii) Your access, receipt and use of the Software and Services. If We are obligated to collect or pay taxes for which You are responsible, You will pay Us the appropriate amount unless You provide Us with a valid tax exemption certificate. We reserve the right to gross up the Fees for the Software and Services in an invoice if a withholding prevents Us from receiving the actual amount specified in an invoice.
    4. Any out-of-pocket expenses pre-approved by You and incurred by Us in compliance with Our Travel Policy (which can be found at com/legal(“Legal Page”) and which are incorporated herein by reference) while performing Services will be charged to and payable by You.
    5. As You will have access to and use of the Software as of the Order Effective Date, all invoices are due within thirty (30) days of Your receipt. In all instances, if You do not pay Us on time, We may, after notifying You and waiting for a reasonable period of time, suspend Your access to and use of Software and/or the receipt of Services for non-payment.
  2. Term and Termination
    1. These Terms begin to apply on the Order Effective Date and cease at the end of the initial subscription term set out in the Order Form (the “Initial Subscription Term”). At the end of the Subscription Term, these Terms will automatically renew for period of time equal to the Initial Subscription Term (a “Renewal Term”, and together with the Initial Subscription Term, the “Subscription Term”), unless You notify Us in writing at least thirty (30) days before the end of the Initial Subscription Term or a Renewal Term of Your intention to terminate these Terms. Any such termination will be effective on the last day of the Subscription Term and You will pay for the Software and Services until the end of the Subscription Term, regardless of when You provided notice.
    2. In the event of a breach of these Terms by either party that remains uncured for twenty (20) business days, the non-breaching party may immediately terminate these Terms.
    3. Upon termination of these Terms for any reason whatsoever, You will pay all Fees owing to Us and We will not refund any Fees that You may have already paid to Us.
    4. Upon Your written request made within thirty (30) days after the termination of these Terms, so long as You have paid Us all outstanding Fees, We will: (i) deliver to You, as applicable, any Customer Data in Our possession or control; or (ii) make available to You for download a file of Customer Data in a generally available format, as determined by Us, acting reasonably. After such thirty-(30-)day period, We will have no obligation to maintain or provide any Customer Data and We will, unless legally prohibited, delete or destroy all Customer Data in Our systems or otherwise in Our possession or under Our control. At Your written request, an officer of TekStack will certify the delivery of and/or deletion or destruction of Customer Data following termination.
  3. Use of the Software
    1. As of the Order Effective Date, We grant You a limited, non-exclusive, non-transferable and non-assignable, worldwide right to access and use (and permit Users to access and use) the Software for Your internal business use during the Subscription Term and only as permitted by these Terms.
    2. Unless otherwise provided in these Terms, You will not: (i) resell, distribute, or use the Software on a timeshare, outsourced, or service bureau basis; (ii) provide access to the Software to a third party (other than to Users of Your legal affiliate or other agents acting on Your behalf); (iii) modify, reproduce, duplicate, deconstruct, reverse engineer the Software or create derivative works of the Software (unless Your Order Form so indicates; and in which case, the creation and use of such derivative works shall be for Your sole benefit); (iv) use the Software to send (1) unsolicited messages (e.g. “spam”); (2) infringing, obscene, threatening, libelous, or otherwise unlawful or tortious materials ; (3)material containing malicious code; or (4) interfere with or disrupt the integrity or performance of the Software or the data contained therein.
    3. Any rights not explicitly granted in these Terms are strictly reserved by Us and You will not use the Software except in the manner as expressly granted herein. We reserve the right to audit, in a reasonable fashion and upon reasonable notice (as necessary), Your usage of the Software to determine Your compliance with these Terms.
    4. For mobile use of the Software, You may need to download and install additional software from Us or a third party mobile “app” store or marketplace in which case these Terms also apply to such additional software and mobile “apps” (in addition to any other terms of such “app” store or marketplace).
    5. Your use of the Software is subject to limits and restrictions as more specifically set out in an Order Form (e.g. number of Users, storage space, bandwidth etc.).
    6. You accept Microsoft’s Customer Agreement as part of the software’s initiation. The current version of the Microsoft Customer Agreement can be viewed at: https://www.microsoft.com/licensing/docs/customeragreement
    7. In the event that We become insolvent during the period of the Subscription Term, You will be provided with indefinite continuation of use of the software subject to Section 3 (b). We will provide You with reasonable access to source documentation, developer contact information, and access to the Software as an unmanaged solution.
  4. Services
    1. We may provide You with Services as set out in an Order Form and a SOW (or a Change Order to a SOW). A SOW may be required for each project, and may specify key parts like scope, responsibility, deliverables, and payment terms.
    2. We may provide the Services remotely or at a location of Your choosing.
    3. Either You or We may request additions, deletions or amendments to the Services in a SOW (“Change”). A Change will be requested in writing signed by an authorized representative of the party requesting the Change (“Change Request”). We will not have an obligation to perform, and You will not have an obligation to pay for, Services related to any Change unless You and We have agreed to the Change in writing. If you request and approve a change, a change order document amending the applicable SOW (a “Change Order”) will be provided.

 

  1. Our responsibilities
    1. We will, in compliance with applicable laws (including privacy and/or data protection laws).
    2. We will not be responsible for any compromise, loss, delay, alteration, or interception of Customer Data during the transmission of any data whatsoever across the Internet or mobile telecommunications networks.
  2. Your responsibilities
    1. In exchange for Us providing You with access to and use of the Software and the Services, You will, in compliance with all applicable laws, and User’s compliance with these terms.
  3. Changes

We may update these Terms from time to time. If You do not agree with the changes You can cancel the Services, stop using the Software without further obligation, except for the payment of amount due for any outstanding Services and terminate these Terms.

  1. We may, at Our discretion, enhance or modify the Software from time to time and We will provide You with reasonable notice of any material modifications at the email address You provide in Your Order Form;
  1. Confidentiality Obligations
    1. Each party may use Confidential Information only for the purposes of these Terms and will not disclose to any third party any Confidential Information, without the prior written consent of the other party. For the purposes of these Terms, “Confidential Information” means all technical, scientific, marketing, business, financial and commercial information or data whether communicated in writing or orally, which is provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) as a consequence of these Terms. The Receiving Party will be liable to the Disclosing Party for any breaches of this by its employees, agents or third party service providers who obtain Confidential Information of the Disclosing Party from the Receiving Party.
  2. Privacy and Data Protection
    1. We will not access Your Customer Data, except: (i) where instructed or permitted by You; or (ii) as required by law or to exercise or protect Our legal rights.
    2. We will collect, use and process Customer Data only in accordance with Your instructions; and to the extent reasonably required to provide the Software and Services.
    3. You agree that We may contact You via e-mail or otherwise with information relevant to Your use of the Services and Your payment obligations.
  3. Customer Data
    1. We make no claim to Your trade names, logos and other trademarks or service marks (“Marks”) and Customer Data and We will not sell Your Customer Data to third parties.
    2. You are solely responsible for Your Customer Data. We are not liable to You, Your Users or Your customers for any loss or damages arising from any Customer Data. “Customer Data” means all visual, written or audible communications, files, data documents, videos, recordings, or any other material displayed, posted, uploaded, stored, exchanged or transmitted on or through Your use of the Software.
    3. You grant Us a world-wide, royalty-free, sub-licensable licence to use, modify, reproduce and distribute the Customer Data, only as reasonably required to provide access to and use of the Software (e.g., We may encrypt Your Customer Data which may involve use, reproduction and modification of Your Customer Data). You warrant that You have sufficient, lawful non-infringing rights to the Customer Data and to grant the license contained in this Section.
  4. Warranty and Warranty Disclaimer
    1. Although We will make Our best effort to deliver functioning Software and an acceptable Service, We do not warrant that the Software, the Services or any content provided will be error free or satisfy all Your requirements. We will use commercially reasonable efforts to correct any error, in a timely fashion, that may be discovered by You or Us.
    2. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 13, TO THE EXTENT ALLOWED BY APPLICABLE LAW, WE (i) EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND (ii) MAKE NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES, ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH THE SERVICES OR THE SITES, OR THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE.
    3. Limitation of Liability
    4. Neither Party will be liable to the other in connection with any single event or series of related events for any punitive, exemplary, special, incidental, indirect or consequential loss or damage including, but not limited to, loss of profits, loss of revenue, failure to realize expected savings, loss of data or other commercial or economic loss of any kind even if either party has been advised of the possibility of these losses or damages, and regardless of the form of action, whether in contract or in tort, or based upon any other legal or equitable theory.
      1. OUR MAXIMUM AGGREGATE LIABILITY TO YOU RELATED TO OR IN CONNECTION WITH THESE TERMS WILL BE LIMITED to the annual fees paid by you to us. THIS FOREGOING LIMITATION OF LIABILITY IS IN THE AGGREGATE AND NOT PER INCIDENT.
      2. THE LIMITATIONS IN SECTIONS 14(a) AND 14(b) DO NOT APPLY TO A BREACH OF SECTION 10, OR IN RELATION TO ANY INDEMNITY OBLIGATION SET FORTH IN THESE TERMS.
      3. You acknowledge that We have set Our Fees and entered into these Terms in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between You and Us.
    5. Ownership and Proprietary Rights
      1. We and Our licensors own all intellectual property rights to the Software, Services and associated documentation. This ownership extends to all copies and portions of these items, and all improvements, enhancements, modifications and derivative works to these items and any work product arising out of the Services. Our ownership does not extend to Your Customer Data or Your Confidential Information. Your rights to use the Software are limited to those rights expressly granted by these Terms. You receive no other rights to the Software, any associated documentation, or Services or any related intellectual property rights in the Software.
      2. You grant to Us a worldwide, royalty-free, non-exclusive, perpetual, irrevocable license to: (i) use or transfer any feedback You give Us in relation to the Software for any purpose; and (ii) use, copy, store and display Customer Data on an aggregated and anonymous basis only for the purposes of improving or developing enhancements to the Software and to offer new products and services that may relate to Your Customer Data.
      3. We may use Your Marks to personalize the Software for Your use. Nothing in these Terms transfers to Us any rights or ownership in or to Your Marks.
    6. Indemnification
      1. We will defend, indemnify and hold You, Users, Your officers, directors and employees (the “Customer Indemnified Parties ”) harmless from and against any and all third party claims, demands, suits, or proceedings (“Claim”) for damages, costs, liabilities, expenses, attorney’s fees, equitable relief or similar relief made or brought against the Customer Indemnified Party by a third party arising out of or relating to the actual or alleged infringement or misappropriation of such third party’s intellectual property rights by Us, by Our provision of the Software or Services, or by Your authorized use of the Software or Services; provided that the Customer Indemnified Party: (i) promptly gives Us written notice of the Claim such that We are not materially prejudiced by the timing of such notice; (ii) gives Us sole control of the defense and settlement of the Claim (provided that We may not settle or defend any Claim unless it releases the Customer Indemnified Party of all liability); and (iii) provides to Us all reasonable assistance, at Our expense. No settlement will require any payment by the Customer Indemnified Party without such Customer Indemnified Party’s written consent. The Customer Indemnified Party may monitor, at its own expense, such defense and any settlement discussions directly or through counsel of its choice.
      2. We will not have any liability for any claim of infringement or misappropriation of a third party’s intellectual property caused by: (i) Your misuse or modification of the Software or any Services; (ii) Your failure to use corrections, enhancements or updates made available to You by Us; or (iii) information, direction, specification, or materials provided by You or any third party on Your behalf.
      3. If the Software or any deliverable item resulting from Our performance of the Services (the “Alleged Infringing Item”) is, or in Our opinion is likely to be, held to constitute an infringement of a valid third-party right pursuant to this Section, We will at Our expense and option either: (i) procure for You the right to continue using the Alleged Infringing Item; (ii) replace the Alleged Infringing Item with a non-infringing equivalent, modify it to make it non-infringing; or (iii) terminate Your access, receipt and/or use of the Alleged Infringing Item and refund to You any pre-paid fees in relation to the Alleged Infringing Item less an amount for Your use of the Alleged Infringing Item up to the time of return. THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR INFRINGEMENT.
      4. You will indemnify, defend and hold Us and Our directors and employees harmless from and against any Claim for damages, costs, liabilities, expenses, attorney’s fees, equitable relief or similar relief made or brought against Us by a third party alleging that the Customer Data that You disclose to Us infringes or misappropriates the rights of a third party or violates applicable law; provided that We: (i) promptly give You written notice of the Claim such that You are not materially prejudiced by the timing of such notice; (ii) give You sole control of the defense and settlement of the Claim (provided that You may not settle or defend any Claim unless it releases the Us of all liability); and (iii) provide to You all reasonable assistance, at Your expense. No settlement will require any payment by Us without such Our written consent. We may monitor, at Our own expense, such defense and any settlement discussions directly or through counsel of Our choice.
  1. General
  1. These Terms will supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation, request for proposal or other document issued by You. This Terms, together with any other documents referenced herein (including for certainty, the Order Form), constitute the entire agreement between the You and Us pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between You and Us. Except as expressly provided in this Agreement, there are no representations, warranties, conditions other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect these Terms.
  2. Your or Our failure to enforce any provision of these Terms will not be construed as a waiver of any provision or right. Waiver by either You or Us of a breach of any provision of these Terms or the failure by either You or Us to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
  3. In the event that a portion of these Terms are held to be unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect.
  4. We may delegate the performance of any or all of Our obligations hereunder to third parties, provided that We will remain liable for performance hereunder. You may not assign these Terms or Your rights and responsibilities hereunder without Our prior written consent unless the assignee is an acquiring party, acquired or merged party, majority owner, a subsidiary or affiliate party including by purchase, merger or operation of law. Subject to the foregoing, these Terms will be binding upon the parties’ respective successors and permitted assigns.
  5. All notices hereunder shall be in writing and shall be deemed to have been given upon the day of personal delivery, the third business day after mailing, or the first business day after sending by email. Notice to Us shall be to: hello@tekstack.com. Notices to You shall be to the mailing and email address You provide in Your Order Form.
  6. You agree that We may refer to You by trade name and marks, and may briefly describe Your business and the nature of these Terms, in Our marketing materials and web site.
  7. The laws of the Province of Ontario (without regard to its conflict of laws provisions) and all laws of Canada applicable in the Province of Ontario will govern these Terms and all matters arising out of or relating to these Terms. Any legal action or proceeding relating to these Terms will be instituted in the courts of the Province of Ontario. However; if You are located in: (i) the United States of America, the laws of the State of Nevada (without regard to its conflict of laws provisions) and any laws of the United States of America applicable in the State of Delaware will govern these Terms and all matters arising out of or relating to these Terms and any legal action or proceeding relating to these Terms will be instituted in the courts of the State of Delaware; or (ii) the United Kingdom, Europe, Asia, the Middle East or Oceania, the laws of England (without regard to its conflict of laws provisions) will govern these Terms and all matters arising out of or relating to these Terms and any legal action or proceeding relating to these Terms will be instituted in the courts of England.
  8. You and We are independent entities. Nothing in these Terms will be construed as creating a partnership, joint venture or agency relationship between You and Us.
  9. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under these Terms due to any cause beyond its reasonable control, including, without limitation, act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, or governmental act, computer attacks or malicious acts, such as attacks on or through the Internet, or attacks against any Internet service provider, telecommunications facility or hosting facility.