Terms & Conditions
1. Scope
1.1. These Terms apply to all Services provided by StackGuardian.
1.2. All functional and operational elements of the Services are described in the corresponding Service Descriptions. Service Descriptions are part of these Terms and may be modified from time to time so as to correctly reflect the then current version of the Services. Customers will be informed of such modifications via their StackGuardian admin section.
1.3. Services will be modified continuously to correct errors and keep it up to date with technological advances, e.g. by adding new functions or changing/deleting existing ones. StackGuardian will inform Customer of such modifications via the Service’s admin section, email or another type of message. In case the modifications under 1.3 are material and unacceptable to Customer, Customer may terminate all Services impacted by that modification. Customer must provide notice to that regard at the latest 90 days after it was informed of the modifications by StackGuardian. No damages are due as a result of modifications or early termination under 1.3.
2. Licence
2.1. StackGuardian grants Customer a non-exclusive licence to use Services for the duration specified in the Order Form, subject to Customer respecting all conditions in these Terms and the Order Forms.
Customer may not distribute or sublicence Services to third parties.
Any restrictions to the licence - e.g. on the number of users allowed for the Service - are detailed in the Order Form or Service Description.
2.2. Customer must ensure that the security and integrity of the Services isn’t affected.
3. Fees, costs and payment
3.1. Applicable fees for Services and Professional Services are included in the Order Form. All prices are exclusive of any taxes or duties. Customer agrees to pay or reimburse StackGuardian for any applicable taxes or duties, such as sales taxes, value added taxes and any other fee that is imposed by a government authority on Customer’s use, license or receipt of Services. Prices will be indexed annually applying the (Belgian) Agoria index for reference wages.
3.2. Costs, such as for transport, accommodation or any other out-of-pocket expenses, may be required to deliver Services and/or Professional Services to the Customer. Such costs will be reimbursed by Customer. If possible, StackGuardian will inform Customer prior to engaging in such costs. Costs under this article 3.2 will be invoiced separately to the Customer.
3.3. Invoices must be paid within 30 days of the invoice date. Unless otherwise agreed, fees related to Services are invoiced for an entire year and in advance.
4. Warranties and indemnities
4.1. StackGuardian warrants that:
Services materially conform to the Documentation
Professional Services materially conform to the Order Form.
This article 4.1 is an obligation of means.
StackGuardian doesn’t warrant that Services will be uninterrupted, error free or can always be accessed.
Professional Services are provided only per Customer’s specifications as defined in the Order Form.
StackGuardian has no responsibility to correct or complete these specifications.StackGuardian doesn’t control third party services. StackGuardian therefore cannot guarantee that the Services can be integrated with third party services or that such an integration works as intended by Customer.
Except for the warranties which are explicitly mentioned in this article 4.1, the Services and Professional Services are provided “as is” without any further guarantee.
4.2. The Services are used on top of services of 3rd party cloud / infrastructure providers. The performance of their offerings is subject exclusively to Customer’s agreement with such cloud provider. StackGuardian isn’t bound by any agreement made between Customer and such cloud provider.
4.3. Customer’s exclusive remedies for a breach of article 4.1 (warranties) are:
- StackGuardian must correct or work around errors in Services and Professional Services as soon as reasonably possible, and
- if corrections or workarounds aren’t possible and the breach is material, Customer may terminate all Services or Professional Services impacted by an error pursuant to article 7.2 (termination).
4.4. StackGuardian must indemnify and defend, at its expense, any action brought against Customer when it is based on a claim that Services infringes any copyright, trade secret, patent or trademark which is valid in the United States, Japan, South Korea or a member of the European Patent Organization.
StackGuardian must pay all damages finally awarded against Customer by a court of competent jurisdiction or agreed in a settlement, provided that indemnified Party gives the indemnifying Party (i) prompt written notice of the claim, (ii) all requested information and reasonable assistance related to the claim, and (iii) sole authority to defend or settle the claim.
Customer may not admit liability or incur obligations on StackGuardian’s behalf without StackGuardian’s prior written consent, which shall not be unreasonably withheld.
StackGuardian has no liability and no obligation to indemnify when the infringement of a third party intellectual property or trade secret is caused by:
- a combination or integration of the Services with any component not supplied by StackGuardian
- a modification of the Services by anyone other than StackGuardian.
5. Intellectual Property
5.1. All intellectual property developed by a Party prior to or independently of these Terms remains the property of that Party.
5.2. StackGuardian may use Analytics Data to provide and improve its services. StackGuardian owns all intellectual property resulting from its use of Analytics Data.
If Customer provides feedback in the course of using or evaluating Services, StackGuardian may freely use such feedback and Customer transfers all intellectual property in such feedback to StackGuardian. StackGuardian owns all intellectual property resulting from StackGuardian’s use of such feedback.
6. Liability
6.1. A Party’s total aggregate liability under these Terms can never be higher than the average amount paid by Customer for all Services over a 12 month period.
The limitation in this article 6.1 doesn’t apply in case of:
- breaches of article 4.3 (indemnities) and 8 (confidentiality)
- death, personal injury, fraud and/or wilful misconduct.
6.2. Indirect damages such as loss of profit, turnover, clients, anticipated savings, reputation and data, as well as any loss or penalty due to business interruption, won’t be compensated.
7. Term and termination
7.1. The term is specified in the corresponding Order Form.
Services will be automatically renewed for the same period specified in the Order Form, unless a Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Services can only be automatically renewed 5 times.
These Terms remain in force as long as all Services haven’t been terminated or expired. The termination or expiration of these Terms will not affect any provisions which by their nature should survive such termination or expiration, such as payment, confidentiality, intellectual property, warranties and indemnities, limitation of liability and the general provisions.
7.2. Services can be terminated in case of:
- a material breach which remains materially uncured for 30 days after receiving notice of an intent to terminate
- a Party’s insolvency or a similar event.
Termination only affects the Services affected by the material breach.
In case of termination for uncured material breach by StackGuardian, StackGuardian will provide Customer a pro-rata refund of all prepaid but unused Services as Customer’s exclusive remedy. No refund will be given for Services provided prior to termination.
8. Confidentiality
8.1 Confidential Information:
- may only be disclosed to those employees, contractors or affiliates of the receiving Party who have a need-to-know and subject to them being bound by obligations at least as restrictive as those in this clause 8,
- may only be used by the receiving Party to perform its obligations under these Terms and
- must be sufficiently protected by the receiving Party so as to prevent unauthorised use or disclosure.
8.2 The obligations in clause 8.1 don’t apply to Confidential Information:
- which is part of the public domain,
- which is disclosed without restrictions to receiving Party by a third party which didn’t breach any confidentiality obligation in doing so,
- which is developed by the receiving Party independent of the other Party’s Confidential Information,
- for uses explicitly allowed pursuant to these Terms.
8.3 This clause 8 will survive the termination of these Terms for 5 years.
At the expiration or termination of these Terms, each Party will return to the other Party or destroy all materials containing or reflecting any of the other Party’s Confidential Information.
9. Data protection and security
9.1. When the Service is used to process personal data, Customer acts as the controller and StackGuardian as the processor pursuant to the General Data Protection Regulation 2016/679. All rights and obligations of the Parties regarding the processing of personal data are detailed in the Data Processing Annexe.
9.2. StackGuardian must for the entire Term implement industry standard security measures to protect Customer Data. At Customer’s request, StackGuardian will provide a short description of the general measures that have been implemented. StackGuardian will participate to Customer’s compliance actions, such as security questionnaires, at a cost to be agreed between the Parties.
10. General
10.1. These Terms represent the complete and entire understanding between the Parties regarding its scope and supersede all prior negotiations, representations or agreements.
10.2. StackGuardian is an independent contractor of Customer. The Parties’ relationship does not constitute a partnership, joint venture or agency.
10.3. A Party may assign its rights and obligations under these Terms to a third party which is financially stable, has the necessary technical expertise and isn’t a competitor of the other Party. The assigning Party must inform the other Party at least 30 days prior to the assignment.
10.4. If a provision of these Terms is invalid or unenforceable, the remaining provisions remain unaffected. The Parties will substitute for the invalid or unenforceable provision with a provision that conforms as much as possible to the original intent of the Parties.
10.5. Failure by a Party to enforce a provision of these Terms may not be considered as a waiver of this provision.
10.6. StackGuardian may use Customer’s name, logos, or any other identifier to promote its services to third parties. In doing so, StackGuardian must use Customer’s trade marks per Customer’s guidelines and respect article 8 (confidentiality).
10.7. The courts of Brussels have exclusive jurisdiction over any dispute regarding these Terms. These Terms are governed by Belgian law.
Definitions
Analytics Data means information on usage, operation, support and maintenance of the Services.
Confidential Information means all information exchanged between the Parties.
Customer means the entity identified as such in the Order Form and includes its affiliates.
Documentation means written technical and functional information about Services made available by StackGuardian to Customer.
StackGuardian means the entity StackGuardian NV and all its affiliates.
Order Form means the form, statement of work (‘SOW’) or other written document detailing the Services and/or Professional Services procured by Customer.
Party or Parties means any one or the combination of Customer and/or StackGuardian.
Professional Services means any consulting, development, implementation, training or any type of assistance provided to Customer as set out in an Order.
Terms means the combination of these terms & conditions and an Order Form.
Services means all solutions mentioned on www.stackguardian.io
