License Agreement
Last Updated: June 15, 2022
This License Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and Strake, Inc. (“Strake,” “we,” or “us”). This Agreement, including any ordering, quote, or purchase document or online order portal (“Order Form”) agreed to between you and Strake, governs your access to and use of the products and services provided by Strake, including, but not limited to the Strake platform, and any future products, enhancements, updates, or modifications (the “Cloud Services”). Capitalized terms have the definitions set forth in this Agreement.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “ACCEPT” BUTTON, OR ACCESS OR USE THE CLOUD SERVICES AFTER SIGNING UP FOR AN ACCOUNT, OR ON SUCH OTHER DATE EXPRESSLY SET FORTH IN AN ORDER FORM (as applicable, the “Effective Date”). BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO AND BE BOUND BY THE TERMS HEREIN. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, AND IN SUCH CASE, THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES, EMPLOYEES, AND AGENTS.
IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST SELECT THE “CANCEL” BUTTON AND MAY NOT ACCESS OR USE THE CLOUD SERVICES. IF YOU DO NOT HAVE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE CLOUD SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
IF YOU ORDERED A FREE TRIAL OR FREE VERSION OF THE CLOUD SERVICES PURSUANT TO YOUR ORDER FORM, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL GOVERN YOUR FREE TRIAL OR FREE VERSION.
Direct competitors of Strake are prohibited from accessing the Cloud Services in any version or trial available. The Cloud Services may not be used or accessed, whether for the free trial or free versions or otherwise, for purposes of monitoring functionality, performance, or any other benchmarking or competitive purpose.
1. Access and Use.
a. Access and Use and License. Subject to and conditioned on your compliance with the terms and conditions of this Agreement and payment of the Fees, Strake shall make the Cloud Services available to Customer during the Term so that Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement, and (ii) for who access to the Cloud Services has been purchased hereunder (collectively, “Authorized Users”) may utilize the Cloud Services solely for Customer’s internal business use. Customer acknowledges and agrees that payment of the Fees and its subscription to use the Cloud Services is not contingent on receipt or delivery of any certain functionality, features, or support by Strake. Strake hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for Customer’s internal business operations by Authorized Users.
b. Documentation License. Subject to the terms and conditions contained in this Agreement, Strake hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the user manuals, guides, and other materials relating to the Cloud Services as provided by Strake (“Documentation”) during the Term solely for your internal business purposes in connection with use of the Cloud Services.
c. Use Restrictions. Customer shall not, and shall not permit any Authorized User to, use the Cloud Services or Documentation, for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, and Customer shall ensure Authorized Users do not, at any time, directly or indirectly:
i. use the Cloud Services or Documentation to create a product or service competitive with the Cloud Services or for any purpose that is to the detriment or commercial disadvantage of Strake, including using the Cloud Services or Documentation to generate product benchmarking data for public distribution or copy any ideas, features, functions or graphics of the Cloud Services;
ii. copy, modify, adapt, alter, translate or create derivative works of the Cloud Services, any component of the Cloud Services, or Documentation, in whole or in part, or take any action that would cause the Cloud Services to be placed in the public domain;
iii. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part;]
iv. remove any proprietary notices from the Cloud Services or Documentation;
v. use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person;
vi. use the Cloud Services or Documentation in any manner or for any purpose that violates any applicable law, regulation, or rule, is fraudulent, or has any unlawful or fraudulent effect;
vii. use the Cloud Services in a manner that would knowingly cause the Cloud Services to experience downtime or reduction in availability, interfere with, delay or disrupt the integrity of performance of the Cloud Services;
viii. use the Cloud Services to transmit or input any data, content, information, or send or upload any material that contains viruses, trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
ix. bypass or breach any security device or protection used for or contained in the Cloud Services or interfere with or gain unauthorized access to the Cloud Services;
x. rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation to third parties, unless expressly permitted under this Agreement or agreed to in writing by Strake or permit any time-sharing, outsourcing, service bureau or similar uses; or
xi. use, exploit or resell the Cloud Services or Documentation to provide services to third parties, unless expressly agreed to in writing by Strake.
d. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Strake may collect and utilize any information, data and other content, in any form or medium, that is submitted, posted, or transmitted by or on behalf of Customer or any Authorized User to the Cloud Services (“Customer Data”) and information derived from Customer’s use of the Cloud Services and monitor Customer’s use of the Cloud Services for its internal business purposes, research and development and for improvement to product and service offerings (“Research Data”). Customer acknowledges and agrees that Strake shall also have the right to aggregate, collect and compile Research Data to be used by Strake in an anonymized manner, so that results are non-personally identifiable with respect to the Customer or any Authorized User, including to compile statistical and performance information related to the provision and operation of the Cloud Services (collectively “Aggregated Data”). As between Strake and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Strake. You acknowledge that Strake may compile Aggregated Data based on Customer Data input into the Cloud Services. You agree that Strake may use Aggregated Data to the extent and in the manner permitted under applicable law or regulation, including, without limitation for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
e. Reservation of Rights. Strake reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Cloud Services, the Documentation, Aggregated Data and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing, excluding Customer Data (the “Strake IP”).
f. Suspension. Notwithstanding anything to the contrary in this Agreement, Strake may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Cloud Services if:
(i) Strake reasonably determines that (A) there is a threat or attack on any of the Strake IP; (B) Customer’s or any other Authorized User’s use of the Strake IP disrupts or poses a security risk to the Strake IP or to any other customer or vendor of Strake; (C) Customer or any other Authorized User is using the Strake IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Strake’s provision of the Cloud Services to Customer or any other Authorized User is prohibited by applicable law;
(ii) any vendor of Strake has suspended or terminated Strake’s access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or
(iii) in accordance with Section 4 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Strake shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Strake shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Services Suspension is cured. Strake will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
2. Customer Responsibilities.
a. Account Use. You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
b. Customer Data. You hereby grant to Strake a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Strake to provide the Cloud Services to you. You hereby represent and warrant that you have all rights in the Customer Data necessary to grant all rights and licenses set forth in this Agreement, and you will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data. Customer agrees that it has sole control over the nature and scope of the Customer Data processed by the Cloud Services, and the origin or location of Authorized Users.
c. Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. Passwords and access credentials are unique to each Authorized User and may not be shared. You will not sell or transfer them to any other person or entity. You will promptly notify us about any known or suspected unauthorized disclosure of, access to or use of your passwords or access credentials, or any violation of Customer’s obligations with respect to the use of the Cloud Services by any Authorized User.
d. Customer Responsibilities. Customer is solely responsible for all activities that occur in any Authorized Users’ accounts and for compliance with this Agreement by Authorized Users. Customer shall:
(i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data submitted by it and its Authorized Users to the Cloud Services; and
(ii) prevent unauthorized access to, or use of, the Cloud Services, and notify Strake promptly of any such unauthorized access or use. If Customer becomes aware of any violation of Customer’s obligations under this Agreement by any Authorized User, Customer will promptly notify Strake and work with Strake to promptly terminate access of any such Authorized User to the Cloud Service.
e. Third-Party Products. The Cloud Services may permit access to or interface with certain products, content, services, information, websites, or other materials that are owned by third parties (“Third-Party Products”). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. Strake makes no warranty regarding the operation or functionality of such Third-Party Products and does not guarantee that the Cloud Services will interoperate or interface with the Third-Party Products. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
3. Evaluation License.
If Strake provides Customer with a trial or evaluation license for the Cloud Services (the “Evaluation License”), Customer agrees to use the Cloud Services solely for evaluation purposes for an evaluation period of up to thirty (30) days unless a different period is otherwise agreed in writing by Strake or specified in an Order Form (the “Evaluation Period”). At the end of the Evaluation Period, Customer’s right to use the Cloud Services automatically expires, Customer agrees to cease all use of the Cloud Services, and all access to the Cloud Services will be discontinued unless Customer and Strake enter into an Order Form pursuant to which Customer agrees to acquire a license for a paid account for the Cloud Services. Strake makes no representations and warranties in connection with any use of the Cloud Services under an Evaluation License and all use during the Evaluation Period is at the sole risk of Customer.
4. Fees and Payment.
Customer shall pay all fees, if any, specified in any Order Form for the selected account (“Fees”). Customer acknowledges and agrees that the Cloud Services are subscription services and are subject to automatic renewal as specified in any Order Form. All Fees will be due and payable at the beginning of each renewal term, unless otherwise set forth in the Order Form. Strake may charge your payment method at the beginning of each renewal term without further authorization from you until you terminate the Cloud Services in accordance with Section 11. If Customer fails to make any payment when due, including because of failure to update your payment method, without limiting Strake’s other rights and remedies: (i) Strake may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall be liable for and shall reimburse Strake for all costs incurred by Strake in collecting any late payments or interest on unpaid Fees, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for seven (7) days or more, Strake may suspend, in accordance with Section 1(f), Customer’s and all other Authorized Users’ access to any portion or all of the Cloud Services until such amounts are paid in full, without incurring any obligation or liability to Customer by reason of such suspension. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Strake’s income.
5. Confidential Information.
Strake and Customer may disclose or make available (as applicable, the “Disclosing Party”) to the other party (the “Receiving Party”) information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including without limitation, the terms and conditions of this Agreement, the Cloud Services, business and marketing plans, technology and technical information, pricing information, financial results and information, product designs, product roadmaps, results of penetration testing, security reports or audits and business processes, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is:
(a) in the public domain;
(b) known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
(c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party without breach of any obligation owed to the Disclosing Party; or
(d) independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees, contractors, or service providers who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, Strake may disclose Customer Data and other information provided by Customer or Authorized Users of the Cloud Services in accordance with Strake’s Privacy Policy described in Section 6 below, and each party may disclose Confidential Information to the limited extent required
(i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or
(ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the Receiving Party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Privacy Policy.
Strake complies with its privacy policy available at https://getstrake.com/privacy-policy (“Privacy Policy”), in providing the Cloud Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Cloud Services, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
7. Intellectual Property Ownership;
Feedback. As between you and us,
(a) we own all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and Documentation and
(b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
8. Warranty Disclaimer.
THE CLOUD SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” AND STRAKE SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. STRAKE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. STRAKE MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, THE DOCUMENTATION OR RESULTS OF THE USE OF ANY OF THE FOREGOING, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9. Indemnification.
a. Strake Indemnification.
Subject to the terms of the Agreement, Strake will defend at its own expense any action against Customer brought by a third party alleging that the Cloud Services infringe the intellectual property rights of such third party, and Strake will indemnify and hold Customer harmless against those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer’s compliance with the Indemnification Conditions (defined below). If the Cloud Services become, or in Strake’s opinion are likely to become, the subject of an infringement claim, Strake may, at its option and expense, either:
(i) procure for Customer the right to continue using the Cloud Services;
(ii) replace or modify the Cloud Services so that they become non-infringing; or
(iii) terminate the subscription to the infringing Cloud Services and refund Customer any unused, prepaid fees for the infringing Cloud Services covering the remainder of the Term after the date of termination. Notwithstanding the foregoing, Strake will have no obligation or liability under this Section 9(a) or otherwise with respect to any infringement claim based upon: (a) any use of the Cloud Services not in accordance with this Agreement; (b) any use of the Cloud Services under an Evaluation License, (c) any use of the Cloud Services in combination with products, equipment, software, or data not supplied or approved in writing by Strake if such infringement would have been avoided but for the combination with other products, equipment, software or data; (d) any claim arising from the Customer Data; or (e) any modification of the Cloud Services by any party other than Strake.
THIS SECTION 9(a) STATES STRAKE’S ENTIRE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.
b. Customer Indemnification.
Subject to the terms of this Agreement, Customer will defend at its own expense any action against Strake brought by a third party (including any Authorized User) (i) alleging that Strake’s possession or use of the Customer Data violates, or misappropriates the rights of, or has otherwise harmed, a third party, or (ii) concerning a Authorized User’s use of the Cloud Service (provided it is not due to Strake’s breach of this Agreement), and Customer will indemnify and hold Strake harmless against those costs and damages finally awarded against Strake in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Strake’s compliance with the Indemnification Conditions (defined below).
c. Indemnification Conditions.
“Indemnification Conditions” means the following conditions, which a party must comply with to be entitled to the defense and indemnification obligations of the other party under this Agreement. The indemnified party must (i) notify the indemnifying party promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim (provided that failure to so notify the indemnifying party shall not relieve the indemnifying party of its indemnification obligations, except to the extent that such failure is prejudicial to the indemnifying party’s ability to defend such claim or action); (ii) give the indemnifying party sole control of the defense thereof and any related settlement negotiations (provided that the indemnified party shall be entitled to participate in the defense and settlement of the claim and to employ counsel at its own expense to assist in the handling of the claim and providing further that the indemnifying party may not agree to any settlement or compromise affecting the financial or legal obligation of the indemnified party without the indemnified party’s prior written consent); and (iii) cooperating and, at the indemnifying party’s request and expense, assisting in such defense.
10. Limitations of Liability.
IN NO EVENT WILL STRAKE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER STRAKE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL STRAKE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO STRAKE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
a. Term. The term of this Agreement begins on the Effective Date and continues in accordance with the subscription term set forth on the Order Form or as otherwise agreed in writing with Strake, unless earlier until terminated as set forth herein (the “Initial Term”). The Initial Term will automatically renew for successive terms of equal duration as set forth on the Order Form (the “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides at least thirty (30) days written notice of its desire not to renew prior to the expiration of the then-current Term.
b. Termination. In addition to any other express termination right set forth in this Agreement:
i. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
ii. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
c. Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Strake IP and all rights to use the Cloud Services and Documentation granted in this Agreement will immediately cease to exist and Customer must promptly discontinue all use of the Cloud Services. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that have become due before such expiration or termination or entitle Customer to any refund except to the extent otherwise expressly provided in Section 9(a) or if this Agreement is terminated by Customer pursuant to Section 11(b). If this Agreement is terminated by Strake pursuant to Section 11(b), Customer shall remain responsible for any payments set forth on any outstanding Order Form, regardless of whether such amounts have been invoiced or are payable at the time of such termination.
d. Survival. Any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
12. Modifications.
You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms.
13. Governing Law and Jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder will be instituted in the federal courts of the United States or the courts of Boulder, Colorado, U.S.A., and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
14. Force Majeure.
Neither party will be liable for any failure in performance due to circumstances beyond such party’s reasonable control, including without limitation, acts of God; acts of government; flood; fire; earthquakes; civil unrest; acts of terror, strikes or other labor problems (other than those involving such party’s employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks.
15. Miscellaneous.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at https://getstrake.com and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder. There are no third-party beneficiaries to this Agreement. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.