These Master Terms and Conditions are entered into by and between:
Loot Discount Inc. d.b.a. Stepwork, a California corporation with a principal place of business at 2261 Market Street #4481, San Francisco, CA 94114 (“Stepwork”); and
[Customer Name], a [Delaware] corporation with a principal place of business at [Customer Address] (“Customer”).
1.1. These Master Terms and Conditions, together with all applicable Orders issued by Stepwork from time to time (collectively, the “Agreement”), govern the provision of Services by Stepwork to the Customer, as well as the Customer’s use of those Services.
1.2. This Agreement becomes effective as of the earlier of (a) the date Customer enters into an Order with Stepwork, or (b) the date Customer first accesses or uses the Services (the “Effective Date”).
Capitalized terms used but not otherwise defined in this Agreement have the following meanings:
2.1. “Affiliate” means any person or entity that owns or controls, is owned or controlled by, or is under common control or ownership with, Customer, where control is defined as the 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 or otherwise.
2.2. “Aggregate Data” means (1) any data or information collected, generated, or derived by Stepwork in connection with the provision, operation, or improvement of the Services that does not identify, and cannot reasonably be used to identify, any End User; (2) any data that is derived or aggregated in deidentified form from Customer Content; and (3) the statistical, technical or behavioural usage data derived from the operation of, or relating to the access or use of the Services, including information reflecting the access to or use of the Services by or on behalf of Customer or any authorized user of Customer. For clarity, Aggregate Data is owned by Stepwork.
2.3. “Customer Content” means any data, file attachments, text, images, reports, personal information, or other content that is uploaded or submitted to a Service by Customer or Customer Representatives and is processed by Stepwork on behalf of Customer. For the avoidance of doubt, Customer Content does not include (1) usage, statistical, or technical information, and (2) Aggregate Data.
2.4. “Customer Representative” means any individual authorized or invited by Customer or a Customer Representative to access and use the Services received by Customer from Stepwork under the terms of this Agreement.
2.5. “Credits” means prepaid monetary or unit-based value purchased by Customer that may be applied toward Usage of the Services, as further described in the applicable Order.
2.6. “Disclosing Party” means the party disclosing Confidential Information to the Receiving Party.
2.7. “Documentation” means documentation provided by Stepwork on the Site that is uniformly available and applicable to all Stepwork customers and relates to the operation and use of the Services, including user manuals, operating instructions, and release notes, each as updated by Stepwork from time to time.
2.8. “End Users” means Customer’s employees, contractors and other users.
2.9. “Order(s)” means an executed electronic or tangible ordering document or online order issued by Stepwork that sets forth the commercial details of products and services made available to Customer and incorporates this Agreement by reference.
2.10. “Partner App” means a service or application developed and owned by a third party for which Customer purchases a license from Stepwork under an Order and is made available to Customer exclusively in accordance with the terms and conditions of the end user license agreements accompanying them, except that the payment provisions of this Agreement will apply.
2.11. “Stepwork Properties” means the Services and the Documentation, and all Stepwork or third-party technology, software, content, data, methodologies, improvements, and documentation, used to provide or made available in connection with Services and Documentation, and all intellectual property and proprietary rights in and to the foregoing.
2.12. “Policies” means the Privacy Policy and any other policies that Stepwork enacts with respect to the Services from time to time, as they may be amended from time to time.
2.13. “Receiving Party” means the party receiving or accessing Confidential Information of the Disclosing Party.
2.14. “Services” means Stepwork’s internet-delivered services and applications that are purchased by Customer, and any other internet-delivered services, tools or application provided by Stepwork, as further detailed and described in the applicable Order.
2.15. “Site” means Stepwork’s website at https://www.stepwork.com and any website linked from such website that is owned or controlled by Stepwork.
2.16. “SysAdmin” means a Customer Representative with certain administrative control rights over Customer’s Services.
2.17. “Training Resources” means Stepwork’s online training portal and the content therein.
2.18. “Usage” means the measurable consumption of the Services by Customer, including but not limited to the number of API calls, data storage, bandwidth, or other usage metrics as specified in the applicable Order.
3.1. Right to Access and Use. Subject to the terms and conditions of this Agreement and in consideration of the fees specified in any Order, Stepwork hereby grants Customer a worldwide, non-exclusive, non-transferable right to access and use the Services during the Term in accordance with the Documentation for Customer’s own business purposes and authorizes Customer to grant such limited access and use rights to Customer Representatives and Affiliates.
3.2. Account Creation and Administration. Customer or Customer Representatives shall be responsible for providing the personal information used to create Customer Representative account profiles. Customer and Customer Representatives shall (a) provide true, accurate, current and complete information as may be prompted by any registration forms on the Services (“Registration Data”); and (b) promptly update the Registration Data and any other information they provide to Stepwork, to ensure it remains true, accurate and complete. Except for name and email address, Customer Representatives may elect not to display their other profile information within Customer’s account profile. Each set of login credentials for the Customer’s account profile can be used only by a single, individual Customer Representative. Customer agrees to promptly notify Stepwork in writing of any unauthorized access or use which Customer becomes aware. Customer and Customer Representatives shall keep access credentials (such as passwords, API keys or other information required to access the Service) secure and confidential. Access credentials are the property of Stepwork and may be revoked if Customer or Customer Representatives share them with any third party (other than as allowed herein), if they are compromised, or if Customer violates this Agreement. Customer will be responsible for all access and use of the Services that occurs under Customer Representatives’ login credentials, and for any breach of this Agreement by any Customer Representatives. Further, as a condition of using the Services, Customer and Customer Representatives must:
3.2.1. not attempt to undermine the security or integrity of Stepwork’s computing systems or networks or, where the Services are hosted by a third party, that third party’s computing systems and networks;
3.2.2. not use, or misuse, the Services in any way which may impair their functionality, or other systems used to deliver the Services or impair the ability of any other user to use the Services;
3.2.3. not attempt to gain unauthorized access to any materials other than those to which Customer has been given express permission to access or to the computer system on which the Services are hosted;
3.2.4. not use the Services to transmit any: files that may damage any other person’s computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which Customer does not have the right to use); and
3.2.5. not attempt to modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer any computer programs used to deliver the Services except as is strictly necessary to use either of them for normal operation.
4.1. Description of the Tool. As part of the Services, Stepwork may make available an AI-enabled device access tool (“AI Access Tool”) that temporarily interacts with End User computing environments for the limited purpose of Customer determining and verifying the identity of authorized users of different software services within Customer’s organization.
4.2. Consent and Authorization. Customer represents and warrants that it has obtained all necessary rights, authorizations, and legally valid consents from its End Users to enable Stepwork to deploy and operate the AI Access Tool on their devices. Use of the AI Access Tool must comply with all applicable privacy and employment laws. Stepwork shall only deploy the AI Access Tool upon Customer’s instruction.
4.3. Limited and Purpose-Bound Use. The AI Access Tool may access limited device-level data strictly necessary to verify user affiliation and access rights (such as device metadata, user session information, or company domain indicators). It will not access personal files, communications, or non-essential system data. The Tool operates in a single-use or session-limited manner and does not provide Stepwork with ongoing or persistent control over the device. Customer will maintain current authorizations and immediately notify Provider of any revocation of access rights.
4.4. Data Handling and Privacy. All data processed through the AI Access Tool shall be governed by the terms of this Agreement and by the Data Processing Addendum executed between the Parties (“DPA”). Customer acknowledges that use of the AI Access Tool may involve the processing of Personal Data (as defined in the DPA) and agrees that it will not instruct Stepwork to use the Tool in a manner inconsistent with applicable data protection laws or the DPA.
4.5. Security and Scope Controls. Stepwork shall implement and maintain appropriate technical and organizational measures to protect any data accessed or processed through the AI Access Tool, in accordance with this Agreement and the DPA. The Tool is designed to operate in a secure, isolated manner and automatically terminates access upon completion of the verification process.
4.6. Customer Responsibilities. Customer is solely responsible for (i) ensuring End Users are properly notified of the AI Access Tool’s use and that such End Users receive any privacy notices required by law; (ii) obtaining and documenting any necessary consents; and (iii) disabling the Tool’s deployment for any End User who does not provide legally sufficient consent. Stepwork shall have no liability arising from Customer’s failure to obtain such consents or comply with applicable law.
4.7. Changes. Stepwork may update the AI Access Tool’s capabilities or delivery mechanism from time to time, provided that such updates do not materially expand the scope of data access or processing without advance written notice to Customer.
4.8. Machine Learning and Model Training. Customer acknowledges and agrees that Aggregate Data derived from the operation of the AI Access Tool, may be used by Stepwork to develop, train, or enhance artificial intelligence or machine learning models that are integrated into Stepwork’s products and services. Stepwork shall ensure that: (a) such data is aggregated prior to use for model training purposes; and (b) Stepwork employs commercially reasonable efforts, consistent with prevailing industry standards, to de-identify Usage Data and Customer Content prior to any such use. This clause shall not limit or reduce Stepwork’s obligations under the DPA or under applicable data protection laws with respect to any Personal Data.
4.9. AI Generated Outputs. Customer acknowledges that AI-based features may generate AI systems may produce unpredictable results and outputs that are inaccurate or incomplete and that such features including the AI Access Tool are not intended to replace human judgment or oversight.
5.1. Customer Content: Transfer or Disclosure by Customer. Customer is responsible for the transfer or disclosure of Customer Content initiated or caused by Customer or Customer Representatives via the functionality of the Services and for ensuring that such transfer or disclosure complies with applicable laws and regulations. Customer represents, warrants and covenants that it has all necessary rights, consents and other authority to (i) provide to Stepwork, for Stepwork’s use as contemplated in this Agreement, any Customer Content, and (ii) for Stepwork to send electronic messages on behalf of Customer under this Agreement. Stepwork will have no liability for interference with or disruption of, or modification or deletion of data or content processed by, third party services or applications in connection with Customer Content transferred or disclosed to or from such third-party services or applications.
5.2. Prohibited Uses. Customer will not, and will not permit Customer Representatives to: (a) frame, distribute, or resell the Services, or allow access to the Services by any third party other than as permitted under this Agreement or an Order; (b) use the Services in any manner beyond the scope of rights expressly granted in this Agreement or any Order; (c) interfere with the Services or disrupt any other user’s access to the Services; (d) reverse engineer, decompile, disassemble, attempt to gain unauthorized access to, or attempt to discover the underlying source code or structure of, Stepwork Properties (as defined below); (e) submit to the Services or use the Services to distribute any malware or any unauthorized feature that is designed to alter any software, program, data, device, system or service, or provide unauthorized access to the Services; (f) use any robot, spider, data scraping tool, or similar mechanism on the Services or to circumvent the use limits and prohibitions under this Agreement; (g) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (h) use the Services, or any Stepwork Confidential Information, to create, improve (directly or indirectly) or offer a substantially similar product or service, or build a competitive product.
6.1. Processing. Customer represents and warrants that it has all rights, permissions, consents and other authority necessary to: (a) submit all Customer Content to the Services; (b) grant Stepwork the limited rights to process Customer Content for the provision of the Services; and (c) permit Stepwork to send electronic messages on behalf of Customer in connection with the Services. Customer hereby grants Stepwork a worldwide, non-exclusive, non-transferable, right to use and otherwise process Customer Content under this Agreement only: (x) as required by applicable law; (y) as requested by Customer in writing or as allowed by Customer via a Service’s access controls; and (z) as necessary to provide the Services and prevent or address technical problems with the Services or violations of this Agreement. Stepwork’s limited right to process Customer Content hereunder will not excuse any obligation of Stepwork relating to Customer Content under this Agreement.
6.2. Security. Stepwork will use procedural, technical, and administrative safeguards for its Services designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Confidential Information and Customer Content stored by Stepwork, as further detailed and described in the DPA. Notwithstanding any other provision of this Agreement or any other agreement related to the Services, Stepwork will not be responsible for any breach or loss resulting from Customer’s security configuration or administration of the Services. Stepwork will not be responsible for unavailability of the Services resulting from: non-Stepwork owned equipment or software, or connectivity errors arising from Customer’s network or databases; Services maintenance; events outside of Stepwork’s control, including any force majeure event, Internet node or facility outage, maintenance or outage of a third-party hosting provider, or problems beyond the demarcation point of a Stepwork hosted deployment; or a suspension or remedial action described in this Agreement.
6.3. Service Providers. Stepwork may engage service providers (including sub-processors, as defined in the DPA) to act on Stepwork’s behalf in connection with Stepwork’s provision of the Services, including processing Customer Content, provided that: (a) such service providers are subject to confidentiality and data security obligations that are substantially as protective of the Customer Content as those set forth in this Agreement; and (b) Stepwork is responsible for such service providers’ acts and omissions in relation to Stepwork’s obligations under this Agreement and the DPA.
6.4. Aggregate Data. Notwithstanding anything in this Agreement to the contrary, Customer agrees that Stepwork may use Customer Content to create Aggregate Data. As between Customer and Stepwork, Stepwork owns all right, title, and interest, including all intellectual property rights, in and to the Aggregate Data and may use such data for any lawful purpose. This includes using Aggregate Data to conduct research, improve the Services, create or build new products, build and train proprietary algorithms or models, engage in data analytics, and otherwise exploit the Aggregate for Stepwork’s commercial purposes.
7.1. Stepwork. As between the parties, all right, title, and interest, in and to Stepwork Properties is owned by Stepwork notwithstanding any other provision in this Agreement. Except as expressly set forth in this Agreement, Stepwork does not convey any rights to Customer or any Customer Representative.
7.2. Customer. As between the parties, Customer retains all its right, title, and interest, in and to Customer Content and Customer Confidential Information, including all intellectual property and proprietary rights therein. Customer grants to Stepwork a limited, non-exclusive, non-transferable and revocable license to process, transfer, store and archive Customer Content as expressly stated in this Agreement solely to the extent necessary for Supplier to fulfil its obligations under this Agreement and for the purposes of developing and deriving Aggregate Data. Except as expressly set forth in this Agreement, Stepwork acquires no right, title, or interest, from Customer under this Agreement in or to Customer Content.
7.3. Feedback. Customer grants Stepwork a worldwide, irrevocable, perpetual, sublicensable, transferable, non-exclusive license to use and incorporate into Stepwork’s products and services any feedback or suggestions for enhancement that Customer or a Customer Representative provides to Stepwork, without any obligation of compensation.
8.1. Stepwork API. Stepwork may make an application programming interface or other similar development tool available within the Services which establishes an interface with the Services (“Stepwork API”). Unless Customer has entered into Stepwork’s separate developer agreement and Stepwork has provided Customer with an application ID for authentication purposes, Customer shall not use or enable a third party to use the Stepwork API: (a) in a manner that causes Customer to exceed the limits of its authorized use of the Services as set forth in this Agreement; or (b) to access data, applications, services, or a Stepwork account, belonging to a third party.
8.2. Third Party Products. Services, applications, and online content, including Partner Apps, may be made available and provided to Customer by a third party for use with the Services at Customer’s discretion (“Third Party Products”), and such use is subject to any end user license or use agreements that accompany such products or are established between Customer and such third party. Third Party Products are not Services and, as between the parties, Stepwork has no liability with respect to Third Party Products. Notwithstanding the foregoing, the payment provisions (and only the payment provisions) of this Agreement apply with respect to Partner Apps purchased by Customer under an Order.
9.1. The Order will specify whether the Services are provided under (i) a credit-based pricing model or (ii) a subscription-based pricing model, depending on the nature of the Services selected by Customer and as specified in the Order.
9.2. Credit-Based Pricing (if applicable). Where the Order specifies that the credit-based pricing model applies, the following terms shall apply:
9.2.1. Customer shall purchase Credits in advance of using the Services in the amounts specified in each Order. Credits will be applied against Usage at the rates specified in the Order.
9.2.2. As Services are consumed, the corresponding amount of Credits will be deducted automatically. If Usage exceeds the available Credits, Customer may not continue to access the Services until additional Credits are purchased, unless otherwise agreed in writing.
9.2.3. All Credits are nonrefundable once paid except as otherwise expressly provided in this Agreement or the applicable Order.
9.2.4. Credits may not be resold or transferred.
9.3. Subscription Pricing (if applicable).
9.3.1. Where the Order specifies that the subscription-based pricing model is applied, Customer shall pay the subscription fees set forth in the applicable Order. Subscription fees are billed in advance and grant Customer the right to access and use the Services described in the Order during the applicable subscription term. Unless otherwise stated in the Order, subscription terms shall automatically renew for successive periods equal to the initial term, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
9.3.2. All Services fees are nonrefundable once paid except as otherwise expressly provided in this Agreement or the applicable Order.
9.3.3. Payment. Unless otherwise provided in the applicable Order, Stepwork will invoice Customer for subscription Service fees monthly in advance and professional Service fees on a time and materials basis monthly in arrears.
9.4. Invoicing Terms. All amounts under this Agreement are payable net thirty (30) days from the date of the invoice.
9.5. Taxes. Other than income taxes imposed on Stepwork, Customer will bear all taxes, duties, VAT, and all other governmental charges (collectively, “Taxes”) resulting from this Agreement. If Customer is exempt from any applicable Taxes, Customer will provide evidence reasonably satisfactory to Stepwork of Customer’s tax-exempt status and, after receipt of such evidence, Stepwork will not charge Customer any Taxes from which it is exempt.
9.6. Payment Processors and Resellers. Customer may elect to purchase certain Services through a reseller authorized by Stepwork (“Reseller”) or elect to pay for the Services under this Agreement through a third party who processes Customer’s payments (“Payment Processor”). Customer’s obligation for payment to, and relationship with, any Reseller or Payment Processor is between Customer and such Reseller or Payment Processor. If Customer elects to use a Reseller or Payment Processor, Customer remains liable for the fees under this Agreement and if the Reseller or Payment Processor fails to remit any fees, Stepwork will invoice Customer accordingly.
9.7. General. Customer agrees to promptly notify Stepwork in writing of any changes to its billing information during any Term. Stepwork reserves the right to correct any billing errors or mistakes that Stepwork identifies in an invoice or after a payment is received. Stepwork may accept payment in any amount without prejudice to Stepwork’s right to recover the balance of the amount due under an Order or to pursue any other right or remedy. Amounts due to Stepwork from Customer shall not be withheld or offset against amounts due or alleged to be due to Customer from Stepwork. Except as prohibited by law, Stepwork may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. If Customer requires a purchase order, vendor registration form, or other documentation, such requirement will in no way relieve, affect or delay Customer’s obligation to pay any amounts due hereunder.
10.1. Agreement Term; Renewal of Orders. This Agreement will remain in effect until terminated as set forth herein or by the parties’ mutual written agreement. The term of any Service on an Order with a recurring Term remains in effect for the initial Term specified therein (“Initial Term”) and any subsequent renewal Terms (each a “Renewal Term” and together with the Initial Term, the “Term”). After the Initial Term, ORDERS WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ONE (1) YEAR RENEWAL TERMS UNLESS EITHER PARTY PROVIDES THE OTHER PARTY WRITTEN NOTICE OF NON-RENEWAL AT LEAST FIFTEEN (15) DAYS PRIOR TO THE END OF THE THEN-CURRENT TERM. Notwithstanding the foregoing, any purchases of non-recurring or one-time Services made via an Order will not automatically renew.
10.2. Term of Orders. Each Order remains in effect for the period specified therein.
10.3. Termination for Cause; Suspension. Either party may terminate an Order or this Agreement immediately upon written notice if the other party breaches any material provision of an Order or this Agreement, and fails to cure the breach within fourteen (14) days of such written notice from the non-breaching party. In addition, Stepwork may suspend Customer’s access to any Service immediately if: (a) Customer fails to make a payment for more than fifteen (15) days following its due date; or (b) Customer has, or Stepwork reasonably suspects that Customer has, breached Section 5.2 (Prohibited Uses) or misappropriated or infringed Stepwork’s intellectual property or proprietary rights.
10.4. Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all Orders under this Agreement will terminate; and (b) all rights and obligations of the parties hereunder will cease (except as set forth in Section 10.6 (Survival) below). If Customer terminates an Order or this Agreement for Stepwork’s uncured breach pursuant to Section 10.3 (Termination for Cause; Suspension), Stepwork shall issue a refund of prepaid fees covering the terminated portion of each Services’ respective Term and, if applicable, Training Resources and Partner Apps. If Stepwork terminates a Service or this Agreement for Customer’s uncured breach pursuant to Section 10.3, Customer shall pay all outstanding payable amounts (if any) under this Agreement for the Term applicable to the terminated Service and, if applicable, Training Resources and Partner Apps, regardless of the due dates specified in the Order. Customer will remain obligated to pay for Services rendered through, or payable as of, the effective date of the termination.
10.5. Return of Customer Content; Use After Termination or Expiration. Upon Customer’s written request prior to or contemporaneous with the termination or expiration of any Term and at no additional cost to Customer, Stepwork will forward to Customer a copy of Customer Content in its standard export format. This right will survive for thirty (30) days following such date of termination or expiration. Thereafter, Stepwork has no obligation to retain Customer Content, and may at its option may render Customer Content unrecoverable. For clarity, Stepwork has the right after the termination or expiration of the Agreement to retain a copy of Customer Content for archival purposes in accordance with applicable laws.
10.6. Survival. The following Sections will survive termination or expiration of this Agreement: 5.2 (Prohibited Uses); 6.1 (Processing); 7 (Intellectual Property and Proprietary Rights); 8.2 (Third Party Products); 9 (Fees and Payment); 10.5 (Return of Customer Content; Use After Termination or Expiration); 10.6 (Survival); 11 (Confidentiality); 13 (Limitations of Liability); 14 (Indemnification); 15 (General).
11.1. Confidential Information. “Confidential Information” means all non-public, proprietary, business, technical, legal, or financial information disclosed or learned in connection with this Agreement that the Disclosing Party has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding its disclosure, the Receiving Party would clearly understand it as confidential. With regard to Stepwork, Confidential Information includes Stepwork Properties. With regard to Customer, Confidential Information includes Customer Content. Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to the Receiving Party; (b) information that becomes generally known to the public (other than through a breach of Section 11 (Confidentiality) by the Receiving Party) after disclosure to the Receiving Party; (c) information that was in the Receiving Party’s possession free of any obligation of confidentiality prior to disclosure by the Disclosing Party; (d) information that is rightfully received by the Receiving Party from a third party without any restriction on disclosure; or (e) information that was independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.
11.2. Use and Disclosure of Confidential Information. Without limiting any non-disclosure agreement executed between Stepwork (or an Affiliate) with Customer, the Receiving Party: (a) will not use the Disclosing Party’s Confidential Information for any purpose except as permitted under this Agreement; (b) subject to Section 3.1, will not disclose, give access to, or distribute any of the Disclosing Party’s Confidential Information to any third party, except to the extent expressly authorized in this Agreement or a separate written agreement signed by the Disclosing Party; and (c) will take reasonable security precautions (which will be at least as protective as the precautions it takes to preserve its own Confidential Information of a similar nature) to safeguard the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those of its employees, directors, Affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as those set forth in this Agreement. The Receiving Party will be responsible for its Representatives’ disclosure or use of the Disclosing Party’s Confidential Information in violation of Section 11 (Confidentiality). The Receiving Party will promptly notify in writing the Disclosing Party upon discovery of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information, or any other breach of Section 11, by it or its Representatives. The Receiving Party’s obligations set forth in Section 11 will remain in effect during the Term and three (3) years after termination of this Agreement. The disclosure of Confidential Information to the Receiving Party does not grant or convey any right of ownership of such Confidential Information.
11.3. Required Disclosures. The Receiving Party may disclose Confidential Information to the extent required by law or legal process. In such cases, however, the Receiving Party will (except to the extent prohibited by law or legal process): (a) give the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain a protective order or other legally available means of protection.
11.4. Return of Materials. Upon written request by the Disclosing Party, the Receiving Party will, without undue delay: (a) either return or destroy all tangible documents and media in its possession or control that contain the Disclosing Party’s Confidential Information; (b) render unrecoverable electronically stored Confidential Information of the Disclosing Party in its possession or control; and (c) certify its compliance with this Section 11.5 in writing. Notwithstanding the foregoing: (x) the Receiving Party will not be obligated to render unrecoverable Confidential Information of the Disclosing Party that is contained in an archived computer system backup made in accordance with the Receiving Party’s legal and financial compliance obligations or security and disaster recovery procedure; and (y) Stepwork may after the termination or expiration of this Agreement continue to use anonymized Customer Content in connection with the Services as provided for in Section 10.5 (Return of Customer Content; Use After Termination or Expiration).
11.5. Injunctive Relief. The Receiving Party acknowledges that any actual or threatened breach of Section 11 (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief to prevent or mitigate any breaches of Section 11 with respect to the Disclosing Party’s Confidential Information or any damages that may otherwise result from those breaches.
12.1. Authority and Compliance Warranty. Each party represents and warrants that it has the necessary authority to enter into this Agreement and that it shall comply with any laws, statutes, and regulations to the extent such laws, statutes and regulations apply to this Agreement.
12.2. Limited Warranty for Services. Stepwork represents and warrants that the Services will operate during the applicable Term substantially as described in the applicable plan feature overview and release notes made available by Stepwork. Customer must notify Stepwork in writing of any alleged failure by Stepwork to comply with this warranty promptly after it becomes aware of such failure. To the maximum extent permitted by law, Stepwork’s sole obligation, and Customer’s sole and exclusive remedy for any breach of the this warranty, shall be for Stepwork to use commercially reasonable efforts to correct any nonconformity. Notwithstanding the foregoing, this warranty will not apply to any failure due to a defect in or modification of the Services that is caused or made by Customer, any Customer Representative, or a person acting at Customer’s direction, or if the Services are defective due to extrinsic causes, such as natural disasters, including without limitation fire, smoke, water, earthquakes or lightning; electrical power fluctuations or failures; a correction or modification not made or authorized by Stepwork; the combination of the Services with other items or services with which the Services are not intended to be used; downtime or failure in telecommunications equipment or the Internet. The foregoing sets forth Customer’s exclusive rights and remedies and Stepwork’s sole liability in connection with this Section.
12.3. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, STEPWORK MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STEPWORK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY, AND STEPWORK DOES NOT WARRANT THAT THE SERVICES OR THIRD- PARTY APPLICATIONS AND SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, NOR THAT IT WILL BE FREE FROM VULNERABILITIES OR VIRUSES.
13.1. Exclusion of Damages; Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, GOODWILL, OR REVENUES OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, COVER, BUSINESS INTERRUPTION, AGGREVATED OR PUNITIVE DAMAGES IN CONNECTION WITH ANY CLAIM OF ANY NATURE, WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, ARISING UNDER THIS AGREEMENT, EVEN IF IT HAS BEEN GIVEN ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO STEPWORK UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. THE FOREGOING EXCLUSIONS AND LIABILITY LIMITS IN THIS SECTION 13.1 SHALL NOT APPLY TO DAMAGES OR LIABILITY RESULTING FROM CLAIMS OR OBLIGATIONS ARISING UNDER SECTIONS 5.2 (PROHIBITED USES), 9 (FEES AND PAYMENT), , OR 14 (INDEMNIFICATION).
13.2. General. The parties acknowledge and agree that the limitations of liability, disclaimer of warranties, and any exclusion of damages included in this Agreement represent an allocation of risk between the parties (including the risk that a remedy may fail of its essential purpose and cause consequential loss) which is reflected by the fees paid.
14.1. By Stepwork. Stepwork will defend, indemnify, and hold Customer and its respective officers, directors, and employees (“Customer Indemnified Parties”) harmless from and against any direct claims, demands, proceedings, investigations, or suits, brought by a third party alleging that Customer’s use of the Services in accordance with this Agreement infringes any third party intellectual property rights (each, a “Claim Against Customer”). Stepwork will indemnify Customer Indemnified Parties for any finally awarded damages or settlement amount approved by Stepwork in writing to the extent arising from a Claim Against Customer, and any reasonable attorneys’ fees of Customer associated with initially responding to a Claim Against Customer. Notwithstanding the foregoing, Stepwork will have no obligation under this Section 14.1 to the extent any Claim Against Customer arises from: (a) Customer’s use of the Services in combination with technology or services not provided by Stepwork, if the Services or use thereof would not infringe without such combination; (b) Customer Content; (c) Stepwork’s compliance with designs, specifications, or instructions provided in writing by Customer if such infringement would not have occurred but for such designs, specifications, or instructions; or (d) use of the Services by Customer after notice by Stepwork to discontinue use. If Customer is enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a Claim Against Customer, then Stepwork will, at Stepwork’s sole expense and option, either: (x) obtain for Customer the right to use the allegedly infringing portions of the Service; (y) modify the allegedly infringing portion of the Service so as to render it non-infringing without substantially diminishing or impairing its functionality; or (z) if Stepwork determines that the foregoing remedies are not commercially reasonable or possible, then Stepwork will terminate the applicable Order and issue a refund of prepaid fees covering the terminated portion of the applicable Service.
14.2. By Customer. Customer will defend, indemnify, and hold Stepwork, Stepwork’s Affiliates, and their respective officers, directors, and employees (“Stepwork Indemnified Parties”) harmless from and against any claims, demands, proceedings, investigations, or suits, brought by a third party arising out of (1) any Customer Content, or (2) Customer’s use of the Services in violation of this Agreement or applicable law (each, a “Claim Against Stepwork”). Customer will indemnify Stepwork Indemnified Parties for any finally awarded damages or settlement amount approved by Customer in writing to the extent arising from a Claim Against Stepwork, and reasonable attorneys’ fees of Stepwork associated with initially responding to a Claim Against Stepwork.
14.3. Conditions. The indemnifying party’s obligations under this Section 14 (Indemnification) are contingent on the indemnified party: (a) promptly providing written notice of the claim to the indemnifying party (provided that indemnifying party shall not be excused from its indemnity obligations for indemnified party’s failure to provide prompt notice except and then solely to the extent that the indemnifying party is materially prejudiced thereby); (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party); and (c) providing the indemnifying party, at the indemnifying party’s expense, all reasonable assistance in connection with such claim. The indemnified party may participate in the defense of the claim at its sole cost and expense. This Section 14 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy for, any type of claim or action described in this Section 14.
15.1. Publicity. Stepwork may, with Customer’s prior consent, disclose Customer as a customer of Stepwork, and may use Customer’s name and logo on the Site and in Stepwork’s promotional materials.
15.2. Federal Government Customers. This Section 15.2 applies if Customer is, or is a contractor to, a US government agency. The Services and any related documentation contain commercial computer software and documentation which are proprietary data belonging solely to Stepwork and its licensors. Pursuant to DFARS 227.7202 or FAR 12.212, as applicable, the U.S. Government’s right to use, reproduce or disclose the Services and any related documentation acquired under this Agreement is subject to the restrictions of this Agreement. The terms and conditions of this Agreement are fully applicable to the Government’s use and disclosure of the Services and any related documentation and shall supersede any conflicting terms or conditions. No license of any kind is granted in the case of acquisitions which contain or are subject to the clause FAR 52-227.19 COMMERCIAL COMPUTER SOFTWARE-RESTRICTED RIGHTS (JUNE 1987) or DFARS 252.227-7013 RIGHTS IN TECHNICAL DATA AND COMPUTER SOFTWARE (OCT 1988) or any other clause which purports to grant to the Government rights greater than, or additional to those, set forth in this Agreement.
15.3. Export Compliance. Each party shall comply with all applicable export control laws and regulations. Without limiting the foregoing, Customer is responsible for complying with any local laws which may impact Customer’s right to import, export or use the Services and Documentation.
15.4. Notices. Except where this Agreement permits notice via email, all notices provided under this Agreement must be in writing and sent via internationally recognized delivery service or registered mail. Notices sent via email will be deemed given one (1) business day after being sent; and notices sent via any other authorized delivery method will be deemed given five (5) business days after being sent. Notices must be addressed as follows: if to Stepwork, 2261 Market Street #4481, San Francisco, CA, 94114, and for notices permitted to be sent via email, to hello@stepwork.com; and, if to Customer, Attn: Legal at the billing address set forth on the initial Order, and for notices permitted to be sent via email, to the SysAdmin email address set forth on the initial Order. Customer may request notification of changes to the Policies via the email address above.
15.5. Assignment. Either party may assign this Agreement and any Orders in connection with a merger or similar transaction or to a company acquiring substantially all of its assets, equity, or business, without any requirement to obtain permission for such assignment; otherwise, neither party may assign this Agreement or any Orders to a third party without the advance written consent of the other party. Subject to the foregoing and notwithstanding any prohibitions on transferability under this Agreement, the assigning party shall notice the non-assigning party of any permitted assignment and this Agreement and any Orders will bind and inure to the benefit of the parties, their successors, and their permitted assigns.
15.6. Force Majeure. Except for Customer’s payment obligations hereunder, neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control. The party suffering from any such conditions shall use reasonable efforts to mitigate against the effects of such conditions.
15.7. Amendment; Waiver. Unless otherwise expressly stated herein, this Agreement and any Orders may be modified only by a written amendment or agreement executed by an authorized representative of each party, provided that Stepwork may on thirty (30) days’ notice to Customer amend any part of this Agreement without the consent of the Customer if such amendment is in the opinion of Stepwork required in order to reflect a change in applicable law or a change in the Services which is not prohibited by this Agreement, and such change does not increase the cost to the Customer of the Services. Stepwork may also make any other change to this Agreement upon sixty (60) days’ notice to the Customer. Stepwork may also establish operating policies, rules or guidelines from time to time which shall become a binding part of this Agreement upon their delivery to Customer. The waiver of any breach of any provision of this Agreement or of any Order will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach.
15.8. Enforceability. If any provision of this Agreement or any Order is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement or the relevant Order is to remain in effect as written. Notwithstanding the foregoing, if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this Agreement or any Order, the entire Agreement or the relevant Order will be considered null and void.
15.9. Governing Law. This Agreement and any Orders are governed by the laws of the State of California, and each party hereby consents to exclusive jurisdiction and venue in the Courts of the State of California, in the city of San Francisco for any dispute arising out of this Agreement or any Orders.
15.10. Entire Agreement; Conflict. This Agreement, together with the Policies and Schedules attached hereto, and any Orders, represents the entire agreement between Stepwork and Customer with respect to the Services Downloadable Stepwork applications or products expressly governed by a separate end- user license agreement presented at the time of download or use are not governed by this Agreement. During the electronic provisioning of the Services or Training Resources, any user agreement presented to a Customer Representative will be considered null and void, however, Customer Representatives will be required to individually acknowledge that certain information collected about them is subject to Stepwork’s Privacy Policy, as updated by Stepwork from time to time (a current version can be found at https://stepwork.com/privacy-policy) (“Privacy Policy”). In the event of any conflict between this Agreement and any Order, this Agreement will govern and control unless the Order expressly and specifically overrides this Agreement. With respect to any Services, terms and conditions included in the following items, whether submitted or executed before or after the Term start date, are null and void: (a) a Customer purchase order or similar document; (b) a Customer vendor registration form or online portal; and (c) any other contemporaneous or prior agreements or commitments regarding the Services or the other subject matter of this Agreement.
