StackHawk VIBE Terms of Service

These StackHawk VIBE Terms of Service are entered into by and between StackHawk, Inc., a Delaware corporation having its address at 1580 N. Logan St Ste 660, PMB 36969, Denver, CO 80203 (“we,” “us,” or the “Company”), and the person, company or other legal entity accepting these terms and conditions (“you” or “Customer”).

This StackHawk Terms of Service sets forth the terms and conditions that govern your access to and use of the Solution (as defined herein below). “Order” means the online ordering process on the StackHawk website. These StackHawk Terms of Service, together with any Orders entered into by you and Company, are referred to collectively as the “Agreement.” Customer will provide true, accurate, current and complete information as prompted by Company’s registration process, and maintain and promptly update such information to keep it true, accurate, current and complete.

Customer represents and warrants that (a) Customer has read, understands, and agrees to be bound by this Agreement; (b) the person entering into this Agreement has the authority to enter into this Agreement on behalf of the Customer, and to bind Customer to this Agreement; and (c) Customer is not barred from using the Solution under the laws of the United States, its place of residence or any other applicable jurisdiction.

Please review the Agreement carefully before accessing or using the Solution (as defined herein below). By accessing or using any Solution or by accepting this Agreement (whether by clicking a box that indicates acceptance or by executing an Order), Customer agrees to all of the terms and conditions of this Agreement. If Customer does not agree to all of the terms and conditions of this Agreement, Customer must not access or use the Solution.

1. SOLUTION.

1.1 Description of Solution. Company’s VIBE software and hosted software DAST service (the “Services”) enables end users to scan their software applications and application programming interfaces for certain known vulnerabilities. The Services includes software that is installed locally by you (“Software”); for avoidance of doubt, references to “Services” include “Software.”  Company also shall make available to you those user guides, documentation and training materials regarding the Services that it makes generally available to its customers (the “Documentation”). The Software, the Services and the Documentation are referred to herein collectively as the “Solution.” 

1.2 Scan Results. Scan results provided by the Services are based on your configuration of the Service and your IT environment, applications, and services and information provided by you, including information related to the user’s data sets, software framework and identification of the user’s own software applications and application programming interfaces, as well as on generally known security vulnerabilities and accepted coding practices.  Company does not guarantee, represent or warrant that the Solution will identify or properly classify all potential vulnerabilities or threats.

1.3 Third-Party Products and Services. You may use, or Company may enable or allow access to products, services and web sites provided by other persons or entities, including the products and services available through the Services and other third-party web sites, products and services (each, a “Third-Party Product”). You are solely responsible for entering into and complying with any contractual agreement or other terms and conditions that are required by the provider of any Third-Party Product. Company does not make any representation regarding any Third-Party Product.  Company shall have no obligation or liability relating to any Third-Party Product.  Company may allow an integration or other link or connection to a Third-Party Product to enable the Services to receive and send data or commands between the Services and the Third-Party Product (“Integration”) in accordance with the Documentation, subject to the usage and other limitations set forth in an Order, the Documentation, or an addendum to this Agreement .   Company provides Integrations on an “as-is” basis.

2. USE OF THE SOLUTION.

2.1 Rights to Use the Solution. Company shall provide remote access to the Solution. Subject to your compliance with the Agreement (including payment of all applicable fees to Company), Company grants you a personal, non-assignable, non-transferable, non-sublicensable, non-exclusive right to: (a) install and operate Software provided by Company only in accordance with the Documentation in order to access and use the Solution, and (b) access and use the Solution, in all cases, for the sole purpose of enabling you to use the Solution during the term of the applicable Order (defined below in this Agreement) to scan your proprietary software and associated application programming interfaces.

2.2 Customer’s Responsibilities & Restrictions. Customer shall (a) use the Solution only in accordance with this Agreement and all applicable laws and regulations; (b) be solely responsible and liable for the use of the Solution by all users in compliance with this Agreement; and (c) notify Company promptly of any unauthorized access or use of the Solution known to Customer. Customer is responsible for any breach of the Agreement by its users.  Customer shall not, and it shall not permit, assist, authorize or encourage any third party to: (a) license, sell, rent, lease, transfer, assign, reproduce, copy, distribute, republish, host or otherwise commercially exploit Solution or any portion of Solution, or include the Solution in a service bureau or outsourcing offering, or otherwise make the Solution available to, or use any Solution for the benefit of, anyone other than Customer; (b) modify, translate, adapt, merge or make derivative works of any part of the Solution; (c) disassemble, decompile, reverse compile or reverse engineer any part of the Solution except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) access Solution to benchmark performance or in order to build a similar or competitive website, application or service; (e) permit direct or indirect access to or use of any Services in a way that circumvents any limitation or restriction on usage; and (f) remove, alter, obscure or destroy any copyright, trademark, service mark or other proprietary rights notices accompanying or contained on or in Solution. Any future release, update or other addition to Solution shall be subject to the Agreement.

2.3 Updates. You understand that Solution is evolving and Company may change the Solution and its features and functionality. As a result, Company may require you to accept updates to Software that you have installed on your computer. You acknowledge and agree that Company may update Solution without notifying you. 

2.4 Affiliates. “Affiliate” means any entity that controls, is controlled by or is under common control with a party. For purposes of this definition, “control” means at least 50% of the capital, assets, voting stock, profits, interests, or similar participation rights are owned or controlled, directly or indirectly by an entity under this definition. 

3. PROPRIETARY RIGHTS.

3.1 Solution.  You agree that Company and its suppliers own all rights, title and interest in and to the Solution. Company reserves all rights not expressly granted to you in the Agreement.

3.2 Data. You own the data you upload or transmit to the Services (“Your Data”). You agree that Company and our subcontractors whom we engage to provide the Solution may use, reproduce, and modify Your Data for the purposes of operating and providing the Solution. Company may collect information about your use of the Solution, analyze Your Data, and aggregate such information and analysis with data and information provided by third parties or produced by Company (the “Aggregated Data”).  We may share Aggregated Data with third parties but we will not attribute any information or analysis in the Aggregated Data to you or your users. 

3.3 Feedback. You may submit ideas, suggestions, documents, and/or proposals regarding the Solution to Company through its suggestion, feedback, wiki, forum or similar pages (“Feedback”). You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Solution and/or Company’s business.

4. USER CONDUCT.

You agree that you will not, under any circumstances:

4.1 Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with any Solution;

4.2 Interfere with or damage any Solution, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;

4.3 Modify or cause to be modified any files that are a part of Solution;

4.4 Disrupt, overburden, or aid or assist in the disruption or overburdening of: (a) any computer or server used to offer or support the Solution; or (b) the enjoyment of Solution by any other person;

4.5 Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial of service attacks upon any Solution, or other attempts to disrupt Solution or any other person’s use or enjoyment of Solution;

4.6 Attempt to gain unauthorized access to any Solution, accounts registered to others, or to the computers, servers or networks connected to the Solution by any means other than the user interface provided by Company, including, but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of Solution;

4.7 Access, tamper with or use non-public areas of the Solution, Company’s computer systems, or the technical delivery systems of Company’s providers;

4.8 Attempt to probe, scan, or test the vulnerability of any Company system or network, or breach any security or authentication measures;

4.9 Disrupt or interfere with the security of, or otherwise cause harm to, Solution, systems, resources, accounts, passwords, servers or networks connected to or accessible through Solution or any affiliated or linked sites; or

4.10 Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Company or any of Company’s providers or any other third party (including another user) to protect Solution.

5. FEES AND PAYMENT TERMS.

The following clauses set forth the terms applicable to your subscription to the Solution. You acknowledge that by subscribing to the Solution, your subscription: is subject to automatic renewal; will continue until you cancel the subscription; and is subject to automatic charges on your method of payment.

5.1 Fees.

5.1.1 Pricing. You must pay all fees related to your subscription (“Subscription Fees”). Fees are shown in your Order or, if no Order was signed, on our website’s pricing page (“Price List”). Discounts only apply to the original amounts and period listed in your initial Order.

5.1.2 Billing Cycle. If you signed an Order, fees start on the first day of the Subscription Period listed in your Order, or if you did not sign an Order, fees start on the date you begin using the service (the “Commencement Date”). To the extent permitted by applicable law, subscriptions to the Solution automatically renew for your chosen subscription period until you cancel.

5.1.3 Usage-Based Fees. If your subscription includes usage-based Fees, you acknowledge that such Fees are set based on your expected use. Company may check your usage at any time. You agree to help with these checks by supplying any requested information. If your usage is higher than what you’ve paid for, Company may charge the credit card on file for the extra amount or ask you to promptly pay the difference. Company may suspend your service if payment isn’t made.

5.1.4 Upgrades and Add-Ons. You cannot decrease quantities or downgrade your subscription during the current period. However, you can buy more rights, add new features, or upgrade at any time by paying the current fees. If you upgrade, the fees for these upgrades are prorated to cover the remaining subscription period.

5.1.5 Changes and Cancellation. All payments are non-refundable unless this Agreement specifies otherwise. To avoid being charged for the next Subscription Period, you must cancel your subscription before the end of the current Subscription Period. Any changes you make to your subscription will take effect at the start of the next Subscription Period.

5.2 Price Changes.

5.2.1 Fee Increases. Company can change Subscription Fees or the Price List any time after your service begins, including charging for features that were previously free. Price changes won’t affect you during your then-current Subscription Period.

5.2.2 Notice of Changes. Company will give you notice in writing of an upcoming change in subscription pricing prior to the end of the then-current Subscription Period. If you disagree with any of the proposed price changes, you may cancel your subscription. You must cancel your subscription before the then-current Subscription Period to avoid being billed for the next Subscription Period. For clarity, notice will not be provided for fees for upgrades or new features added during the current Subscription Period. Such Fees take effect immediately upon purchase, as stated in Section 5.1.4.

5.3 Payment.

5.3.1 Late Payments. If any invoiced amount is not received by the due date, Company may, upon at least ten (10) days’ prior notice and without limiting any other rights and remedies, suspend provision of the Solution to Customer until such amounts are paid in full.

5.4 5.3.2 Credit Card Payments. You must provide Company with a valid credit card (e.g., Visa, MasterCard or any other issuer accepted by us) so that we can charge you the Subscription Fees. Company will automatically charge your credit card on the invoice due date unless you cancel your subscription prior to such date. By providing us with your credit card number and payment information, you agree that Company is authorized to submit charges to your chosen payment method without further authorization from you, until you notify us that you wish to change your payment method.

5.5 Taxes. Subscription Fees are exclusive of applicable taxes. Customer is required to pay and bear any sales, use, value-added, goods and services, withholding, or similar taxes or duties, whether domestic or foreign, related to the transactions under this Agreement, other than taxes based on the income of Company.

5.6 Disputes. Unless otherwise provided by the applicable payment processor or payment platform used in connection with your payment for Services, you must notify us in writing within seven (7) days after an invoice from us or after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: 1580 N. Logan St Ste 660,
PMB 36969, Denver, CO 80203, with electronic copies of such notice delivered to [email protected].

6. CONFIDENTIALITY.

6.1 Definition. “Confidential Information” means all information disclosed or made available by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure. Customer’s Confidential Information includes Your Data. Company’s Confidential Information includes the Solution and pricing for Company’s products and services, including the Solution. Confidential Information of each party includes the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

6.2 Protection of Confidential Information. The Receiving Party shall (a) not use any Confidential Information of the Disclosing Party for any purpose other than to perform obligations or exercise rights under this Agreement, (b) not disclose any Confidential Information of the Disclosing Party to any third party without the Disclosing Party’s prior written consent, except as otherwise permitted by this Section, (c) use the same degree of care to protect the Confidential Information of the Disclosing Party that the Receiving Party uses to protect the confidentiality of its own like confidential information (but not less than reasonable care), and (d) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose the terms of this Agreement to its legal counsel and accountants, and to its current and prospective investors and financing sources, and their respective legal counsel and accountants, and the Receiving Party shall be responsible for the compliance of such entities with this Section 6.

6.3 Compelled Disclosure. The Receiving Party may preserve and disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so or in a good faith belief that such preservation or disclosure is reasonably necessary to comply with legal process or protect the rights, property or personal safety of the public.  The Receiving Party shall give the Disclosing Party prompt notice of the compelled disclosure (to the extent legally permitted). If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil or criminal claim, action or proceeding to which the Disclosing Party is a party, the Disclosing Party shall reimburse the Receiving Party for its reasonable costs of compiling and providing secure access to that Confidential Information. 

7. INDEMNIFICATION.

You agree to indemnify and hold Company, its Affiliates, officers, employees and agents harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or relating to a third party’s claim relating to: (a) Your Data or your provision thereof to Company, or (b) the use of the Solution for any purpose other than the Authorized Purpose.

8. DISCLAIMERS.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SOLUTION IS AT YOUR SOLE RISK, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 8 (WARRANTY AND DISCLAIMERS), THE SOLUTION IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION 8 (WARRANTY AND DISCLAIMERS) COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOLUTION, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES ARISING OUT OF OR RELATING TO ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGSEMENT.

COMPANY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT: (A) THE SOLUTION WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF SOLUTION WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOLUTION WILL BE ACCURATE OR RELIABLE; OR (D) THE SERVICES WILL DETECT, FLAG OR OTHERWISE IDENTIFY ALL POTENTIAL THREATS, VULNERABILITIES AND SECURITY ISSUES RELATED TO YOUR SOFTWARE APPLICATIONS AND APPLICATION PROGRAMMING INTERFACES. NO ADVICE OR INFORMATION, INCLUDING RECOMMENDED VULNERABILITY FIXES, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH THE SOLUTION WILL CREATE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY. COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY DAMAGE TO YOUR PRODUCTION SOFTWARE APPLICATIONS, SOFTWARE SERVICES, OR APPLICATION PROGRAMMING INTERFACES, OR ANY LOSS OF DATA, RESULTING FROM YOUR USE OF THE SOLUTION.

9. LIMITATION OF LIABILITY.

9.1 Disclaimers. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SOLUTION OR THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY.

9.2 Cap on Liability. COMPANY’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SOLUTION OR THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY SHALL AT ALL TIMES BE LIMITED TO DIRECT DAMAGES OF NO MORE THAN $100. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9.3 Basis of the Bargain. THE DISCLAIMERS AND LIMITATIONS OF DAMAGES SET FORTH IN THIS SECTION 9 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.

10. TERM AND TERMINATION.

10.1 Term. This Agreement commences on the date that Customer first accepts this Agreement (the “Commencement Date”), and continues until all Orders issued hereunder have expired or have been terminated. The initial subscription period for the Solution shall commence on the date identified in the Order and shall continue for that initial time period as specified in the applicable Order (the “Initial Subscription Period”). Except as otherwise specified in an Order, subscriptions will automatically renew for additional, successive periods equal to the duration of the Initial Subscription Period, unless either party gives the other notice of non-renewal at least twenty (20) days before the end of the relevant subscription period (each, a “Renewal Subscription Period”). The Initial Subscription Period plus any applicable Renewal Subscription Period for that Order are referred to herein as the “Subscription Period.” If you subscribed through the StackHawk website, you must cancel your subscription prior to the end of the then-current Subscription Period.

10.2 Termination. A party may terminate an individual Order or this Agreement for cause (a) upon thirty (30) days prior written notice to the other party of a material breach of the individual Order or the Agreement if such breach is curable and remains uncured at the expiration of such period, (b) immediately upon written notice to the other party of a material breach of the individual Order or the Agreement by such other party that is not curable, or (c) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) any amounts owed to Company under any Order or this Agreement before such termination or expiration will be immediately due and payable by Customer, (b) all rights granted to the Solution in this Agreement will immediately cease to exist, (c) all outstanding Orders shall immediately terminate, and (d) Customer must promptly discontinue all access to and use of the Solution. The following provisions shall survive any expiration or termination of this Agreement: Sections 1.3 (Changes), 2.2 (Customer Responsibilities & Restrictions), 3 (Proprietary Rights), 4 (User Conduct), 5 (Fees and Payment Terms), 6 (Confidentiality), 7 (Indemnification), 8 (Disclaimers), 9 (Limitation of Liability), 10.3 (Effects of Termination), 11 (Governing Law and Dispute Resolution) and 12 (General Terms). You understand that any termination of Services may involve deletion of Your Data associated therewith from our live databases. Company will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Data.

11. GOVERNING LAW AND DISPUTE RESOLUTION.

11.1 Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Colorado without regard to any conflict of laws principles that would require the application of the laws of another jurisdiction. The parties further acknowledge and confirm that the selection of the governing law is a material term of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

11.2 Venue. Any judicial proceeding arising out of or relating to this Agreement or the relationship of the parties, including without limitation any proceeding to enforce this section, or for preliminary injunctive relief shall be brought exclusively in a court of competent jurisdiction in the county of Denver, Colorado (the “Enforcing Court”). By execution and delivery of this Agreement, each party expressly and irrevocably consents to the exclusive jurisdiction of the Enforcing Court and waives any objection to the personal jurisdiction, venue and convenience of the Enforcing Court. Each party shall pay their own expenses in connection with the resolution of Disputes pursuant to this section, including attorneys’ fees.

11.3 Waiver. IN THE EVENT OF ANY DISPUTE BETWEEN THE PARTIES, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY, AND HAVING HAD AN OPPORTUNITY TO CONSULT WITH COUNSEL, WAIVE ALL RIGHTS TO TRIAL BY JURY, AND AGREE THAT ANY AND ALL MATTERS SHALL BE DECIDED BY A JUDGE WITHOUT A JURY TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. In the event of any lawsuit between the parties arising out of or related to this Agreement, the parties agree to prepare and to timely file in the applicable court a mutual consent to waive any statutory or other requirements for a trial by jury.

12. GENERAL TERMS.

12.1 Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit Solution or send Company e-mails, or whether Company posts notices on Solution or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.

12.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may assign or transfer its rights and obligations hereunder to any of its Affiliates, or to any successor in interest of any business associated with the Solution.

12.3 Force Majeure. Neither party shall be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

12.4 Modification. This Agreement will not be modified or amended except in a writing signed by authorized representatives of both Parties, except that Company may update or amend documents incorporated into the Agreement with a hyperlink or where such documents are referenced.

12.5 Notice. You may give notice to Company by delivering notice to both: (a) 1580 N. Logan St Ste 660, PMB 36969, Denver, CO 80203 and (b) [email protected]. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

12.6 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.7 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.

12.8 Export Control. You may not use, export, import, or transfer Solution except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Solution, and any other applicable laws. In particular, but without limitation, Solution may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Solution, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Solution for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

12.9 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. In the event of any conflict between the terms and conditions of these StackHawk Terms of Service and the terms and conditions of an Order, precedence will be given in the following order: (a) the terms and conditions of an Order but solely to the extent that the Order expressly states that the parties’ intent is to modify the terms and conditions of these StackHawk Terms of Service, (b) the terms and conditions of these StackHawk Terms of Service, and (c) any terms and conditions of an Order other than the terms and conditions covered by subsection (a).

12.10 Acknowledgment. YOU ACKNOWLEDGE, IN ENTERING INTO THIS AGREEMENT, THAT YOU HAVE HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND THAT YOU HAVE READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT WILL NOT BE CONSTRUED AGAINST EITHER PARTY BY REASON OF THE DRAFTING OR PREPARATION OF THIS AGREEMENT.