1. INCORPORATION INTO ORDER
This Master Services Agreement (“MSA”), together with IAB terms, the Insertion Orders or other detailed orders (“Order Form”), constitute the entire agreement (“Agreement”) between the Customer signing the Order Form(“Customer“) and Stack Exchange, Inc. (“Stack"). By executing an Order Form , you indicate your assent to be bound by this Agreement. This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. These terms govern the purchase and use of a web page that is provided by Stack and includes Customer Content (as defined below) in the form and format provided by Customer (the “ Employer Branding Site.“ Any purchase of Banner Advertising is governed solely by the insertion order and the IBA Terms (with the governing law being New York) located at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf.
Subject to the terms and conditions of this Agreement, Stack grants Customer User(s) a non-exclusive, non-sublicensable and non-transferable license to access and use the Employer Branding site, subject to limitations as described herein, during the applicable Term. The Term will expire upon any termination of the Order Form. For the avoidance of doubt, no ownership to any product or service performed by Stack shall transfer to Customer under this Agreement unless explicitly stated in an applicable Order Form. User(s) - means collectively, a designated person who is permitted to access, store, retrieve or manage the Employer Branding site , on behalf of Customer.
3. USAGE TERMS
4. YOUR DATA
Customer is solely responsible for the development, the quality and accuracy of the Content that is uploaded by the Customer or its User to the Employer Branding site. Customer agrees that the content complies with this Agreement and any and all applicable laws and regulations and with Stack‘s content policy (available at: https://stackexchange.com/legal/content-policy ) and may be subject to disclosure upon lawful request by law enforcement authorities as required by law. When providing Content to us, you grant us a non-exclusive, non-sublicensable and non-transferable license to host, reproduce, modify and publicly display such Content solely for the purpose of delivering services in accordance with applicable Order Form(s) and for marketing and promotion of our services. No ownership in Content shall transfer to Stack and the license you grant us in providing Content shall expire upon Termination of this Agreement.
- Please note that any content or information you share publicly is governed by the terms described below in the section titled “Content Permissions, Restrictions, and Creative Commons Licensing,” and you should be aware that once you place content in the public sphere, you willingly give up some rights and control over such content.
- You are solely responsible for obtaining and maintaining any equipment or ancillary services needed to connect to or access the Network or otherwise use the Services, including without limitation modems, hardware, software, and long distance or local telephone service. You are solely responsible for ensuring that such equipment or ancillary services are compatible with the Services and Network.
- Some premium or additional features of Stack (including without limitation Stack Overflow for Teams) may require a payment obligation for access and use. You are solely responsible for ensuring that your payment obligations, if any, remain current and not in arrears. In the event Stack charges for features you will be clearly notified of the terms of any payment obligations and provided the opportunity to refuse such obligations before you incur any charges. Please note, however, that your refusal to accept payment obligations may result in your inability to access or use certain premium or additional features of Stack.
5. CONTENT PERMISSIONS, RESTRICTIONS, AND CREATIVE COMMONS LICENSING
Stack Overflow Content
All materials displayed or performed on the Stack’s Public Network, including but not limited to text, graphics, logos, tools, photographs, images, illustrations, software or source code, audio and video, and animations (collectively “Network Content”) (other than Network Content posted by individual “Subscriber Content”) are the property of Stack and/or third parties and are protected by United States and international copyright laws (“Stack Overflow Content”).
The Network is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international covenants, and other copyright laws. Other than as expressly set forth in the Public Network Terms of Service, you may not copy, modify, publish, transmit, upload, participate in the transfer or sale of, reproduce (except as provided in this Agreement), create derivative works based on, distribute, perform, display, or in any way exploit any of the Network Content, software, materials, or Services in whole or in part. You may download or copy the public Network Content, and other items displayed on the public Network for download or personal use provided that you maintain all copyright and other notices contained in such Public Content.
From time to time, Stack may make available compilations of all the Subscriber Content on the public Network (the “Creative Commons Data Dump”). The Creative Commons Data Dump is licensed under the CC BY-SA license. By downloading the Creative Commons Data Dump, you agree to be bound by the terms of that license.
Any other downloading, copying, or storing of any public Network Content (other than Subscriber Content or content made available via the Stack Overflow API) for other than personal, noncommercial use is expressly prohibited without prior written permission from Stack or from the copyright holder identified in the copyright notice per the Creative Commons License. In the event you download software from the public Network (other than Subscriber Content or content made available by the Stack Overflow API) the software including any files, images incorporated in or generated by the software, the data accompanying the software (collectively, the “Software”) is licensed to you by Stack or third party licensors for your personal, noncommercial use, and no title to the Software shall transfer to you. Stack or third party licensors retain full and complete title to the Software and all intellectual property rights therein.
You agree that any and all content, including without limitation any and all text, graphics, logos, tools, photographs, images, illustrations, software or source code, audio and video, animations, and product feedback (collectively, “Content”) that you provide to the public Network (collectively, “Subscriber Content”), is perpetually and irrevocably licensed to Stack on a worldwide, royalty-free, non-exclusive basis pursuant to Creative Commons licensing terms (CC BY-SA 4.0), and you grant Stack the perpetual and irrevocable right and license to access, use, process, copy, distribute, export, display and to commercially exploit such Subscriber Content, even if such Subscriber Content has been contributed and subsequently removed by you as reasonably necessary to, for example (without limitation):
- Provide, maintain, and update the public Network
- Process lawful requests from law enforcement agencies and government agencies
- Prevent and address security incidents and data security features, support features, and to provide technical assistance as it may be required
- Aggregate data to provide product optimization
This means that you cannot revoke permission for Stack to publish, distribute, store and use such content and to allow others to have derivative rights to publish, distribute, store and use such content. The CC BY-SA 4.0 license terms are explained in further detail by Creative Commons, and the license terms applicable to content are explained in further detail here. You should be aware that all Public Content you contribute is available for public copy and redistribution, and all such Public Content must have appropriate attribution.
As stated above, by agreeing to these Public Network Terms you also agree to be bound by the terms and conditions of the Acceptable Use Policy incorporated herein, and hereby acknowledge and agree that any and all Public Content you provide to the public Network is governed by the Acceptable Use Policy.
6. TERM; TERMINATION
Term. This Agreement will commence on the later of the execution dates by Stack and Customer and remain in effect for one (1) year, unless otherwise terminated as authorized herein.
Termination for Cause. Either Party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice in the event such other party materially breaches any or otherwise fails to perform any of its material obligations set forth in this Agreement and such breach or failure is not cured within the notice period; or (ii) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.
Fees. Stack shall invoice Customer upon execution of the Agreement. Unless otherwise specified in an Order Form, payments shall be due thirty (30) days from the date of invoice and shall be made in US Dollars. Except for any taxes due in connection with Stack’s income derived from this Agreement, Customer will bear responsibility for any and all taxes due in connection herewith.
Late Payment. Disputes concerning invoices must be raised in writing to Stack within ten (10) days of receipt of the applicable invoice. If any undisputed invoiced amount is not received by Stack by the due date, then without limiting its rights or remedies Stack may: (a) charge interest at the rate of three percent (3%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; (b) immediately suspend or terminate its performance; and (c) charge Customer for all reasonable expenses (including attorneys’ fees and costs) incurred by Stack in collecting such amounts.
Each party (“Disclosing Party”) may disclose to the other (“Receiving Party”) certain confidential and proprietary business, technical, or financial information in connection with the services provided under this Agreement, including but not limited to, specifications, pricing, methods and processes, information marked “proprietary” or “confidential” or which by its nature would reasonably be understood to be confidential (the “Confidential Information”). The Receiving Party agrees not to: (i) use the Confidential Information for any purpose except as expressly provided in this Agreement; (ii) provide access to the Confidential Information to any third party, except in consultation with financial or legal advisors as such may relate to rights and obligations contained in this Agreement and who are under a duty of confidentiality no less than as required hereunder. Confidential Information shall not include information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was rightfully in the Receiving Party’s possession without restriction prior to disclosure by the Disclosing Party; (c) is rightfully received without restriction from a third party; or (d) was independently developed by the Receiving Party without reference to the Confidential Information. The Receiving Party may make disclosures required by law or court order provided the Receiving Party uses diligent efforts to promptly notify the Disclosing Party in writing of such requirement to disclose and cooperate fully with the Disclosing Party in protecting against or minimizing any such disclosure or obtaining a protective order.
9. DISCLAIMER OF WARRANTIES
ALL PRODUCTS ARE PROVIDED “AS IS” AND STACK EXCHANGE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY.
Stack will defend Customer against any claim brought against it by a third party alleging that Product (if used in full compliance with this Agreement) infringes a United States or European Union patent or registered copyright ("IP Claim") and Stack will indemnify Customer and hold Customer harmless against any damages and costs finally awarded by a court of competent jurisdiction, or agreed to settlement by Stack (including reasonable attorneys' fees) arising out of such a Claim, provided that claims are not based on whole or in part on Content.
Customer will defend, indemnify and hold Stack harmless against any third party claim that any Content infringes a third party intellectual property right or applicables laws.
As a condition of receiving an indemnification under this Agreement, the party seeking indemnification will provide the other party with: (a) a prompt written notice of the claim; (b) complete control over the defense and settlement of the claim (provided that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim); and (c) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
11. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS OPPORTUNITY, PROFITS OR GOODWILL. THE FOREGOING SHALL APPLY REGARDLESS OF THE LEGAL THEORIES AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE NET AMOUNT PAID OR PAYABLE TO STACK EXCHANGE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO (1) ANY AMOUNTS OWED BY YOU PURSUANT TO AN ORDER FORM; (2) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
The parties are independent contractors and no employment, agency, partnership or joint venture is created hereunder. All notices in connection with this Agreement must be in writing, and will be deemed given upon receipt by the party to whom the notice is directed, if such notice is addressed to the electronic or mailing address set forth on the applicable Order Form. Both parties agree that this agreement may be electronically signed. The parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, whether oral or written. The section headings contained in this Agreement are for convenience only and shall not be considered in its interpretation. No amendment to, or waiver of any provision of this Agreement will be effective unless in writing and signed by an authorized representative of each party. In the event of conflict between this Agreement and an Order Form, the Order Form shall prevail. In the event of conflict between an Order Form or this Agreement and a Purchase Order, Order Form and this Agreement shall control. Customer and Stack agree that no so-called “shrink wrap” or “click wrap” license terms shall apply to any Products licensed to Customer hereunder. Neither party may assign this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld or delayed provided that either party may assign this Agreement without consent to a successor to all or substantially all of its assets of business. Any purported assignment in violation of the foregoing will be void. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable. Each person signing this Agreement represents that they are duly authorized and have the legal capacity to execute and deliver this Agreement. Each party represents to the other that the execution and delivery of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. This Agreement and the relationship between Customer and Stack are governed by the laws of the state of New York without regard to its conflict of law provisions. Each party hereby consents to personal jurisdiction in any action brought in any court, federal or state, within the State of New York.