Last Updated: 10/17/2024
These Terms of Service apply to new Order Forms (or renewals of existing Order Forms) effective on or after October 17, 2024. If you are an existing Customer and previously agreed to a version of our Terms of Service before October 17, 2024, these Terms of Service will go into effect upon the renewal date of your next Order Form.
Terms of Service
Welcome and thank you for using Stackline!
These Terms of Service (the “Terms”) govern your access to, and use of, any websites, products, and services (collectively, “Services”) provided by Fuelcomm, Inc. (“Stackline,” “we,” “our,” or “us”) and form a legally binding contract between you (“Customer,” “you,” or “your”) and Stackline. Stackline and Customer may be referred to individually as a “Party,” or collectively as “Parties.”
PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY ACCEPTING THESE TERMS, USING THE SERVICES, OR EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT INCORPORATES THESE TERMS (EACH AN “ACCEPTANCE”), YOU: (A) AGREE TO THESE TERMS ON BEHALF OF ANY ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT; AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE ANY PRODUCT OR RECEIVE ANY PROFESSIONAL SERVICES.
1. DEFINITIONS
1.1 “Affiliate” means any entity that controls, is controlled by or is under common control with a Party. For purposes of this definition, “control” shall mean at least fifty percent (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.
1.2 “Licensed Data” means any data provided by Stackline through the Services.
1.3 “Customer Content” means the content that Customer uploads or provides to the Service, including messages, product details, advertisements, images, photos, folders, data, text, and information about Customer’s products and services.
2. OUR SERVICES & LICENSES
2.1 Provision of Services. These Terms shall govern all Services identified in any online order, work order, statement of work, order form, or similar purchase agreement (each an “Order Form”). In the event of any conflict, discrepancy, or inconsistency between an Order Form and these Terms, the Order Form shall prevail.
2.2 License. Stackline grants Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 12.3) right to access and use its Services solely for the term set forth in each applicable Order Form.
2.3 Use Restrictions. Customer agrees not to: (a) copy, frame, mirror, modify, or prepare derivative works of the Services; (b) de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services; (c) interfere with any security-related features of the Services or the operation of the Services; (d) use any robot, spider, or similar device to copy or catalog any materials or information made available through the Services; (e) use, evaluate, or analyze the Services for the purpose of designing or otherwise creating any environment, program, or infrastructure, or any portion thereof, which performs functions similar to the functions performed by the Services; (f) monitor the Services’ performance or functionality, or for any other benchmarking or competitive purposes; (g) use the Services to violate any law or regulation; (h) use the Services to violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right; or (i) permit any third party to access the Services, use the Services in a service bureau context or otherwise provide services for a third party using the Services.
2.4 Unauthorized Use. Customer will make reasonable efforts to prevent any unauthorized use of the Services and immediately notify Stackline in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take all steps necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Stackline to prevent or terminate unauthorized use of the Services.
2.5 Professional Services. Stackline may agree to provide Customer with consulting, development, and other professional services in an Order Form. Unless otherwise specified in an Order Form, Stackline hereby retains all right, title and interest to any work product, improvements, modifications, inventions, and software developed or created pursuant to an Order Form, including all intellectual property rights therein and thereto. Subject to payment of all fees set forth in an applicable Order Form, Stackline hereby grants to Customer a limited, non-exclusive license to use, in conjunction with the Services, any deliverables delivered to Customer under such Order Form.
2.6 Shopper OS Activations Services. Stackline may agree to provide Customer with access to Services that (a) allow Customer to connect with participating consumers or other users of Stackline’s Services (“Users”) to market, promote, or sell Customer’s products and services; or (b) make certain Customer Content available to Users in connection with the agreed upon marketing and promotional opportunities (each, “Shopper OS Activations”). Customer hereby grants Stackline a worldwide, nonexclusive, sublicensable (including to Users), fully paid-up license to use, modify, copy, and distribute the Customer Content, the Customer’s name, logo, and trademarks (“Customer Marks”) as necessary to provide any Shopper OS Activations identified in any applicable Order Form, including distribution by Users via third-party channels. Customer represents and warrants that it has all necessary rights in and to the Customer Content to grant Stackline the license under these Terms. Customer reserves all rights in and to the Customer Content and Customer Marks. Customer represents and warrants that the Customer Content, and the use of the Customer Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any intellectual property right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Stackline or its Users to violate any law or regulation. Stackline does not guarantee that its Services will generate any sales of the Customer’s products or services. Stackline provides no guarantee as to the User’s content (including User generated reviews), or any third-party platforms and websites used in connection with a User’s marketing or promotional activity for Customer. Customer is solely responsible for confirming User’s purchase of any of the Customer’s products or services. Stackline assumes no liability for the Customer’s communication with Users. Customer is solely responsible for compliance with all applicable laws and regulations related to its products, including without limitation, any laws related to consumer protection.
3. CREATING ACCOUNTS
3.1 Registration and Security. To access most Services, you must register for an account. When you register for an account, you may be required to provide us with information about your organization or entity, such as an email address or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You agree that you will only allow the number of users authorized under your account to access the Service and any related tools, applications, information, and materials provided in connection with the Service. If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@stackline.com.
4. PAYMENT
4.1 Fees and Payment Terms. Customer will pay Stackline the fees and any other amounts owing under these Terms, plus any applicable sales, use, excise, or other Taxes, as specified in an Order Form. Unless otherwise specified in an Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Stackline reserves the right to suspend Customer access to Services in the event that Customer’s account becomes overdue and is not brought current within ten (10) days following notice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Stackline to collect any amount that is not paid when due. Amounts due from Customer under these Terms may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under these Terms are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
4.2 Taxes. Other than net income taxes imposed on Stackline, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from these Terms. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Stackline after all such Taxes are paid are equal to the amounts that Stackline would have been entitled to in accordance with these Terms as if the Taxes did not exist.
5. REPRESENTATIONS, WARRANTIES, AND DISCLAIMER
5.1 Mutual Warranties. Each party represents and warrants to the other that: these Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of these Terms; and the execution, delivery, and performance of these Terms does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
5.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, STACKLINE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY MATTER WHATSOEVER. STACKLINE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. STACKLINE DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES OR THAT THE SERVICES WILL BE ERROR-FREE, SECURE OR UNINTERRUPTED. THE SERVICES, LICENSED DATA, AND ANY OTHER CONTENT IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. STACKLINE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES.
6. TERM AND TERMINATION
6.1 Term. These Terms take effect upon your Acceptance and continue as long as an Order Form is in effect, unless sooner terminated in accordance with Section 6.2 (the “Term”).
6.2 Termination for Material Breach. Either Party may terminate these Terms if the other Party does not cure its material breach of these Terms within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 6.2 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. If Customer terminates these Terms in accordance with this Section 6.2, Stackline will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will termination relieve Customer of its obligation to pay any fees payable to Stackline for the period prior to the effective date of termination. If Customer fails to timely pay any fees, Stackline may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
6.3 Effect of Termination. If these Terms are terminated for any reason, (a) Customer will immediately cease all use of the Services, (b) Customer will pay to Stackline any fees or other amounts that have accrued prior to the effective date of the termination, and (c) any and all liabilities accrued prior to the effective date of the termination will survive.
6.4 Survival. The following provisions will survive the termination or expiration of these Terms for any reason: Sections 4, 5, 6.3, 6.4, 7, 8, 10, 11, and 12.
7. PROPRIETARY RIGHTS
7.1 Service Ownership. Except for those limited rights granted in Section 2, Stackline retains all right, title and interest in and to the Services, including all modifications, improvements, upgrades, and derivative works related thereto and all intellectual property rights therein. Customer agrees to, and does hereby assign all right, title, and interest it may have in the foregoing to Stackline. Except for the express rights granted in these Terms, Stackline does not grant any other rights, whether express or implied, to the Services or any other Stackline products, services, data, materials, or intellectual property rights.
7.2 Feedback. If Customer or any of its employees provides Stackline with any comments, suggestions or any other feedback regarding the Services, Stackline may use such feedback at its discretion, incorporate any suggested changes or modifications into its products and services and distribute such products and services without any obligation or recourse to Customer or any of its employees.
7.3 Licensed Data. Between the Parties, Stackline shall own all rights, title, and interest to any Licensed Data. If Customer distributes, displays or discloses the Licensed Data to any third party or make any other non-internal use of the Licensed Data, Customer will do so in compliance with all applicable laws and provide proper attribution to Stackline in a manner that informs viewers that the Licensed Data was generated by Stackline and provide a link to our website. Customer will discontinue any public disclosure of the Licensed Data immediately upon request from us. Customer may not commercially distribute, display, or disclose Licensed Data (e.g., resell or sublicense Licensed Data) without Stackline’s prior written consent. All Licensed Data is provided "AS IS", with no guarantee of completeness, accuracy, timeliness, or of the results obtained from the use of the Licensed Data.
7.4 Customer Content. Between the Parties, Customer shall own all rights, title, and interest in and to any Customer Content. Customer grants Stackline a non-exclusive, perpetual license to use, reproduce, perform, display, distribute and otherwise exploit such Customer Content to provide and improve the Service.
8. CONFIDENTIALITY
8.1 Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed 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 disclosure. Confidential Information of each Party shall include the terms and conditions of these Terms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information. The Receiving Party shall not use in any way its own account or the account of any third party, nor disclose to any third party any Confidential Information revealed to it by the Disclosing Party, except as expressly otherwise provided in these Terms. The Receiving Party shall take every reasonable precaution to protect the confidentiality of Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
9. STACKLINE INDEMNIFICATION
9.1 Stackline Indemnification. During the Term, Stackline will defend, indemnify, and hold harmless Customer from and against any and all claims, causes of actions, demands, lawsuits, or proceedings brought by a third party (each a “Claim,” or collectively, “Claims”) and any liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs (each a “Loss,” or collectively, “Losses”) arising out of allegations that the Services infringe or violate third party intellectual property rights, provided that Customer: (a) gives Stackline prompt written notice of the Claim; (b) grants Stackline sole and complete control over the defense and settlement of the Claim; (c) provides assistance in connection with the defense and settlement of the Claim as Stackline may reasonably request; and (d) complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Services). Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Stackline will have sole control over the defense and settlement of the Claim.
9.2 Exclusions from Obligations. Stackline will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Services are made to comply with designs, requirements, or specifications required by or provided by Customer, including pursuant to an Order Form, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Services in accordance with instructions provided by Stackline, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Stackline where such infringement or misappropriation would not have occurred absent such modification.
9.3 Limited Remedy. This Section 9 states Stackline’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Services.
10. CUSTOMER INDEMNIFICATION
10.1 Indemnification Obligations. Customer will defend, indemnify, and hold harmless Stackline and its Affiliates, officers, directors, employees, agents, successors, and permitted assigns (each an “Indemnitee”) from and against any and all actual or threatened Claims and Losses arising out of or related to: (a) Customer’s use of the Services, (b) Customer’s breach of any of the provisions of these Terms, c) Customer Content, or d) Customer’s products, services, or if applicable, Shopper OS Activations.
10.2 Indemnification Procedures. Customer, at its own expense, will defend any Claim and has the right to control the defense of such Claim, provided that Stackline, at its own expense, may engage separate counsel to participate in the defense of any Claim and Customer agree to cooperate fully with such counsel. Customer and its counsel agree to keep Stackline, and its counsel informed regarding the status of any Claim and cooperate fully with requests for information. Notwithstanding any other provisions of these Terms, Customer will not enter any Claim settlements which (a) adversely affect the rights of Stackline; or (b) impose liabilities or obligations on Stackline which will not be satisfied by Customer’s payment or performance upon entry of such settlement.
11. LIMITATIONS OF LIABILITY
11.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, STACKLINE AND ITS AFFILIATES WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF STACKLINE IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL STACKLINE AND ITS AFFILIATES TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, WARRANTY CLAIMS), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO STACKLINE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
11.3 Independent Allocations of Risk. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY STACKLINE TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE TERMS.
12. THIRD-PARTY LINKS, SERVICES, & WEBSITES
12.1 The Service may include information and content provided by third parties, including links to third-party websites, resources, and/or goods and services. Stackline is not responsible and will not be liable for any damages or losses caused by or relating to: (a) any content, advertising, products, or other materials on or available from such sites or resources, (b) the availability of or any errors or omissions in such websites or resources, or (c) any information handling practices or other business practices of the operators of such sites or resources. Your interactions with such third parties will be governed by the third parties’ own terms of service and privacy policies, and any other similar terms.
13. GENERAL TERMS
13.1 Use of Customer Name. Stackline may use Customer Marks for the purpose of identifying the Customer as a customer on Stackline’s website or other promotional materials.
13.2 Relationship. Stackline will be and function as an independent contractor (and not as the agent or representative of Customer) in the performance of these Terms.
13.3 Assignability. Neither Party may assign its right, duties, or obligations under these Terms without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed; provided, however, that a Party may assign these Terms without the other Party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning Party’s obligations under these Terms.
13.4 Subcontractors. Stackline may utilize a subcontractor or other third party to perform its duties under these Terms so long as Stackline remains responsible for all its obligations under these Terms.
13.5 Notices. Any notice required or permitted to be given in accordance with these Terms will be effective when sent in writing by electronic mail or certified or registered mail, return receipt requested, to Stackline at address set forth below or to Customer at any address associated with Customer’s account, with the appropriate postage affixed. Notices are deemed given two business days following receipt. Any notice sent by email will be deemed to have been received at the time shown in a delivery confirmation report generated by the sender’s email system which indicates that delivery of the email to the recipient’s email address has been completed.
Stackline
801 5th Avenue, Suite 2800
Seattle, WA 98104
Attn: General Counsel
13.6 Force Majeure. Stackline will have no liability for, or be considered to be in default under these Terms on account of any delay or failure to perform as required by these Terms as a result of any cause or condition beyond its reasonable control, including without limit any fire, explosion, pandemic, power blackout, earthquake, flood, severe storm, acts of God, strike, embargo, labor disputes, act of war, terrorism, or acts of regulatory or governmental agencies (“Force Majeure”).
13.7 Governing Law. These Terms will be interpreted under and governed by the laws of the State of Washington, U.S.A., without reference to its conflicts of law principles. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in King County, Washington in connection with any action arising out of or in connection with these Terms.
13.8 Modification of these Terms. We may revise these Terms, including changing, deleting, or supplementing with additional terms and conditions from time to time in our sole discretion, including to reflect changes in applicable law. We will post the revised terms on the Site with a “Last Updated” date. PLEASE REVIEW THESE TERMS ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE OUR SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we will not be liable to you or to any third party for any revision to the Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
13.9 Waiver. The waiver by either Party of any breach of any provision of these Terms does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
13.10 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect.
13.11 Headings. The headings contained in these Terms are for convenience and reference purposes only and shall not be deemed to affect in any way the meaning or interpretation of any provision of these Terms.
13.12 Entire Agreement. These Terms and any applicable Order Forms contain the entire agreement of the Parties with respect to the subject matter of these Terms and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.