Strike Force Terms & Conditions

Strike Force
Terms and Conditions

The following comprises the “Strike Force Terms and Conditions” as of April 05, 2012.

1. Definitions

1.1. “Agreement” retains the definition as defined in the relevant Strike Force Agreement.

1.2. “Customer“, “You“, or “Your” means the company, other legal entity, and affiliates of that company or entity for which you are accepting the Agreement and is specified in the relevant Strike Force Agreement.

1.3. “Stone Cobra” means the party identified as Stone Cobra, Inc., in the relevant Strike Force Agreement.

1.4. “Partners” means DB Kay & Associates, Ant’s Eye View, or any other organization partnered with Stone Cobra, identified to Customer as a Stone Cobra Partner and assists in their capacity as consultants to deliver services under the Agreement.

1.5. “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, licenses, and ownership relating to industrial property rights, design rights, database rights, patents, copyrights, trademarks (registered or unregistered), service marks (registered or unregistered), domain name rights, trade dresses, trade secrets, trade names, know-how, and all similar rights of every type that may exist now or in
the future in any jurisdiction, including without limitation all applications and registrations.

1.6. “Stone Cobra Technology” means software, materials, formats, interfaces, information, data, content, including Stone Cobra proprietary information, technology and Intellectual Property Rights used by Stone Cobra or provided to Customer in connection with the Strike Force Services.

1.7. “Confidential Information” means: (a) the Stone Cobra Technology; (b) the Agreement; and (c) any business or technical information of Stone Cobra, Partners, or Customer, including, but not limited to, any information relating to Stone Cobra’s, Partners’, or Customer’s product plans, designs, costs, product prices, finances, marketing plans, business opportunities, personnel, research, development or know-how which is either designated by the disclosing party as proprietary or confidential information (either in written, oral, or electronic format). Confidential Information does not include information that: (a) is or becomes public through no fault or breach by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written
approval of the disclosing party.

1.8. “Hosting Services” means hardware, networking, and software application hosting and the necessary supporting services provided to Customer by Stone Cobra. Customer understands that Stone Cobra utilizes third parties to deliver portions of the Hosting Services.

1.9. “Your Content” means content (software including machine images, data, text, audio, video, images, or other content, collectively “Content”) you or any End User (a) run on the Hosting Services, (b) cause to interface with the Hosting Services, or (c) upload to the Hosting Services under your account or otherwise transfer, process, use, or store in connection with your account. Your Content also includes any Content that You request Stone Cobra to install, run, interface, upload, use, or store on Your behalf.

1.10. “End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Hosting Service under Your account.

1.11. “Strike Force Services” means consulting, training, development, support, or other services, excluding Hosting Services provided by Stone Cobra or Partners to Customer according to the scope and terms set forth in this Agreement.

1.12. “Routine Services” means pre-defined, recurring, in-scope Strike Force Services that are performed at regular intervals throughout the Strike Force Services delivery period. Routine Services have a predetermined Service Complexity Rating or delivery unit and contribute to the overall Strike Force Service Velocity.

1.13. “Partner Services” means the services provided by organizations other than Stone Cobra in their role as Partners providing consultation services.

1.14. “Service Request” means an individual request for Strike Force Services submitted during the period of Strike Force Services delivery by Customer or identified by Stone Cobra or Partners and is specified as in-scope according to the Agreement.

1.15. “Critical Service Request” means a Service Request that is identified by Customer, Stone Cobra, or Partners as critical and meets one of the following criteria:

  1. Technical issues which prevent access or use of the system for a majority of users.
  2. Technical issues which over time have caused the system to have a significant amount of stale or inaccurate data.
  3. Business issues which are vital to the continued support of the business initiative or business process and have an emergency need for resolution
  4. Business issues or enhancements which are backed by a business case demonstrating a greater than $100,000 quarterly savings directly associated with the Service Request.

1.16. “Service Complexity Rating“, or “SCR“, means a complexity rating applied to a Strike Force Service or Service Request by Stone Cobra or Partners. SCRs are used as a scale of measurement for some types of Service Requests and this measurement may be used to define limits in the Agreement.

1.17. “Strike Force Service Velocity” means the rate at which Strike Force Services and Service Requests are delivered to Customer. Strike Force Service Velocity is typically measured by quantity of services at a specific Service Complexity Rating per month. For services where the SCR does not apply, Strike Force Service Velocity may also be measured as quantity of delivery units per month where the delivery unit is specified in the Agreement. Strike Force Service Velocity is a major factor in determining the fees for the Strike Force Services and is therefore specified with the Strike Force Services in the Agreement.

1.18. “Intensive Services Period” means the period of time during Strike Force Services where the Strike Force Service Velocity is specified to be at a faster rate than the regular service delivery period. The Intensive Services Period is an optional component of the Strike Force Services specified in the Agreement and is intended to accommodate an initial backlog of work such as initial system implementation, accumulated service requests, or other relevant services.

1.19. “Stone Cobra Resource“, or “Stone Cobra Resources“, means the Partners, employees, and contractors of Stone Cobra that are assigned by Stone Cobra to provide the Strike Force Services.

1.20. “Customer Delay” means postponements, deferrals, stoppages, or lack of responsiveness on the part of the Customer to deliver information, make decisions, provide resources, attend meetings, or fulfill other required actions that are needed for the efficient delivery of the Strike Force Services.

1.21. “Stone Cobra Holidays” means any typical business day (Monday, Tuesday, Wednesday, Thursday, or Friday Pacific time zone) during which Stone Cobra is closed for business. Stone Cobra Holidays are specified on the Stone Cobra website and do not necessarily coincide with United States federal holidays.

1.22. “Business Hours” means 8:00 am to 5:00 pm Pacific time-zone, Monday through Friday, excluding Stone Cobra Holidays. When referring to a unit of measurement, a Business Hour is one hour of time between the hours of 8:00 am and 5:00 pm Pacific time-zone. As an example, 4:30 pm plus one (1) Business Hour is 8:30 am on the following Business Day.

1.23. “Business Days” means any typical business day (Monday, Tuesday, Wednesday, Thursday, or Friday Pacific time zone) during which Stone Cobra is open for business, excluding Stone Cobra Holidays. When referring to a unit of measurement, one (1) Business Day refers to the same time-of-day on one (1) day subsequent to the reference day where the subsequent day must also be a Business Day. As an example, 2 pm on Friday plus one (1) Business Day is 2 pm on Monday (as long as Monday is not a Stone Cobra Holiday).

1.24. “24×7” or “24×7×365” means twenty-four (24) hours a day, seven (7) days a week, three hundred and sixty-five (365) days a year which results in a continuous period of time.

1.25. “Service Level Agreement“, or “SLA“, means the performance measurement against which the Strike Force Services are measured. Standard Service Level Agreements are defined in the Strike Force Terms and Conditions. Service Level Agreements are a participating factor to the Strike Force Services fees and Customer understands that modifying the standard Service Level Agreements may have a material impact to the Strike Force Services fees.

1.26. “Hosting Service Level Agreement“, or “Hosting SLA“, means the performance measurement against which the Hosting Services are measured. Standard Hosting Service Level Agreements are defined in the Strike Force Terms and Conditions. Service Level Agreements are a participating factor to the Hosting Services fees and Customer understands that modifying the standard Hosting Service Level Agreements may have a material impact to the Hosting Services fees.

1.27. “Written Approval” means Customer’s authorization for Stone Cobra to modify the Strike Force Services and thereby modify the Agreement in the circumstances defined herein. If the Written Approval to modify Strike Force Services results in a modification to the Fees and Payment Schedule defined in the Agreement, Stone Cobra shall provide the updated Fees and Payment Schedule to Customer.

2. Performance of Strike Force Services

2.1. Performance. Stone Cobra agrees to perform the Strike Force Services in a good and workmanlike manner by Stone Cobra Resources with the commensurate level of skill. Since the Strike Force Services span a variety of skills, it is Stone Cobra’s right and responsibility to assign the appropriate Stone Cobra Resources throughout the term of service delivery. Customer understands that it is a valuable part of the Strike Force Services to utilize a variety of Stone Cobra Resources in various capacities. If Customer is not satisfied with the quality of the services provided, Customer may request to reassign a Stone Cobra Resource at any time throughout the term of the Strike Force Services.

2.2. Customer Resources. Customer agrees to provide or otherwise make available to Stone Cobra and Partners: the resources; facilities; and equipment that are required by Stone Cobra for the performance of the Strike Force Services in a timely manner and at no charge to Stone Cobra. Customer’s failure to provide the items in a timely manner may result in a Customer Delay.

2.3. Service Complexity Rating. Some of the Strike Force Services are scoped and sized with a Service Complexity Rating (SCR) according to the following complexity scale:

  1. A or Minor – Strike Force Services which are simplistic, isolated, clearly communicated, and do not require design, regression testing, user acceptance testing, special deployment, or other aspects that would increase the complexity of the Service Request.
  2. B or Moderate – Strike Force Services with moderate complexity characterized by one or two of the following attributes, including but not limited to: creation of a documented or collaborative design for the Service Request; more than one area of the system involved in the Service Request; process for approval of the Service Request; co-work with non-Stone-Cobra-Resources to complete the Service Request; test cycles; special deployment; or other aspects that would increase the complexity of the Service Request.
  3. C or Major – Strike Force Services with high complexity characterized by three to five of the following attributes, including but not limited to: creation of a documented or collaborative design for the Service Request; more than one area of the system involved in the Service Request; multiple systems involved in the Service Request; formal approval of the Service Request; co-work with non-Stone-Cobra-Resources to complete the Service Request; specialty skills required to contribute to the Service Request; formal test cycles; special deployment; user training and rollout; or other aspects that would contribute to a high level of complexity of the Service Request.
  4. D or Substantial – Strike Force Services which are of the highest level of complexity characterized by some of the following: large number of areas of the system potentially involved; mission critical functionality involved; high degree of risk of the Service Request; high complexity of the Service Request; large number of teams, people, processes or systems involved in the Service Request; multi-vendor involvement in the Service Request; or other aspects which would reasonably characterize this Service Request as substantial. When appropriate, these Strike Force Services shall be broken down into several less complex Service Requests.

2.4. SCR Assignment. Once Customer submits a Service Request, Stone Cobra shall evaluate the Service Request and assign a SCR. For critical Service Requests or Service Requests where additional investigation must be performed to assign an SCR, work may be performed on the Service Request prior to the assignment of an SCR. If the circumstances related to a Service Request change such that a modification of the SCR is appropriate, Stone Cobra shall update the SCR accordingly. Stone Cobra reserves the sole right to determine the SCR for a Service Request.

2.5. SCR Conversion. For purposes of calculations, the following conversion factors shall be applied to SCRs:

  1. Five (5) A or Minor Service Requests = One (1) B or Moderate Service Request;
  2. Five (5) B or Moderate Service Requests = One (1) C or Major Service Request;
  3. Five (5) C or Major Service Requests = One (1) D or Substantial Service Request.

2.6. Service Variance. Each month during the Strike Force Services delivery period, the actual Strike Force Service Velocity will be computed based on the Strike Force Services provided. The difference between the actual Strike Force Service Velocity and the contracted Strike Force Service Velocity is the variance (“Service Variance”).

  1. In the event that the actual Strike Force Service Velocity exceeds the contracted Strike Force Service Velocity by five percent (5%) or less, no action will be taken.
  2. In the event that the actual Strike Force Service Velocity exceeds the contracted Strike Force Service Velocity by more than five percent (5%), Stone Cobra will notify Customer of the Service Variance. Customer agrees to either (a) reduce the Strike Force Service Velocity for the subsequent month by the equivalent amount of the Service Variance or (b) increase the Strike Force Service Velocity and thereby increase the associated fees, effective the beginning of the month the Service Variance was noted and continuing for the remainder of the term of the Agreement.
  3. In the event that the actual Strike Force Service Velocity exceeds or is projected to exceed the contracted Strike Force Service Velocity by more than twenty percent (20%), Stone Cobra will notify Customer of the Service Variance and the actual Strike Force Service Velocity will immediately be throttled to reduce the Service Variance below twenty percent unless, within two (2) Business Days of notification, the Customer approves an increase in the Strike Force Service Velocity and thereby an increase in the associated fees, effective the beginning of the month the Service Variance was noted and continuing for the remainder of the term of the Agreement.
  4. In the event that the aforementioned reductions in Strike Force Service Velocity resulting from a Service Variance cannot be enacted in the specified manner, Stone Cobra shall create an alternate plan to remedy the Service Variance and communicate such plan to Customer.

    v. Except as stated above, Strike Force Service Velocity is non-transferrable between months.

2.7. Increasing Strike Force Service Velocity. At any time throughout the term of the Agreement, Customer may request an increase in the Strike Force Service Velocity and thereby increase the associated fees for the remainder of the term of the Agreement, with two (2) weeks prior Written Approval.

2.8. Decreasing Strike Force Service Velocity. At any time throughout the term of the Agreement, Customer may request a decrease in the Strike Force Service Velocity and thereby decrease the associated fees for the remainder of the term of the Agreement, with one (1) month prior Written Approval. Strike Force Service Velocity shall not be decreased below sixty-six percent (66%) of the Strike Force Service Velocity originally contracted for that period of service.

2.9. Order of Performance. The order in which the Strike Force Services are performed is determined by the following process:

  1. Routine Services are planned and performed according to their specified schedule. Routine Services are not impacted by Service Requests.
  2. Critical Service Requests are worked as the highest priority Service Requests and take precedence over all other Service Requests. Critical Service Requests are worked in the order in which they were received. Due to the critical nature of these services, Critical Service Requests are worked continuously throughout the specified critical response working hours in the Agreement, typically (a) Business Hours or (b) 24×7×365.
  3. Service Requests are stack ranked by Customer and are worked on by Stone Cobra in stack ranked order. Customer may modify the stack ranking of Service Requests at any time. Notwithstanding the foregoing, Service Requests actively being worked (“In-Progress Service Requests”) shall not have their stack ranking modified.

2.10. Service Level Agreements. The Service Level Agreements for the Strike Force Services are as follows:

  1. Stone Cobra Resources understand that Critical Service Requests need the utmost attention and will respond to each Critical Service Request quickly. Stone Cobra agrees to respond to ninety percent (90%) of Critical Service Requests within two (2) hours and strives to exceed this SLA.
  2. Service Requests are the primary method of communicating new requests for services and it is the fluid interactions through the Service Requests which make the Strike Force Services a unique offering. Therefore, Stone Cobra agrees to respond to ninety percent (90%) of Service Requests within one (1) day by evaluating the Service Request and assigning an appropriate SCR. If the Service Request needs additional information before an SCR can be assigned, Stone Cobra will respond as such within the same response period.
  3. Routine Services are the foundation of regular Strike Force Services and shall be planned and performed according to their specified schedule. Stone Cobra agrees to provide ninety percent (90%) of Routine Services within one (1) day of their planned schedule.
  4. As pertains to the foregoing references to ‘hours’ or ‘days’:
    (a) ‘hours’ shall be interpreted as Business Hours or 24×7 depending on the level of service designated in the Agreement. Should the Agreement fail to properly designate Business Hours or 24×7 for any service, then Business Hours shall be the standard interpretation.
    (b) ‘days’ shall be interpreted as Business Days or 24×7×365 depending on the level of service designated in the Agreement. A designation of ‘Business Hours’ shall be treated the same as a designation of ‘Business Days’ in the Agreement. Should the Agreement fail to properly designate Business Days or 24×7×365 for any service, then Business Days shall be the standard interpretation.
  5. Customer understands that the resolution time for a Service Request is primarily controlled by the Strike Force Service Velocity. Therefore, the SLA for resolving Service Requests is not defined per Service Request, but is controlled on the aggregate by the Strike Force Service Velocity.

2.11. Customer Delays. In the event that Customer Delays are impacting the Strike Force Service delivery, the Customer Delays may be assigned a SCR representative of the impact of the Customer Delay. In these instances, the Customer Delays contribute to the Strike Force Service Velocity.

2.12. Warranty. Stone Cobra hereby warrants, according to generally accepted industry standards, that the Strike Force Services performed by Stone Cobra will be performed in a professional and workmanlike manner. As Customer’s sole and exclusive remedy and Stone Cobra’s entire liability for any breach of the foregoing warranty: Stone Cobra will re-perform the applicable Strike Force Services as warranted; or, if Stone Cobra is unable to perform the Strike Force Services as warranted, Customer shall be credited the value of the SCR for that portion of the unsatisfactory service. This warranty is valid during the Services Delivery Period as defined in the Agreement and covers only those nonconformities reported to Stone Cobra during the warranty period.

2.13. Disclaimer. STONE COBRA DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESSED, INCLUDING, WITHOUT LIMITATION, ALL EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND THE STATED EXPRESS WARRANTIES, IF ANY, ARE IN LIEU OF ALL OTHER OBLIGATIONS AND PERFORMANCE LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE RENDERING OF THE SERVICES HEREUNDER.

3. Hosting Services

If Customer elects Hosting Services in the Agreement, Customer agrees to additionally abide by the following terms and conditions:

3.1. Use of the Hosting Services. You are responsible for all activities that occur utilizing the Hosting Services, regardless of whether the activities are undertaken by You, Your employees, or a third party (including Your contractors or agents), and, except to the extent caused by Stone Cobra’s breach of this Agreement, Stone Cobra and our affiliates are not responsible for unauthorized access to Your Content. You will contact Stone Cobra immediately if You believe an unauthorized third party may be using Your Hosting Services or if Your access information is lost or stolen.

3.2. Your Responsibilities for Your Content. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, You are solely responsible for:

i. the technical operation of Your Content, including ensuring that interactions or integrations to or from other systems are secure, authorized, and adhere to the Acceptable Use Policy;

ii. compliance of Your Content with the Acceptable Use Policy, the other Policies, and the law;

iii. any claims relating to Your Content; and

iv. properly handling and processing notices sent to You (or any of Your affiliates) by any person claiming that Your Content violate such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.

3.3. Prohibited Content. If Stone Cobra reasonably believes that any of Your Content violates the law, infringes or misappropriates the rights of any third party, or otherwise violates a material term of the Agreement (“Prohibited Content”), Stone Cobra will notify you of the Prohibited Content and may request that such content be removed from the Hosting Services or access to it be disabled. If You do not remove or disable access to the Prohibited Content within two (2) Business Days of Stone Cobra’s notification, Stone Cobra may remove or disable access to the Prohibited Content or suspend the Hosting Services. Notwithstanding the foregoing, Stone Cobra may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Hosting Services, pursuant to the Digital Millennium Copyright Act, or as required to comply with law or any judicial, regulatory, or other governmental order or request. In the event that Stone Cobra removes content without prior notification, Stone Cobra will provide prompt notification to You unless prohibited by law.

3.4. Import and Export Compliance. In connection with this Agreement, You will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, You are solely responsible for compliance related to the manner in which You choose to use the Hosting Services, including your transfer and processing of Your Content and the provisioning of Your Content to End Users.

3.5. No High Risk Use. You may not use the Hosting Services in any situation where failure or fault of the Hosting Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, You may not use, or permit any other person to use, the Hosting Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug, and Cosmetic Act.

3.6. Your Responsibilities for Security and Backup. You are responsible for properly configuring and using the Hosting Services and taking Your own steps to maintain appropriate security, protection, and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving of Your Content. In addition, You are responsible for all disaster recovery and high availability plans as well as execution of those plans. As a part of the Strike Force Services, You may contract Stone Cobra to provide a portion of the backup, disaster recovery, or high availability services, which will assist Your responsibilities under this paragraph, but will not erode or absolve You of any of these responsibilities. At a minimum, You agree that You will maintain at least one additional current copy of Your Content somewhere other than the Hosted Services.

3.7. End User Violations. You will be deemed to have taken any action that You permit, assist, or facilitate any person or entity to take, related to the Agreement, Your Content, or use of the Hosting Services. You are responsible for End Users’ use of Your Content and the Hosting Services. You will ensure that all End Users comply with Your obligations under this Agreement and that the terms of Your agreement with each End User are consistent with this Agreement. If You become aware of any violation of Your obligations under this Agreement by an End User, You will immediately terminate such End User’s access to Your Content and the Hosting Services.

3.8. End User Support. Unless otherwise specified in the contracted Strike Force Services, You are responsible for providing customer service (if any) to End Users. The Hosting Services do not provide any support or services to End Users.

3.9. Suspension. Stone Cobra may suspend Your Hosting Services without liability if:

  1. Stone Cobra reasonably believes that the Hosting Services are being used (or have been or will be used) in violation of the Agreement;
  2. Stone Cobra discovers that You are, or are affiliated in any manner with, a person or entity who has used similar services abusively in the past;
  3. You don’t cooperate with Stone Cobra’s reasonable investigation of any suspected violation of the Agreement;
  4. Stone Cobra reasonably believes that Your Hosting Services have been accessed or manipulated by a third party without Your consent;
  5. Stone Cobra reasonably believes that suspension of the Hosting Services is necessary to protect Stone Cobra’s hosting infrastructure or Stone Cobra’s other customers;
  6. a payment for the Hosting Services is overdue;
  7. Stone Cobra reasonably believes that the Hosting Services may subject Stone Cobra, our affiliates, or any third party to liability; or
  8. Suspension is required by law.

    Stone Cobra will give You reasonable advance notice of a suspension and a chance to cure the grounds on which the suspension is based, unless Stone Cobra determines, in its reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Stone Cobra, its other customers, or the public from imminent and significant operational or security risk.

3.10. Effect of Suspension. If Your right to access or use any portion or all of the Hosting Services is suspended:

i. You remain responsible for all fees and charges You have incurred through the date of suspension;

ii. You remain responsible for any applicable fees and charges for any Hosting Services to which You continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;

iii. You will not be entitled to any service credits under the Hosting Service Level Agreements for any period of suspension; and

iv. For thirty (30) days after suspension, Stone Cobra will not erase any of Your Content as a result of your suspension, except as specified elsewhere in the Agreement.

Stone Cobra’s right to suspend Your, or any End User’s, right to access or use the Hosting Services is in addition to Stone Cobra’s right to terminate this Agreement.

3.11. Reactivation. If the Hosting Services have been suspended or terminated and Customer requests reactivation of the Hosting Services, reactivation fees will be charged to Customer. Customer agrees to pay Stone Cobra the aggregate monthly fees applicable to Hosting Services for the period of time beginning on the date of suspension/termination and continuing until the date of reactivation in addition to an additional ten percent (10%) for the reactivation fees. Reactivation fees are due and payable prior to the Hosting Services reactivation date. Reactivation will not occur until all fees have been received and is only available if Your Content has remained active on the Hosting Service through the provisions herein or by continuously paying for data storage since suspension or termination.

3.12. Proprietary Rights. As between You and Stone Cobra, You or Your licensors own all right, title, and interest in and to Your Content. Except as otherwise provided in this Agreement, Stone Cobra obtains no rights under this Agreement from You or Your licensors to Your Content, including any related Intellectual Property Rights. You consent to Stone Cobra’s use of Your Content to provide the Hosting Services to You and any End Users. We may disclose Your Content to provide the Hosting Services to You or any End Users or to comply with any request of a governmental or regulatory body (including subpoenas and court orders).

3.13. Adequate Rights. You represent and warrant to Stone Cobra that: (a) You or Your licensors own all rights, titles, and interests in and to Your Content; (b) You have all rights in Your Content necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content, or End Users’ use of Your Content, or the Hosting Services will violate the Acceptable Use Policy. In addition to the foregoing, You specifically represent and warrant that you will maintain, throughout the term of the Hosting Services, the proper licenses to the software and licensed components that are a part of Your Content. Stone Cobra will, throughout the term of the Hosting Services, provide You the information You request for You to ensure You maintain full license compliance.

3.14. Hosting Services License. As between You and Stone Cobra, Stone Cobra or our affiliates or licensors own and reserve all rights, titles, and interests in and to the Hosting Services. Stone Cobra grants You a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to access and use the Hosting Services solely in accordance with this Agreement. Except as provided in this section, You obtain no rights under this Agreement from Stone Cobra or our licensors to the Hosting Services, including any related Intellectual Property Rights.

3.15. Data Storage After Suspension or Termination. If Your access to the Hosting Services has been suspended or terminated, Stone Cobra will continue to store Your Content and make it accessible to one administrator-level contact identified by You. It is your right to move, export, or otherwise retrieve Your Content during the time You are paying for data storage services, subject to system and network limits. Data storage is not subject to the Hosting Services SLA’s. Customer agrees to pay Stone Cobra data storage fees equal to twenty percent (20%) of the contracted monthly Hosting Service fees at the time of suspension or termination. Data storage fees are due and payable prior to the month in which the data storage service is being provided. Data storage fees which are more than 15 days past due will terminate the data storage service and Your Content and all data will be removed from the Hosting Services and will no longer be accessible to You in any form.

3.16. Data Export. At any time throughout the term of the Hosting Services or data storage services, You may request an export of Your data that is housed in an application running on the Hosting Service or Your Content in its entirety. Stone Cobra will provide all requested data that is eligible for export in one of the standard formats available from the exporting application. If Customer requires specific data formats, data dictionaries, or other manipulation or interpretation of the data, additional fees apply and will be determined at the time of Customer’s request for data export. Data export requests are not subject to the Hosting Service SLA’s or Service Request SLA’s. Customer agrees to pay Stone Cobra ten percent (10%) of the contracted monthly Hosting Service fee as the data export fee for each data export request. Data export fees are due and payable prior to the data export being provided to Customer.

3.17. Hosting Service Level Agreements. The network, infrastructure, and End-User-facing hosted applications that are included in the Hosting Services are provided to You with 99.9% availability (up to 43.2 minutes of downtime per month). You may receive a credit from Stone Cobra if the Hosting SLA’s are exceeded according to the following:

  1. Downtime of less than or equal to 43.2 minute in a single month receives no credit since it is within the Hosting SLA.
  2. Downtime of greater than 43.2 minutes but less than 7.20 hours in a single month receives a ten percent (10%) credit on the Hosting Services fees for that month.
  3. Downtime of 7.20 hours or more in a single month receives a fifty percent (50%) credit on the Hosting Services fees for that month.
  4. To receive a credit, You must contact Stone Cobra within ten (10) days following the end of the month accruing the downtime. You must detail the downtimes and show that Your use of the Hosting Services was adversely affected as a result of the downtime to be eligible for the credit.
  5. You are not entitled to a credit if You are in breach of the Agreement or in violation of the Acceptable Use Policy, or if the downtime would not have occurred but for Your misuse of Hosting Services.
  6. Credits are applied towards future payments of fees or expenses related to the Hosting Services or Strike Force Services. In the event that the Agreement terminates with an outstanding credit, the credit will be issued as a refund to the Customer within sixty (60) days of the Agreement termination date.
  7. This Hosting SLA and the associated credits are Your sole and exclusive remedy for Hosting Services unavailability.

3.18. Stone Cobra Scheduled Maintenance. Stone Cobra scheduled maintenance is excluded from the Hosting SLA and availability calculations and is typically scheduled during the standard maintenance window. Scheduled maintenance is defined as: (a) any maintenance for which Customer receives 48 hours advance notification; or (b) maintenance performed during the recurring standard scheduled maintenance windows of 12:01 am through 8:00 am Saturday and/or Sunday, Pacific Time Zone. Notice of standard scheduled maintenance is provided to Customer’s designated point of contact by one or more methods elected by Stone Cobra.

3.19. Customer Scheduled Maintenance. Stone Cobra requires advance notice from You regarding the details and schedule of changes that You or Your authorized representatives plan to make to Your Content or any portion of the Hosting Services. You are also required to notify Stone Cobra upon completion of Customer maintenance activities to trigger the resumption of Strike Force Services and Hosting Services. If You want to request Stone Cobra staff for assistance during Customer scheduled maintenance, requests are handled through Strike Force Services as Service Requests and require sufficient advance notice of the Customer scheduled maintenance window to be accommodated. Customer scheduled maintenance is excluded from the Hosting SLA and availability calculations.

3.20. Hosting Services Disclaimer. THE HOSTING SERVICES ARE PROVIDED “AS IS.” STONE COBRA AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE HOSTING SERVICE, INCLUDING ANY WARRANTY THAT THE HOSTING SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, STONE COBRA AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE.

4. Hosting Services Acceptable Use Policy

If Customer elects Hosting Services in the Agreement, Customer agrees to additionally abide by the following terms and conditions for acceptable use (“Acceptable Use Policy”):

4.1. No Illegal, Harmful, or Offensive Use or Content. You may not use or encourage, promote, facilitate, or instruct others to use the Hosting Services for any illegal, harmful, or offensive use, or to transmit, store, display, distribute, or otherwise make available content that is illegal, harmful, or offensive. Prohibited activities or content include:

  1. Illegal Activities. Any illegal activities, including without limitation advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting, or facilitating child pornography.
  2. Harmful or Fraudulent Activities. Activities that may be harmful to others, Stone Cobra’s operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices.
  3. Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others or is intended to assist others in defeating technical copyright protections.
  4. Risk-Inducing Content. Content that creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement.
  5. Offensive Content. Content that is defamatory, obscene, abusive, excessively violent, incites violence, threatens violence, contains harassing content or hate speech, is invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts.
  6. Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
  7. Any conduct that is likely to result in retaliation against the Hosting Services, website, or Stone Cobra employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).

4.2. Excessive Use of System Resources. You may not use the Hosting Services in a way that unnecessarily interferes with the normal operation of the Hosting Services, or that consumes a disproportionate share of the resources of the system. You agree that Stone Cobra may quarantine or delete any Content stored on a shared system if the Content is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ Content.

4.3. Bulk or Commercial E-Mail. You must obtain Stone Cobra’s advance approval for any bulk or commercial e-mail.

4.4. Vulnerability Testing. You may not attempt to probe, scan, penetrate, or test the vulnerability of the Hosting Services systems or network, or to breach the Hosting Services security or authentication measures, whether by passive or intrusive techniques, without Stone Cobra’s express Written Approval.

4.5. Copyrighted Material. You may not use the Hosting Services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law unless:

  1. You have been expressly authorized to copy the work in that manner by the copyright owner of the work; or
  2. You are otherwise permitted by established copyright law to copy the work in that manner.

4.6. No Security Violations. You may not use the Hosting Services to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:

  1. Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
  2. Interception. Monitoring of data or traffic on a System without permission.
  3. Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.

4.7. No Network Abuse. You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:

  1. Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
  2. Denial of Service (DoS). Inundating a target with communication requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
  3. Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
  4. Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
  5. Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations placed on a System, such as access and storage restrictions.

4.8. Stone Cobra’s Monitoring and Enforcement. Stone Cobra reserves the right, but does not assume the obligation, to investigate any violation of this Acceptable Use Policy or misuse of the Hosting Services. Stone Cobra may: (a) investigate violations of this Acceptable Use Policy or misuse of the Hosting Services; or (b) remove, disable access to, or modify any of Your Content that violates this Acceptable Use Policy or this Agreement. Stone Cobra may report any activity that it suspects of violating any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Stone Cobra’s reporting may include disclosing appropriate customer information. Stone Cobra also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Acceptable Use Policy.

4.9. Changes to the Acceptable Use Policy. Stone Cobra may change the Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. You will be notified of any such changes made during the term of the Agreement and these changes will become effective upon the first to occur of: (i) renewal; (ii) Your execution of a change order or amendment to the Agreement; or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects You, You may terminate the Hosting Services by giving Stone Cobra written Notice of termination on such grounds no later than thirty (30) days following the date the change became effective, and Stone Cobra will not enforce the change with respect to Your Hosting Services for thirty (30) days following the date of Your notice. If You terminate your Hosting Services because the change adversely affects you, Stone Cobra may decide not to enforce that change with respect to Your Hosting Services and keep Your Agreement in place for the remainder of the term.

5. Expenses

5.1. Strike Force Services are performed remotely and therefore travel expenses are not anticipated as a part of the Strike Force Service delivery.

5.2. If Customer requests travel by the Strike Force Resources, travel expenses will be charged to the Customer at the following rates:

  1. Travel within 150 miles of the Stone Cobra office is charged at $500.00 USD per Stone Cobra Resource per day or portion of a day, including travel days.
  2. Travel greater than 150 miles from the Stone Cobra office but within the same continent is charged at $1,000.00 USD per Stone Cobra Resource per day or portion of a day, including travel days.
  3. Travel to another continent from the Stone Cobra office is charged at $1,500.00 USD per Stone Cobra Resource per day or portion of a day, including travel days.
  4. For travel distance calculations, the location of the Stone Cobra office is chosen for each Stone Cobra Resource as the primary location of work for that Stone Cobra Resource. Therefore, travel distances may vary for different Stone Cobra Resources.

5.3. Travel expense rates are inclusive of the travel, lodging, meals, travel time, loss in productivity and other related costs of travel.

5.4. Travel expenses or other Strike Force Service related expenses will be presented to Customer for Written Approval prior to incurring the expense.

5.5. Expenses are not included in the Strike Force fees or payment schedule specified in the Agreement. Expenses are in addition to the Strike Force fees and are invoiced by Stone Cobra regularly, to be paid by Customer according to the payment terms identified herein.

6. Payment

6.1. Customer shall pay Stone Cobra for Strike Force Services and Hosting Services according to the Payment Schedule specified in the Agreement. In addition, Customer shall pay any additional amounts due under this Agreement within ten (10) days of the Stone Cobra invoice date.

6.2. Any overdue payments will bear a late payment fee of 1.5% per thirty (30) days or portion thereof, or, if lower, the maximum rate permitted by law. Collection costs for past due amounts (including reasonable attorneys’ fees) shall be borne by Customer.

6.3. Stone Cobra reserves the right to withhold or suspend Strike Force Services in the event a Customer payment has not been received by Stone Cobra and is overdue by at least ten (10) days.

6.4. Customer will pay all amounts due under this Agreement in U.S. currency. Except as expressly set forth in this Agreement, all fees paid to Stone Cobra are nonrefundable and all payment obligations are non-cancelable.

6.5. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including, but not limited to, withholding, sales, and use taxes) associated with this Agreement or Customer’s receipt or use of the Strike Force Services or Hosting Services, except for taxes based on Stone Cobra’s net income. Customer will promptly reimburse Stone Cobra for all such taxes or duties that Stone Cobra may be required to pay in connection with this Agreement.

6.6. Customer understands that Stone Cobra makes an initial investment prior to the Services Start Date to prepare for the upcoming delivery of Strike Force Services or Hosting Services. Therefore, Customer agrees to provide an initial payment for Strike Force Services or Hosting Services in a timely manner as specified in the Agreement. If the first payment (“Payment 1″) is not received by Stone Cobra by the Payment 1 Due Date identified in the Agreement, then the Services Start Date and corresponding Services End Date and all related dates dependent on the Services Start Date shall be modified to reflect the appropriate dates based on the date the payment was received from the Customer, up to a maximum deferral of fifteen (15) days. Customer will be notified by Stone Cobra of the change in these dates and hereby agrees to these changes without an addendum to the Agreement.

6.7. If Payment 1 is overdue by fifteen (15) days, the Agreement shall be considered terminated effective the day prior to the Services Start Date. In such circumstances, Stone Cobra shall not be responsible for the performance of any Strike Force Services or Hosting Services to the Customer.

6.8. All payment terms survive the termination of the Agreement until Customer’s payment obligations have been met in full.

7. Limitation of Liability

7.1. Total Liability. Stone Cobra’s and its licensors’ total cumulative liability to Customer, from all causes of action and all theories of liability, will be limited to and will not exceed the amounts paid to Stone Cobra by Customer pursuant to this Agreement for Strike Force Services or Hosting Services which are the subject of the cause of action or claim.

7.2. Limitation of Partner Services Liability. In no event will Stone Cobra or its licensors be liable to Customer for any causes of action and/or theories of liability arising out of or in connection with the Partners or Partner Services.

7

7.3. Exclusion of Damages. In no event will Stone Cobra or its affiliates or licensors be liable to Customer for any direct, special, indirect, incidental, exemplary, or consequential damages (including, without limitation, damages for loss of profits, goodwill, use, data, or the cost of replacement goods) arising out of or in connection with this Agreement or the use or performance of the Stone Cobra technology, Strike Force Service or Hosting Services, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), product liability or otherwise, and whether or not a party has been advised of the possibility of such loss or damage. Further, neither Stone Cobra nor any of its affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with:

  1. Customer’s inability to use the Stone Cobra Technology, Strike Force Services, or Hosting Services, including any (a) termination or suspension of this agreement or use of or access to the Stone Cobra Technology, Strike Force Services, or Hosting Services, (b) Stone Cobra’s discontinuation of any or all of the service offerings, or, (c) without limiting any obligations under the SLAs, any unanticipated or unscheduled downtime of all or a portion of the Stone Cobra Technology, Strike Force Service, or Hosting Services for any reason, including as a result of power outages, system failures, or other interruptions;
  2. the cost of procurement of substitute goods or services;
  3. any investments, expenditures, or commitments by Customer in connection with this Agreement or Customer’s use of or access to the Stone Cobra Technology, Strike Force Service, or Hosting Services; or
  4. any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Your Content or other data.

7.4. Indemnification. Customer will defend, indemnify, and hold harmless Stone Cobra, Stone Cobra’s affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer’s or any End Users’ use of the Strike Force Services or Hosting Services; (b) breach of this Agreement or violation of applicable law by Customer or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content, or by the use, development, design, production, advertising, or marketing of Your Content; or (d) a dispute between Customer and any End User. If Stone Cobra or Stone Cobra’s affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse Stone Cobra for reasonable attorneys’ fees, as well as Stone Cobra Resources’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at Stone Cobra’s then-current hourly rates.

7.5. Basis of Bargain. The parties expressly acknowledge and agree that Stone Cobra has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Stone Cobra and Customer. The parties have agreed that the limitations specified in this section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

7.6. All Limitation of Liability terms survive the termination of this Agreement.

8. Termination

8.1. Term and Termination. This Agreement begins on the Effective Date and terminates on the Service End Date as specified in the Agreement, unless terminated earlier in accordance with its terms.

8.2. Termination for Cause. Each party shall have the right to terminate the Agreement if: (a) the other party breaches any material term of the Agreement and fails to cure such breach within thirty (30) days after Written Notice thereof; or (b) either party becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

8.3. Termination of Hosting Services. In addition to the termination rights herein, Customers electing the Hosting Services are also subject to the following terms. Stone Cobra may terminate the Hosting Services immediately upon Written Notice to Customer:

  1. for cause, if any act or omission by You or any End User results in a suspension;
  2. if Stone Cobra’s relationship with a third party partner who provides software, hardware, or other technology used to provide the Hosting Services expires, terminates, or requires Stone Cobra to significantly change the way the Hosting Services are provided;
  3. if Stone Cobra believes providing the Hosting Services could create a substantial economic or technical burden or material security risk;
  4. in order to comply with the law or requests of governmental entities; or

    v. if Stone Cobra determines the provisioning or Your use of the Hosting Service has become impractical or unfeasible for any legal or regulatory reason.

8.4. Effect of Termination. Upon any termination of this Agreement:

  1. all Your rights under this Agreement immediately terminate;
  2. You remain responsible for all fees and charges You have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
  3. You will immediately return or, if instructed by Stone Cobra, destroy all Stone Cobra materials in your possession;
  4. For Hosting Services, Stone Cobra will not erase any of Your Content for the first 30 days following termination, but Stone Cobra reserves the right to erase all of Your Content and any data, software, systems, or backups related to Your Hosting Services that reside on Stone Cobra’s hardware unless Data Storage services have been contracted and paid for by Customer;
  5. For Hosting Services, You may retrieve Your Content from the Hosting Services only if You have paid all outstanding amounts due. Any post-termination assistance from Stone Cobra to retrieve Your Content is subject to additional fees which must be approved and paid by Customer prior to Stone Cobra providing the assistance.

8.5. Return of Materials. Upon termination of this Agreement, due to Customer’s breach of any material term herein, Customer will promptly return to Stone Cobra or, at Stone Cobra’s request, destroy the applicable materials from Strike Force Services rendered and all copies and portions thereof, in all forms and types of media, and provide Stone Cobra with a written certification, certifying to Customer’s compliance with the foregoing. Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.

8.6. Return of Confidential Information. Upon termination of the Agreement for any reason, each party shall return to the other party or destroy (and so certify to the other party) any Confidential Information obtained from the other party.

8.7. Survival. All terms of this Agreement which are on-going in nature including, without limitation, terms relating to license grant, payment, confidentiality, effects of termination, survival, and all general terms shall survive the termination of this Agreement.

9. General

9.1. Stone Cobra Technology License. Stone Cobra grants to Customer a non-exclusive, non-transferable license to utilize Stone Cobra Technology for the term of the services delivery period specified in the Agreement and subject to compliance with the terms of this Agreement. All rights to Stone Cobra Technology developed prior, during, or subsequent to this Agreement are retained by Stone Cobra and no transfer of these rights from Stone Cobra to the Customer is assumed by this Agreement.

9.2. License Restrictions. Neither Customer nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Stone Cobra Technology or Hosting Services (except to the extent software is provided to Customer under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Stone Cobra Technology or Hosting Services or apply any other process or procedure to derive the source code of any software included in the Stone Cobra Technology or Hosting Services, (c) access or use the Stone Cobra Technology or Hosting Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Stone Cobra Technology or Hosting Services. All licenses granted to Customer in this Agreement are conditional on Customer’s continued compliance with this Agreement, and will immediately and automatically terminate if Customer does not comply with any term or condition of this Agreement. During and after the term, Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Stone Cobra or any of Stone Cobra’s affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Stone Cobra Technology or Hosting Services Customer has used.

9.3. Use of Confidential Information. Neither party will use the other party’s Confidential Information except as permitted herein, and will not, at any time, disclose such Confidential Information to any third party except to employees and consultants as is reasonably required to exercise its rights and obligations under this Agreement (and only under binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). Each party will take all reasonable measures to maintain the confidentiality of all of the other party’s Confidential Information in its possession or control, but in any event at least those measures that it employs to protect its own information of similar importance. However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors. This term survives the termination of the Agreement for a period of one (1) year.

9.4. Assignment. Customer will have no right to assign this Agreement, in whole or in part, without Stone Cobra’s prior written consent. Any attempt to assign this Agreement without such consent will be null and of no effect. However, Customer may assign this Agreement, without Stone Cobra’s consent, in the case of a merger, acquisition or sale of substantially all of Customer’s assets, or to any entity that controls, is controlled by, or is under common control with, Customer; provided, however, that the assignee is not a competitor of Stone Cobra and agrees in writing to be bound by the terms and conditions of this Agreement.

9.5. Venue. This Agreement will be governed by and construed in accordance with the laws of California without regard to principles of conflicts of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in Sacramento County, California, and the parties hereby consent to personal jurisdiction and venue therein. In any action or proceeding to enforce rights under the Agreement, the substantially prevailing party will be entitled to recover reasonable costs and attorneys’ fees.

9.6. Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such provision will be enforced to the maximum extent permissible and the other provisions of the Agreement will remain in full force and effect.

9.7. Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Except for actions for non-payment or breach of Intellectual Property Rights, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has occurred.

9.8. Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including but not limited to: labor disputes; strikes; shortages of or inability to obtain labor, materials, or supplies; systemic electrical, telecommunications, or other utility failures; earthquake, storms or other elements of nature; war; riot; or acts of God, public enemy, or government.

9.9. Relationship of Parties. The parties to the Agreement are independent contractors and the Agreement does not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. The Agreement shall not be construed to create an employment relationship between the parties, whether for tax or any other purpose. Stone Cobra and its personnel shall not be considered employees of Customer. Neither party shall have the right to bind the other to any agreement with a third party or to incur any obligation or liability on behalf of the other party.

9.10. Written Approval. Written Approval permitted under the Agreement shall be delivered to Stone Cobra via email, courier, overnight delivery service, or by certified mail. Written Approval is considered received by Stone Cobra according to the following:

  1. When sent via email, the date Stone Cobra replies to the Written Approval email, confirming its receipt, or
  2. When sent via courier, overnight delivery service, or by certified mail it is deemed given upon receipt.

9.11. Notices. Notices required or permitted under this Agreement shall be in writing and delivered by courier or overnight delivery service, or by certified mail to the Address for Notices specified in the Agreement. Notices will be deemed given upon receipt. Notices must be given in the English language.

9.12. Effect of Addendum. All of the terms and conditions of the Agreement shall continue in full force and effect except as modified by an addendum executed by duly authorized representatives of both parties, or by Written Approval for the limited usage defined herein. Notwithstanding the foregoing, the Strike Force Terms and Conditions may be updated from time to time by Stone Cobra. You will be notified of any such changes made during the term of the Agreement and these changes will become effective upon the first to occur of: (i) renewal, (ii) Your execution of a change order or amendment to the Agreement, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects You, You may terminate the Agreement by giving Stone Cobra written Notice of termination on such grounds no later than thirty (30) days following the date the change became effective, and Stone Cobra will not enforce the change with respect to Your Agreement for thirty (30) days following the date of Your notice. If You terminate the Agreement because the change adversely affects you, Stone Cobra may decide not to enforce that change with respect to Your Agreement and keep Your Agreement in place for the remainder of the term.

9.13. Precedence. In the event of a conflict between the Strike Force Terms and Conditions and the Agreement, the Strike Force Terms and Conditions shall take precedence over and shall govern over any inconsistent or conflicting terms in the Agreement, addendum, or purchase order (even if signed), unless and solely to the extent that the parties expressly state in a signed writing that they intend to override specific Strike Force Terms and Conditions.

9.14. Counterparts. The parties agree that the Agreement may be signed by manual or facsimile signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.