Stella Connect Master Services Agreement
This Stella Connect Master Services Agreement (this “Agreement”) is a legal agreement between StellaService Inc., a Delaware corporation (“StellaService”) and the Customer (“Customer”) agreeing to be bound by the terms of this Agreement.
By (a) requesting an unpaid Evaluation Period or (b) a paid license, Customer consented to be governed by the terms of this Agreement. Prior to accessing or using Stella Connect for the first time, Customer must affirm such consent by checking the box indicating Customer’s acceptance of the terms of this Agreement or signing the applicable Order Form, in the case of a paid license. By checking such box or executing an Order Form, Customer acknowledges: (x) that Customer has read and understood this Agreement; and (y) that this Agreement has the same force and effect as an agreement signed with original signatures.
Customer understands and hereby agrees that if Customer does not enter into a paid license with StellaService on or prior to the last day of the Evaluation Period, any and all access rights to Stella Connect will terminate as of the end of such Evaluation Period and any and all Customer Data will no longer be accessible by Customer or its Authorized Users.
In consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be bound, agree as follows:
“Authorized User” means an employee, consultant, agent or customer or other end user of Customer that Customer has expressly authorized to use and access Stella Connect.
“Customer Data” means any data, content, or information directly provided to StellaService or Stella Connect by Customer, any Authorized User of Customer, or Customer’s customers.
“Consumer PII” means the subset of Customer Data defined as name and email address of individuals who should receive Stella Connect requests
“Developments” means the collective ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing Stella Connect hereunder, including without limitation any derivative works, improvements, enhancements and/or extensions made to Stella Connect and all Intellectual Property Rights therein and thereto throughout the world.
“Documentation” means any proprietary documentation made available to Customer by StellaService for use with Stella Connect, including any documentation available online or otherwise.
“Evaluation Period” means the period designated by StellaService for Customer’s evaluation of Stella Connect.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Order Form” means an order form provided to customer by StellaService and entered into between the parties specifying, among other things, the number of user licenses to be granted and the price and payment terms for such licenses.
“Stella Connect” means StellaService’s proprietary customer service analytics software as a service platform made available to the Customer hereunder, together with any fixes, updates, enhancements and upgrades thereto. Without limiting the foregoing, the term “Stella Connect” includes the StellaService Site, the StellaService Content, the Documentation, and the StellaService Data.
“StellaService Content” means all content, including without limitation software (in object or source code form), script, programming code, data, information, structural hierarchies, interfaces, processes, HTML code, trademarks, service marks, proprietary logos, distinctive brand features, images, illustrations, graphics, multimedia files and/or text, contained in Stella Connect, as well as the structure, selection, coordination, expression, “look and feel”, and arrangement of Stella Connect, and all Intellectual Property Rights therein or relating thereto.
“StellaService Data” means any data or information provided by StellaService or generated by or in connection with the provision or use of Stella Connect, including without limitation, behavioral data, optimization data and aggregated data. StellaService Data shall not include data or information otherwise considered “Customer Data”.
“StellaService Performance Benchmarks” means aggregated and anonymized data of StellaService Customers. StellaService Performance Benchmarks does not include Consumer PII or information that could be attributed to an individual Customer or individual. StellaService Performance Benchmarks are considered the property of StellaService
“StellaService Site” means StellaService’s website located at https://stellaservice.com/ and all subdomains thereof.
2. LICENSE GRANT. Subject to the terms and conditions of this Agreement and, if applicable, the Order Form(s) executed between the parties and Customer’s payment of the fees set forth in such Order Form(s), StellaService hereby grants Customer a limited, revocable, non-exclusive, non-transferable license (without the right to sublicense) during the Term (as defined in Section 9.1) to access and use Stella Connect solely for Customer’s internal business purposes and in accordance with any applicable Documentation. The foregoing license grant is not a sale of Stella Connect or any copy thereof, and StellaService or its third-party partners or suppliers retain all right, title, and interest in Stella Connect (and any copies or derivatives thereof). Any attempt by Customer to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. StellaService reserves all rights not expressly granted under this Agreement.
3. LICENSE RESTRICTIONS. Customer shall not, directly or indirectly, nor shall Customer permit any third party to: (a) copy, distribute, or disclose any part of Stella Connect in any medium, including without limitation by any automated or non-automated “scraping”; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Stella Connect; (c) modify or create derivative works based on Stella Connect or any related Documentation; (d) rent, lease, distribute, sell, resell, assign, or otherwise transfer Customer’s rights to use Stella Connect; (e) use Stella Connect for timesharing or service bureau purposes or otherwise for the benefit of a third party; (f) remove any proprietary notices from Stella Connect or any other StellaService materials furnished or made available hereunder; (g) use Stella Connect to develop any similar service, or other information resource of any kind (print, electronic or otherwise) for sale to, distribution to, display to or use by others; (h) use Stella Connect in violation of any federal, state, or local law, rule, or regulation, or any third-party right known to Customer; (i) take any action that imposes, or may impose at StellaService’s sole discretion an unreasonable or disproportionately large load on the StellaService infrastructure; (j) upload invalid data, viruses, worms, or other software agents through Stella Connect; or (k) bypass the measures StellaService may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
4. CUSTOMER ACCOUNT; AUTHORIZED USERS. Customer is solely responsible for the activity that occurs under its account, and Customer must keep its account password secure. Customer should use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with its account. Customer must notify StellaService immediately of any breach of security or unauthorized use of Customer’s account. StellaService will not be liable for any losses caused by any unauthorized use of Customer’s account. Customer shall ensure that Customer’s Authorized Users are bound by and comply with the terms and conditions of this Agreement. Customer shall be solely responsible for Customer’s actions and the actions of any Authorized Users or other users of Customer’s account while using Stella Connect.
5. PROPRIETARY RIGHTS.
5.1 Customer Proprietary Rights and License.
(a) StellaService hereby acknowledges that, as between Customer and StellaService and subject to Section 5.2 below, Customer owns all legal right, title, and interest in and to (i) Customer Data and (ii) Customer Marks (as defined below) and all Intellectual Property Rights therein. Nothing in this Agreement will confer on StellaService any right of ownership or interest in Customer Marks or the Intellectual Property Rights therein. Customer reserves all rights in Customer Marks not expressly granted under this Agreement.
(b) Notwithstanding the foregoing: (i) Customer hereby grants StellaService a non-exclusive and perpetual right and license to (1) copy, use, modify, distribute, display and disclose Customer Data solely to the extent necessary for StellaService to perform its obligations under this Agreement, (2) copy, modify and use Customer Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (3) include Customer Data (Excluding Consumer PII) in a de-identified and aggregate basis in StellaService Performance Benchmarks; and (ii) StellaService may use Customer’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (collectively, “Customer Marks”), in presentations, marketing materials, customer lists, financial reports and website listings (including links to Customer website) for the purpose of advertising or publicizing Stella Connect and/or StellaService’s business.
5.2 StellaService Proprietary Rights.
(a) Customer hereby acknowledges that, as between Customer and StellaService, StellaService owns all legal right, title and interest in and to (i) Stella Connect (including, without limitation, the StellaService Site, the StellaService Content, and the StellaService Data), (ii) the Developments, and (iii) all Intellectual Property Rights in the foregoing. Without limiting the foregoing, StellaService shall own all right, title, and interest in and to any Developments resulting from any work performed to customize Stella Connect for Customer. If Customer or any Authorized User is ever held to have any right or interest in or to Stella Connect or any Developments, Customer hereby assigns, and shall procure that the Authorized User assigns, to StellaService all such right, title, and interest, including all Intellectual Property Rights therein. Nothing in this Agreement will confer on Customer any right of ownership or interest in Stella Connect, the Developments, or the Intellectual Property Rights therein. StellaService reserves all rights in Stella Connect not expressly granted under this Agreement, whether arising under the theories of license or estoppel.
(b) If Customer provides StellaService with any suggestions, ideas, feedback, reports, error identifications or other information related to Stella Connect or Customer’s use and evaluation thereof (“Feedback”), Customer hereby assigns to StellaService all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and shall assist StellaService in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback.
6. SECURITY. StellaService uses reasonable physical, managerial, and technical safeguards to preserve the integrity and security of Customer Data. Customer acknowledges that, notwithstanding such security precautions, use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Stella Connect and Customer Data. Accordingly, StellaService cannot and does not guarantee the privacy, security, integrity or authenticity of any information so transmitted over or stored in any system connected to the Internet or that any such security precautions will be adequate or sufficient.
7. CUSTOMER OBLIGATIONS.
7.1 Hardware. Customer is solely responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use Stella Connect, and for paying all third-party fees and access charges (e.g., ISP, telecommunications) incurred while using Stella Connect.
7.2 Conduct. Customer represents and warrants that Customer: (a) will abide by all local, state, national, and international laws, rules, and regulations applicable to Customer’s use of Stella Connect, including without limitation, all applicable privacy laws, data protection legislation, and laws regarding e-mail marketing and the transmission of commercial email; (b) has all necessary rights to enter into this Agreement without violation of any other agreement or understanding to which it is bound and provide and use any data and/or content (including Customer Data) that Customer provides or makes available to StellaService in connection with Customer’s or its Authorized User’s use of Stella Connect and that StellaService’s use thereof as contemplated by this Agreement will not violate any right of any third party or any law, rule, or regulation; (c) will not provide any content or information in violation of any fiduciary duty, duty of confidentiality, or contractual obligation; (d) will not transmit through or store on Stella Connect any data or content in violation of the rights of any individual or entity in any jurisdiction, including without limitation, rights of privacy, rights of publicity, trade secret rights, or any Intellectual Property Rights; (e) will not use Stella Connect for illegal, fraudulent, unethical or inappropriate purposes; (f) will not interfere or disrupt networks connected to StellaService Service or interfere with the ability of others to access or use Stella Connect; and (g) will not transmit or upload any material or otherwise use Stella Connect in any manner that could constitute a criminal offense or give rise to civil liability. Customer acknowledges that Customer is solely responsible for any Customer Data and other content that Customer makes available to Stella Connect and that Stella Connect is a passive conduit. StellaService neither endorses the contents of any of Customer Data nor assumes any responsibility for any infringement of third party rights arising therefrom or any crime facilitated thereby. Customer shall notify StellaService if Customer becomes aware that Stella Connect is being used for any illegal or unauthorized purpose.
8. FEES AND TAXES.
8.1 Fees and Payment. Customer shall pay StellaService the fees set forth in any Order Form(s) executed between the parties (“Fees”) in accordance with the payment terms set forth in such Order Form(s).
8.2 Taxes. All Fees are exclusive of all taxes, levies or duties, and Customer is, and shall be, responsible for payment of such taxes, levies or duties resulting from its use of Stella Connect, excluding only federal and state taxes based solely upon StellaService’s net income, whether invoiced on the applicable Order Form or paid in advance by StellaService and later invoiced to Customer. If StellaService has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 8.2, StellaService will invoice the amount of such taxes to Customer and Customer shall pay such amount, unless Customer provides StellaService with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.1 Agreement Term. This Agreement shall commence on the day Customer first agrees to be bound by these terms and, unless earlier terminated pursuant to Section 10, shall continue until the termination or expiration of all Order Forms entered into between the parties or the expiration of the Evaluation Period, including any renewal terms contemplated thereon, in accordance with the terms and conditions of such Order Forms (the “Term”).
10.1 Termination. During the Evaluation Period, either party may terminate this Agreement at any time for any reason or no reason upon written notice to the other party, without liability. After the Evaluation Period, if either party defaults in the performance of any material provision of this Agreement, then the other party may give written notice to the defaulting party that if the default is not cured within thirty (30) days, this Agreement will be terminated along with any Order Form(s) then in effect. If the non-breaching party gives such notice and the default is not cured during the thirty (30) day period, then this Agreement and any Order Form(s) then in effect shall automatically terminate at the end of that thirty (30) day period. Notwithstanding the foregoing, StellaService may immediately terminate this Agreement and any Order Form(s) then in effect and the rights granted hereunder and thereunder in the event of any breach or alleged breach by Customer of Sections 3, 5.2, or 7.2 of this Agreement (or any portion thereof).
10.2 Effect of Termination. Upon the effective date of expiration of the Term or termination of this Agreement for any reason, whether by Customer or StellaService: (a) all licenses granted to Customer hereunder shall terminate; (b) Customer’s right to use Stella Connect shall cease; and (c) Customer shall immediately cease accessing and using Stella Connect. Sections 1, 3, 5, 7.2, 8 (to the extent not satisfied during the Term of this Agreement), 10.2, and 11 – 15 of this Agreement shall survive its expiration or termination for any reason. Any outstanding balance through the date of termination shall immediately become due and payable in full. All Fees paid by Customer hereunder are nonrefundable; provided, that if Customer terminates this Agreement for breach in accordance with Section 10.1, StellaService shall refund Customer an amount equal to the unused portion of the Fees paid.
(a) Each of the parties shall maintain in confidence any non-public, confidential or proprietary information disclosed before, on or after the commencement of the Term by either party to the other party, either directly or indirectly, whether disclosed orally or disclosed or accessed in written, electronic or any other form or media, whether tangible or intangible, and whether or not marked, designated, or otherwise identified as “confidential.” (“Confidential Information”). The receiving party (including, for Customer, its Authorized Users) shall not disclose, use, transmit, inform or make available to any third party any Confidential Information of the disclosing party, and shall not use any Confidential Information of the other party except as a necessary part of performing its obligations under this Agreement. Each party shall take all actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information of the other party and such party’s’ respective rights therein, at all times exercising at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. Each party shall restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder. StellaService’s “Confidential Information” includes, without limitation, Stella Connect (and all components thereof) and the terms of this Agreement (including, without limitation, any Fees payable hereunder).
(b) StellaService will store all Consumer PII encrypted at rest. Third-party facilitators handling any Consumer PII are SOC2 TypeII certified.
11.2 Exclusions. Confidential Information shall not include any information that is (a) already rightfully known to the receiving party at the time of the disclosure; (b) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (c) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; (d) of the type described in Section 5.1(b)(i)(2) or (3); or (e) communicated to a third party by the receiving party with the express written consent of the disclosing party. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the disclosing party so that the disclosing party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
11.3 Destruction or Return of Confidential Information, Customer Data and Consumer PII.
(a) Upon expiration of the Term or termination of this Agreement for any reason, the receiving party shall, upon written request of the disclosing party, return to the disclosing party, or destroy (with written certification of the same), all copies of the disclosing party’s Confidential Information, Customer Data and Consumer PII. except for archival and back-up copies on back-up tapes and if, and to the extent, the receiving party is required to retain such material under applicable laws or regulations
(b) StellaService will make available to Customer a mechanism to delete Customer Data or Consumer PII upon request
11.4 Remedies. Each party acknowledges and agrees that the Confidential Information has been developed at significant cost and has significant commercial value to the other party, and that a party may suffer irreparable damage as a result of any breach of this Agreement by the other party. Therefore, in addition to all other remedies available at law (which neither party waives by the exercise of any rights hereunder), each party shall be entitled to specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and each party hereby waives any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
12. WARRANTY DISCLAIMER. CUSTOMER ACKNOWLEDGES THAT STELLA CONNECT IS PROVIDED ON AN ‘”AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STELLASERVICE, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES OF ANY KIND (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO STELLA CONNECT, INCLUDING, WITHOUT LIMITATION, THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. STELLASERVICE FURTHER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING OUT OF OR RELATING TO ANY THIRD PARTY SITES LINKED TO FROM STELLA CONNECT. STELLASERVICE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN STELLA CONNECT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF STELLA CONNECT WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. STELLASERVICE IS NOT OBLIGATED TO PROVIDE CUSTOMER WITH ANY UPDATES TO STELLA CONNECT BUT MAY ELECT TO DO SO IN ITS SOLE DISCRETION.
13.1 Each party (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the other party and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by Indemnified Party (collectively, “Losses”) arising out of any third party claim alleging: (a) material breach or non-fulfillment of any representation, warranty or covenant under this Agreement by Indemnifying Party (including, for Customer, its Authorized Users) or (b) any grossly negligent or more culpable act or omission of Indemnifying Party (including, for Customer, its Authorized Users), including any reckless or willful misconduct, in connection with the performance of its obligations under this Agreement.
13.2 Additionally, Customer shall indemnify, hold harmless, and defend StellaService and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all Losses arising out of any third party claim (a) alleging a breach of Sections 3, 7.2 or 11 by Customer or any Authorized User; or (b) relating to, or arising out of, the misuse of StellaService Data by Customer or any Authorized User.
13.3 Additionally, StellaService shall indemnify, hold harmless, and defend Customer and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all Losses arising out of any third party claim (other than by an affiliate of Customer) to the extent that such Losses arise from a finding by a court of competent jurisdiction that Customer’s or an Authorized User’s use of Stella Connect in compliance with this Agreement infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Losses arising out of or relating to any: (a) access to or use of Stella Connect or other components of the StellaService Site in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by StellaService; (b) modification of Stella Connect other than: (i) by or on behalf of StellaService or (ii) with StellaService’s written approval in accordance with StellaService’s written specification; or (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of StellaService.
13.4 Each party shall give the other (a) prompt written notice of any claims arising hereunder, (b) full information relating to such claim and reasonable cooperation (which, for Customer’s obligations under Section 13.2, shall be at Customer’s expense and for StellaService’s obligations under Section 13.3, shall be at StellaService’s expense) and (c) full (and sole) authority to defend or settle the claim or suit. Notwithstanding the foregoing, (x) each party may participate with counsel of its own choosing at its own expense and any portion of any settlement or compromise which constitutes an admission or requires contribution from the other party shall be subject to the prior written approval of the other party, and (y) failure to notify the other party of any claims arising hereunder shall not diminish indemnity obligations hereunder except to the extent such delay actually prejudices defense of such matter.
14. LIMITATION OF LIABILITY.
14.1 Exclusive Remedy. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGES ARISING HEREUNDER DURING THE EVALUATION PERIOD IS TO TERMINATE ITS USE OF STELLA CONNECT AND THIS AGREEMENT IN ACCORDANCE WITH SECTION 10.1.
14.2 Consequential Damages Waiver. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR, FOR STELLASERVICE, ITS LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE RELATIONSHIP CONTEMPLATED HEREBY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.3 Limitation of Damages. IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY TO CUSTOMER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER TO STELLASERVICE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.
14.4 Essential Purpose. The limitations set forth in this Section 14 shall apply even if this Agreement or any limited remedy specified herein is found to have failed of its essential purpose. These limitations are integral to the calculation of fees in connection with the license of Stella Connect, and were StellaService to assume any further liability, such consideration would out of necessity been substantially increased.
15.1 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered in person, mailed by first class mail, postage prepaid, (registered or certified) or by overnight courier, or sent by fax or electronic mail with confirming copy sent by mail or courier as set forth above, to the party to receive the notice at such address as either party may specify to the other in writing at sign-up or in accordance with this Section. All such notices shall be effective upon receipt.
15.2 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, provided, however, that either party may assign this Agreement without the other party’s prior written consent to any entity that acquires all or substantially all of the business or assets of such party, whether by merger, reorganization, acquisition, sale or otherwise. Any assignment made in violation with this provision shall be void, and this Agreement shall benefit and bind the permitted successors and assigns of the parties.
15.3 Relationship of Parties. StellaService and Customer’s relationship is solely that of independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between StellaService and Customer. Neither StellaService nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
15.4 Export Control. Customer understands and acknowledges that Stella Connect and technology are subject to regulation by agencies of the United States, including, but not limited to, the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of StellaService to provide Stella Connect and technology shall be subject in all respects to such laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including without limitation the U.S. Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations issued by the U.S. Department of Commerce, Bureau of Export Administration. Customer represents and warrants that Customer will comply with the U.S. Export Administration Regulations and other laws and regulations governing exports in effect from time to time.
15.5 U.S. Government-restricted Rights. If Stella Connect is licensed to the United States government or any agency thereof, then Stella Connect will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of Stella Connect and any accompanying Documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
15.6 Click wrap; Counterparts. This Agreement may be executed via click wrap or in counterparts, including counterparts delivered electronically, each of which will be deemed to be an original and such counterparts together will constitute one and the same agreement.
15.7 Governing Law; Venue. This Agreement shall be governed by the laws of the State of New York, excluding its conflict of laws rules. The United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction and venue of the federal and state courts located in the Borough of Manhattan, New York, New York, and the parties consent to the personal and exclusive jurisdiction of these courts. The parties specifically agree that, in the event that there is a dispute under this Agreement no such dispute shall be resolved by jury trial. THE PARTIES HERETO WAIVE ALL RIGHTS TO A JURY TRIAL FOR ANY DISPUTES ARISING UNDER THIS AGREEMENT, INCLUDING DISPUTES AS TO WHETHER ATTORNEYS’ FEES OR OTHER DAMAGES ARE DUE HEREUNDER.
15.8 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
15.9 Severability. If any provision of this Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the parties shall negotiate in good faith amendments to this Agreement to reflect the original intent of the parties as closely as possible. Such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
15.10 Force Majeure. Neither party shall be in default if its failure to perform any obligation under this Agreement is caused by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.
15.11 Entire Agreement. This Agreement, together with all Order Forms and Documentation, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. This Agreement may not be amended, except by mutual written agreement.