MEASURED BY STELLASERVICE SUBSCRIPTION LICENSE AGREEMENT

This Measured by StellaService Service Subscription Agreement is the legally binding terms and conditions to which you must agree in order to subscribe to the services described herein.

IMPORTANT – READ CAREFULLY BEFORE PROCEEDING – THIS IS A BINDING LEGAL CONTRACT
YOU UNDERSTAND AND AGREE THAT BY CHECKING THE BOX AND CLICKING THE “ACCEPT” BUTTON BELOW YOU ARE AGREEING TO BE LEGALLY BOUND BY ALL OF THESE TERMS AND CONDITIONS.

This Measured By StellaService Subscription Agreement (this “Agreement”) is entered into between StellaService Inc. (“Company”, “we”, “our” or “us”) and you (i.e., the corporation, business, other entity, or natural person who operates the domain that will subscribe to the Service (as defined below) (“Licensee”, “you” or “your”) and sets forth your rights and obligations with respect to your use of a Measured by StellaService Seal.

Certain Definitions

a.) “Acceptable Levels” means that you (i) ship products reasonably promptly after charging your customers for such products, (ii) reasonably promptly issue refunds for eligible returns of products, (iii) reasonably promptly respond to your customer’s inquiries about your products and (iv) do not engage in poor business practices or fraudulent activities with respect to your e-commerce customer service.
b.) “Application” means an electronic request submitted to the Company to obtain the right to use the Service.
c.) “Data Licensing Feed” means a regularly updated data file of customer service information on subscribers and other retailers which Company makes available to third party sites or search engines that publish customer service information (“Publishing Sites”).
d.) “Domain” means the e-commerce Domain, website, application or other online service owned or controlled by you which will display a Seal.
e.) “Effective Date” means the date on which your Application has been accepted by Company and an Order Form under this Agreement (“Order Form”) has been signed by you and Company.
f.) “Fee” means the non-refundable amount you paid for your subscription for the Service as specified on the Order Form.
g.) “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible intellectual property rights, including, but not limited to, all (a) rights associated with works of authorship throughout the universe, including, without limitation, copyrights, moral rights, and mask-works, (b) trade identities, trademarks, service marks, domain names and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and property rights (of every kind and nature throughout the universe and however designated) (including logos, “rental” rights and rights to remuneration), whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force in any rights in any of the foregoing.
h.) “Profile Page” means a page published on StellaService.com displaying high level data about your e-commerce site’s customer service performance.
i.) “Seal” means the “Measured by StellaService Seal” (the “Measured Seal”), the format and/or appearance of which Company may change from time to time, made available by us to you in an electronic or other form that is intended for display on a domain, website, application or other online service as well as in other Company-approved advertising campaigns (e.g., print materials, email marketing or display ads) in accordance with the terms of this Agreement.
j.) “Seal Installation Instructions” means the set of instructions that you receive when you
download a Seal.
k.) “Service” means the rights and privileges granted to you herein by Company, including, but not limited to, the right to display a Seal.

2) Application Process

a.) To apply for the Service each applicant must check the box and click the “Accept” button below and then submit an Application to Company.
b.) Company reserves the right to reject any subscriber’s Application if Company determines in its sole discretion that such subscriber’s industry is outside of the industries generally measured by Company. In such event, Company will email the applicant that Company is unable to accept their Application and will not be charging their credit card with the Fee.
c.) When Company accepts an Application such applicant will receive an email copy of the credit card receipt for the Fee.

3) The Service

a.) Subject to the terms and conditions of this Agreement, by entering into this Agreement and paying the Fee, you are entitled to participate in the Service for the Term (as defined below), as follows:
(i) Within 10 days of the date that you subscribe for the Service, Company will transmit to you the Seal Installation Instructions for the Measured Seal;
(ii) Within 120 days of the date you subscribe for the Service, Company will publish on its website a Profile Page dedicated to you;
(iii) Within 120 days of the date you subscribe for the Service, Company will include you in its Data Licensing Feed

You acknowledge and agree Company shall have no liability to you with respect to the contents of the Data Licensing Feed or Profile Page provided that such contents reasonably reflect the measurements of your customer service by Company.

Existing Metrics customers of StellaService which choose to receive the Service may do so by checking the box and clicking the “Accept” button below without the need for signing an Order Form or paying the Fee. Notwithstanding anything to the contrary contained in this Agreement, the Term for such Metrics customers will terminate upon the termination of such customers’ StellaService Metrics Terms And Conditions.

4) Seal License and License Restrictions

a.) Subject to approval of your Application and to your ongoing compliance with the terms and conditions of this Agreement, Company grants you a limited, personal, non- exclusive, non-transferable, non-sublicenseable, revocable license, during the Term, to download, install, incorporate, display solely on your Domain in accordance with the Seal Installation Instructions, one or more copies of the designated Seal we make available to you and solely for the purpose of identifying that your e-commerce customer services are being measured by Company. If you obtain our prior written permission to display the Seal on marketing materials beyond your Service (e.g., printed materials, email marketing, display ads, etc.), the license grant in this Section 3(a) shall also apply to any such materials but only in the specific form and formats that we have so approved.
b.) During the Term, Company will periodically review Customer’s e-commerce customer service:
(i) Company reserves the right to rescind your Measured Seal, in the event that your customer service falls below Acceptable Levels or you are acting in such a way as to tarnish Company’s reputation. In such event, Company will notify you specifying in reasonable detail your acts or omissions that have given rise to such a notice from us. You will have five business days to solve such problems and assure us by notice that the situation has been rectified. If you are unable to do so in such time period in the reasonable judgment of Company, we will send you a further notice that this Agreement has been terminated effective immediately, in which event you will not be entitled to any refund of any portion of the Fee.
c.) You shall not, nor shall you permit any third party to: (i) use any Seal for or on behalf of any Domain other than the Domain named in your Application; (ii) use any Seal in the absence of the Profile Page without our prior written approval; (iii) copy, sell, rent, lease, license, transfer, assign, make derivative works or sublicense any Seal, or rights in any Seal, in whole or in part, to any third party; (iv) alter or tamper with any Seal in any way, including, but not limited to, skewing, modifying the color, size, pattern and fonts, and separating logo elements, copyright and trademark indicators, or attempting to alter or suppress access to the Profile Page; (v) disassemble, decompile, reverse assemble, reverse compile, reverse engineer, or otherwise translate any Seal or otherwise attempt to gain access to the source code to any Seal, or use any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, any Seal; (vi) use Company’s name, logos or other Intellectual Property Rights to market your products or services; (vii) take any action that will interfere with or diminish Company’s rights in any Seal or will interfere with the performance or functionality of a Seal. You represent, warrant and covenant that your Domain (including any content therein), will not: (i) infringe the copyright, trademark, trade secret, or other Intellectual Property Rights, proprietary or other right of others; (ii) violate the privacy, publicity, or other rights of third parties; (iii) be discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion; (iv) misrepresent the site location that actually subscribed for or earned a Seal; (v) contain any virus, Trojan horse, worm, time bomb, cancelbot, or other disabling device or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) advocate or encourage any illegal activity; or (vii) have the potential to create liability for us or cause us to violate the requirements of, or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
d.) The Seal is owned by Company, is copyrighted and is licensed to you herein not sold. Except as to the limited license granted to you under Section 3(a) above, Company retains all ownership rights, Intellectual Property Rights, licensing rights and all other interests in and to the Seal and all other trademarks, service marks and certification marks of the Company, now or hereafter in existence, as well as all goodwill associated with the Seal. You have no rights to the source code for any Seal, and you agree that only Company has the right to maintain, enhance, or otherwise modify any Seal.

5) Your License To Us
a.) You grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with right to sublicense) to use your name, logos, trademarks, trade names and service marks (collectively, the “Marks”) to: (i) advertise, market, promote and publicize our Seal program and our products and services in any manner and methods, including, without limitation, placing your name and logo and a link to your Domain on the StellaService website; and (ii) display any Marks on your Profile Page on the StellaService site as well as the Publishing Sites.

6) Term and Termination

a.) This Agreement shall begin on the Effective Date and continue through such period covered by the Fee, unless earlier terminated in accordance with the terms hereof (the “Term”).
b.) You may terminate this Agreement for convenience upon thirty (30) days written notice to us, in which event you shall not be entitled to any refund of any portion of the Fee.
c.) Company shall have the right to immediately discontinue the Service and terminate this Agreement if (i) you violate or fail to comply with any of the terms and conditions in this Agreement; (ii) you terminate or suspend your Domain or you cease doing business.
d.) Upon termination or expiration of this Agreement, you shall immediately cease displaying any Seal in any tangible or intangible medium (including on printed materials) and you grant Company the right to immediately deactivate any services that we use to display the Seal on your Domain, and all aspects of the Service shall immediately terminate.

7) Representations and Warranties

You represent and warrant to Company that: (i) the person who accepted this Agreement on your behalf has been authorized by you to do so; (ii) you have the corporate power and authority to enter into, and perform your obligations under, the Agreement; (iii) no consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third-party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby; and (iv) all information you provide in your Application is true and correct at the time of submission, and such information does not infringe, misappropriate or violate the Intellectual Property Rights or any other rights of any third party.

8) Proprietary Rights

Except as otherwise expressly provided herein, nothing in this Agreement shall create any right of ownership or license in and to the other party’s Intellectual Property Rights, and each party shall continue to independently own and maintain its Intellectual Property Rights.

9) Data Rights and Privacy Matters

In consideration of the license granted to you in this Agreement, you agree that we may collect and retain ownership of all data related to an end user’s use of the Seal on your Domain (collectively, the “Data”). Our Data collection, use and disclosure practices are described more fully in our privacy policy and include the use of log information and cookies and other tracking technologies that record device or other persistent identifiers and usage information about end users and permits us to share the Data with third parties in an anonymous or aggregate manner. When an end user visits a page that contains a Seal, we may deploy tracking technologies on our own behalf or on behalf of one of the Publishing Sites, to record information about how an end user uses the web, such as the web search that landed the end user on a particular page, categories of the end user’s interests and third party site visitations by the user’s device.

10) Disclaimers of Warranties

THE SEAL AS WELL AS ALL SOFTWARE, MATERIALS, AND TECHNOLOGY USED TO PROVIDE ANY OF THE FOREGOING, ARE PROVIDED ON AN “AS IS” BASIS AND COMPANY AND ITS LICENSORS, IF ANY, MAKE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SEAL, DOCUMENTATION OR OTHER ACCOMPANYING MATERIAL OR SERVICES. COMPANY SPECIFICALLY DISCLAIMS (AND LICENSEE WAIVES) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, OR WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. ALL UNIFORM COMMERCIAL CODE WARRANTIES ARE EXPRESSLY DISCLAIMED BY COMPANY. COMPANY DOES NOT WARRANT THAT THE OPERATION OR OTHER USE OF THE SEAL WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO LICENSEE’S DATA, COMPUTERS OR NETWORKS OR THAT ERRORS WITH THE SEAL WILL BE FIXED BY COMPANY. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THESE TERMS. SOME STATES/JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT FULLY APPLY TO LICENSEE TO THE EXTENT REQUIRED TO COMPLY WITH APPLICABLE LAW.

11) Indemnity

You agree to indemnify, defend and hold harmless Company, its directors, shareholders, officers, agents, employees, successors and assigns from any and all third party claims, suits, proceedings, judgments, damages, and costs (including reasonable attorneys’ fees and expenses) arising out of, in connection with, or by reason of: (i) your breach or alleged breach of agreements, covenants, warranties and representations in this Agreement; (ii) any infringement, misappropriate or violation of any Intellectual Property Rights or other right of any person or entity by means of information or content provided by you, including by your Domain; (iii) violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of any Seal or your activities in connection with your Domain; or (iv) services provided by you or any act or omission on your part. Company shall promptly notify you of any such claim, and you shall bear full responsibility for the defense of such claim (including any settlements); provided, however, that: (x) any settlement in which any payment, admission or other affirmative act is required of Company shall be subject to Company’s advance written approval; and (y) Company shall have the right to participate in the defense or settlement of a claim with counsel of its choice at its own expense.

12) Limitations of Liability

YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO A SEAL, AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. IN NO EVENT WILL COMPANY, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL AND CONSEQUENTIAL DAMAGES OR LIKE DAMAGES, INCLUDING, LOST PROFITS, GOODWILL, LOST OPPORTUNITIES AND INTANGIBLE LOSSES, ARISING IN CONNECTION WITH A SEAL, SERVICES OR THESE TERMS, INCLUDING, FOR EXAMPLE AND CLARITY ONLY, DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITIES, OR BUSINESS INTERRUPTIONS, OR RESULTING FROM THE USE OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SEAL OR CONTENT. THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LICENSEE AGREES THAT OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH ANY VIOLATION OF THESE TERMS WILL NOT EXCEED THE AMOUNT OF THE FEE RECEIVED BY US FOR THE FIRST 12-MONTH PERIOD OF THE TERM. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.

13) Force Majeure

Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to acts of nature, war, terrorism or other events beyond the reasonable control of such party.

14) Confidential Information

You agree that the information provided to you regarding any Seal and access and use of any Seal contains confidential information, including trade secrets, know-how and other information that are the exclusive property of Company or its licensors. During the Term and at all times after the termination hereof, you shall maintain the confidentiality of this information and shall not sell, license, sublicense, publish, display, distribute, disclose, or otherwise make available this information to any third party nor use such information except as expressly authorized by this Agreement. You shall not disclose any such information concerning any Seal to parties who are not employees or permitted agents or contractors (including, without limitation, outsourcers) of yours without Company’s prior written consent. You agree that you will take appropriate action by instruction, agreement, or otherwise with your employees and permitted agents and contractors to satisfy your obligations under this Agreement with respect to use, protection, and security of Company’s confidential information. The obligations of confidentiality and restriction on use contained herein shall not apply to any confidential information that you are clearly able to demonstrate: (i) is required to be disclosed by applicable law or regulation; provided, you first give Company notice and an opportunity to limit the disclosure; (ii) was lawfully received by you from a third party, which third party was, to your knowledge, free of any obligation of confidentiality; (iii) was already in your lawful possession without an obligation to maintain its confidentiality prior to disclosure to you by Company; or (iv) becomes known to the general public not due to any act or omission by You.

15) Severability

If any term or provision of this Agreement is held invalid, illegal or unenforceable in any jurisdiction, this shall not invalidate or render unenforceable any other term or provision of this Agreement. Upon such determination the affected term or provision shall not be rendered void but shall be deemed amended to such extent as is necessary so that the term or provision can be interpreted and enforced to the full extent possible to carry out the intent of the parties.

16) Governing Law

This Agreement and all matters arising out of or relating to the interpretation or enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). You agree that this Agreement is made and partially performed in the City of New York, and that venue for any legal action to enforce or interpret this Agreement will be vested exclusively in the State and Federal courts having jurisdiction over the City of New York. You agree that such courts shall have, and you hereby waive all objections to the exercise of, personal jurisdiction over you with respect to any such actions or proceedings.

17) Waiver

No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

18) Non-Assignment

You may not assign this Agreement nor the rights granted hereunder, in whole or in part, and whether by operation of contract, law or otherwise, without Company’s prior express written consent. Such consent shall not be unreasonably withheld or delayed.

19) Notices and Communications

You will make all notices, demands or requests to Company with respect to this Agreement in writing to:
StellaService
75 Broad Street, 10th Floor
New York, NY 10004
Attn: Legal Counsel
For contractual purposes, you: (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may withdraw your consent to receive Communications electronically by contacting us in the manner described above. If you withdraw your consent, from that time forward, you must stop using the Seal. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption

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20) Security of Information

Company employs certain technological, physical, and managerial measures to enhance the security of the Service and has incorporated security measures to help protect against the loss, misuse or alteration of sensitive information including, but not limited to, credit card information (although Company uses a third party to process credit card payments). However, the internet is not a perfect service medium, security mechanisms are not infallible or impervious to attack, and data transmission over the Internet is not guaranteed to be completely secure. Consequently, Company cannot and does not warrant the security of the information which you provide to it or warrant that the information will not be intercepted by third parties. When you provide information (including credit card information) to Company for any purpose, you do so at your own risk.

21) Entire Agreement

This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.