Terms and Conditions

This Terms and Conditions (“Agreement“) is a binding agreement between Neostella LLC, a Wisconsin limited liability company located at 325 E Chicago Street, 5th Floor, Milwaukee, WI 53202 (“Neostella“) and the business customer listed in the Quote (“Customer“), effective on the date Customer executes the Quote (“Effective Date“). Capitalized terms not defined herein have the definitions set forth in the Quote.

1. Definitions. Capitalized terms are defined as set forth below and throughout the Agreement:
   1. “Aggregated Data” means any usage or performance data or information, such as session information or details regarding any use of the Product or related Services.
      
      
   2. “Customer Processes” means any techniques, processes, integrations, know-how, tools, work-flows, or code that are (i) owned, created, or otherwise licensed by Customer prior to and as of the Effective Date or (ii) created, developed, acquired, or licensed independently from this Agreement on or after the Effective Date.
      
      
   3. “Documentation” any documents or materials that may be provided by Neostella to Customer which describe the functionality, components, features, or requirements of the Products.
      
      
   4. “Products” means the software listed in the Quote that Customer purchases a subscription to access (including hosting services if included within the Quote), including any Documentation.
      
      
   5. “Quote” means the Neostella quotation referencing this Agreement that describes the Products and Services purchased by Customer. This Agreement is part of the Quote.
      
      
   6. “Services” means those services that are specifically identified in the Quote and purchased by Customer, and may include robotic process automation, configuration services, training, or support services, if any.
      
      
2. Scope.
   1. License to Products. Subject to the terms of this Agreement, Neostella grants Customer during the License Term, a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use the Products specified in the Quote solely for Customer’s internal business purposes.
      
      
   2. Professional Services. Unless Customer purchases professional services, custom robotic process development services, or implementation services for the Products directly from Neostella by executing a separate professional services agreement, Neostella has no obligation to provide such services to Customer.
      
      
   3. Third-Party Services. The Products may contain or may be used with third-party components, cloud applications, software, application programming interfaces, or third party content (collectively, “Third Party Services”). Customer’s access to or use of such Third Party Services shall be subject to applicable third-party terms and conditions for such Third Party Services, to the extent any such terms are required by the third party licensor. Customer agrees to comply with any applicable third-party terms and conditions.
      
      
3. Quotes. By executing the Quote, Customer agrees that it is executing, and bound by, the terms and conditions of this Agreement. Upon execution, a Quote becomes part of the Agreement and is expressly incorporated with this reference. In the event of conflict between the Quote and the Agreement, the Quote shall control.
   
   
4. Fees and Payments.
   1. Customer shall pay to Neostella the fees set forth in the Quote (“Fees“). Fees will be invoiced and paid in U.S. dollars and are non-cancelable and non-refundable. Unless otherwise stated in the Quote: (i) Fees for Products will be invoiced annually in advance; (ii) Fees for Services will be invoiced monthly as incurred; and (iii) Fees are due upon receipt of invoice. Customer’s first payment for Fees will be invoiced on the Invoice Date set forth in the Quote. Fees do not include sales, use, excise and other applicable taxes and duties (“Taxes“), which are solely the responsibility of Customer, excluding taxes based on Neostella’s income. Neostella will invoice Customer for all applicable Taxes unless Customer timely provides to Neostella a valid tax exemption certificate.
      
      
   2. Customer must notify Neostella in writing of any good faith payment dispute within ten (10) days of the Invoice Date stated in the Quote and the parties will work together amicably to resolve any such disputes prior to the payment due date. For any Fees not paid when due, Neostella may charge Customer late payment interest charges of the lesser of 1.5% per month or the maximum rate permitted by applicable law. Customer is responsible for all attorneys’ fees and collection costs incurred by Neostella in collecting amounts owed. Neostella may suspend Customer’s access to the Products in the event any Fees are more than 30 days past due. Neostella may apply unapplied funds due to Customer to outstanding Fees owed under this Agreement.
      
      
5. Intellectual Property Rights.
   1. All right, title and interest in and to the Services, Product, and Aggregated Data remain with Neostella or its licensors. This Agreement does not grant Customer any rights, implied or otherwise, to Neostella’s or its licensors’ intellectual property rights. Neostella and its licensors own and retain all intellectual property rights in and to the Products, including without limitation any integrations, code, patches, materials, data, know-how, background technology, workflows or similar assistance otherwise provided to Customer. Neostella retains all intellectual property rights in and to all pre-existing tools, software, databases, methodologies, and documents. Customer acknowledges that if it provides any suggestions or feedback to Neostella, it does so voluntarily and Neostella and its licensors will be entitled to use any suggestions or feedback, in any way and for any purpose in relation to the Products and Services, without compensation or attribution to Customer.
      
      
   2. In the event Customer uses or imports any Customer Process into the Product during Customer’s use of the Product, or in the event Neostella accesses a Customer Process in connection with, or for the purpose of, the provision of any Service under this Agreement, Customer shall retain all right, title and interest to such Customer Process. Customer grants Neostella a non-exclusive, revocable, limited license to use the applicable Customer Process necessary to perform the Services, if any.
      
      
6. Limited Warranty. Neostella warrants that, during the License Term: (i) the Products will substantially conform to the Documentation, provided that Customer uses the Products strictly in accordance with the terms of this Agreement and the Documentation; and (ii) the Services will be provided in a professional and workmanlike manner. Customer’s sole and exclusive remedy, and Neostella’s sole and exclusive liability for any breach of the limited warranty is: (a) in Neostella’s sole discretion, to use commercially reasonable efforts to repair or replace the nonconforming Product so as to make it conforming; or (b) if Neostella in its sole discretion determines that such repair or replacement is commercially infeasible, to terminate the relevant Quote and Agreement and issue Customer a pro-rata refund of any pre-paid fees for the affected Product paid but unused. The foregoing remedy is not available unless Customer promptly provides written notice of the breach to Neostella. The foregoing remedies apply even if such stated remedy should fail of its essential purpose.
   
   
7. Mutual Representations. Each party represents to the other that: (i) it is duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the power and authority to enter into and perform its obligations under this Agreement; (ii) the person executing and delivering this Agreement on behalf of such party is duly authorized to make such execution and delivery; (iii) this Agreement constitutes a valid obligation, binding upon and enforceable against each such party in accordance with its terms; and (iv) execution and delivery of this Agreement and the performance of each such party’s obligations do not breach any contract between such party and any third party.
   
   
8. DISCLAIMER. SUBJECT TO THE LIMITED REPRESENTATIONS AND WARRANTIES IN SECTION 6 AND 7 OF THIS AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS”. NEOSTELLA AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND COVENANTS, WHETHER EXPRESS OR IMPLIED, ARISING OUT OF, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ACCURACY OF DATA, AS WELL AS ANY WARRANTIES ARISING FROM STATUTE, COURSE OF PERFORMANCE, COURSE OF DEALING, ORUSAGE IN TRADE. NEOSTELLA DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED OR CORRECTABLE. NEOSTELLA SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE PRODUCT WILL BE ABLE TO INTEGRATE OR INTEROPERATE WITH ANY OTHER CUSTOMER PROCESS, SOFTWARE OR SERVICES, WHETHER PROVIDED BY NEOSTELLA OR BY A THIRD-PARTY.
   
   
9. Restrictions.
   1. Customer will not: (i) assign, sublicense, sell, resell, lease, rent or otherwise transfer Customer’s rights under this Agreement to any third party, including, but not limited to using the Products or Services in a time-sharing, outsourcing or service bureau environment; (ii) use the Products outside of the scope of the licenses granted in this Agreement; (iii) adapt, alter, modify, improve, translate or create derivative works of the Products or Services; or (iv) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Products or Services.
      
      
   2. Customer will not use the Products or Services: (i) in any manner that is not in compliance with applicable law or this Agreement; (ii) to display, transmit, distribute or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content or information of any kind; (iii) to defraud or deceive any third party; (iv) to build a similar or competitive product or service; (v) with any device, software, or routine that damages, interferes with or disrupts the integrity, performance or use of the Products or Services; or (vi) to perform any type of security testing, including penetration testing. Customer will not conceal, remove or alter any proprietary notice or legend in the Products.
      
      
10. Term and Termination.
    1. Term. This Agreement begins on the Effective Date and ends conterminously with the License End Date set forth in the Quote. The License Term shall be twelve (12) months, starting on the License Start Date, unless a different License Term is set forth in the Quote. The Agreement and the Quote will auto renew unless notice of non-renewal is provided by either party 45 days prior to the License End Date.
       
       
    2. Termination For Cause. A party may terminate this Agreement upon written notice if the other party fails to cure a material breach of this Agreement within thirty (30) days of the date that written notice of such material breach is sent by the non-breaching party.
       
       
    3. Other Termination Rights. In addition, Neostella may terminate the Agreement immediately upon written notice to Customer if any of the following occur: (i) Neostella’s license with any of its applicable licensors terminates or expires; (ii) Customer files a petition for bankruptcy or is adjudicated bankrupt, a petition of bankruptcy is filed against Customer and not dismissed within sixty (60) days, or (iii) Customer admits in writing or in a legal proceeding that it is insolvent and/or unable to pay its debts as they come due.
       
       
    4. Suspension. Neostella may suspend Customer’s access to the Products and/or Services immediately without notice: (i) if Customer does not pay any Fees within thirty (30) days of when due under this Agreement; (ii) for any circumstances in which Neostella has a right to terminate the Agreement; (iii) if Neostella determines that suspension is necessary to prevent a violation of law, misuse of the Products, or (iv) if there is a safety or security risk.
       
       
    5. Effects of Termination. At termination of this Agreement, Customer shall: (i) immediately discontinue use of all Products and Documentation (and Neostella may immediately terminate Customer’s access to the Products); (ii) delete all copies of the Products and associated Documentation; (iv) pay all Fees owed; and (v) certify in a signed writing to Neostella that it has complied with the terms of this Section. Neostella has no obligation to provide or make accessible any data after termination.
       
       
    6. Survival. All provisions of this Agreement that by their nature are intended to extend beyond the termination of this Agreement for any reason shall survive the termination of this Agreement.
       
       
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEOSTELLA AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS (“REPRESENTATIVES”) SHALL NOT BE LIABLE TO CUSTOMER, OR TO ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR CLAIMS FOR LOST PROFITS, LOST TIME, LOST DATA, LOST REVENUE, OR LOSS OF USE IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, AND EVEN NEOSTELLA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NEOSTELLA’S OR ITS REPRESENTATIVES’ AGGREGATE LIABILITY FOR ANY CLAIMS ARISING RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO NEOSTELLA UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM, EVEN IF ANY REMEDIES HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
    
    
12. Indemnification. Customer shall indemnify, defend and hold harmless Neostella and its Representatives from and against any claims, suits, allegations, settlements, actions, losses, liabilities, damages, penalties, expenses, courts costs and attorneys’ fees arising from or relating to: (a) Customer’s use of the Products or Services; (b) Customer’s breach of this Agreement; (c) Customer’s violation of applicable laws; and (d) Customer’s negligence, fraud, recklessness or willful misconduct.
    
    
13. Confidentiality. “Confidential Information” is the confidential or proprietary information of Neostella or its affiliates disclosed to Customer prior to and during the term of this Agreement, including without limitation the terms, conditions and pricing in this Agreement and the Quote. Customer shall only use Confidential Information for Customer to perform its obligations or exercise its rights under the Agreement. Customer shall protect Confidential Information in at least the same manner as it protects its own, similar, confidential information, but in no case using less than a reasonable standard of care. Customer shall not disclose Confidential Information to any party or person other than its employees who have a need to know to perform under this Agreement and who are subject to an obligation of confidentiality at least as protective as described herein. At termination or expiration of this Agreement Customer shall promptly return or destroy Neostella’s Confidential Information (whichever is requested), and thereafter promptly provide written notice of compliance with this clause.
    
    
14. General Terms.
    1. Governing Law and Venue. This Agreement, and any disputes arising hereunder, shall be governed by the laws of the state of Wisconsin, United States, without regard to its conflicts of law principles. Customer agrees to exclusive jurisdiction and venue in the state and federal courts having jurisdiction in Milwaukee County, Wisconsin, U.S. and irrevocably consents to personal jurisdiction in such courts. Each party shall comply with all applicable laws, rules and regulations relating to its performance under this Agreement. Without limiting the generality of the foregoing, Customer shall comply with all applicable import and export laws, rules and regulations.
       
       
    2. Notices. Any notice required to be given under this Agreement shall be deemed to have been properly given and effective: (i) three (3) days after mailing if mailed first-class; or (ii) on the day the notice is delivered by facsimile or email if proof of receipt is received. All notices to Neostella shall be to the mailing address listed on page 1 of this Agreement. Neostella may provide notice to Customer using any contact information provided by Customer to Neostella.
       
       
    3. Assignment. Customer may not assign this Agreement to a third party, without the advanced written consent of Neostella. Any assignment in violation of this clause is void. Notwithstanding the foregoing, either party may assign the Agreement without the prior consent of the other party to an affiliate of such party, or in the case of: (i) a merger, (ii) a transfer of more than 50% of the equity ownership of the assigning party, (iii) or the sale of all or substantially all of the assigning party’s stocks or assets. In the event Customer assigns this Agreement pursuant to this clause, such assignee must first assume all of Customer’s rights and obligations hereunder in a signed writing. Neostella may assign any of it rights or subcontract any of its obligations hereunder without notice or consent.
       
       
    4. Force Majeure. No delay, failure, or default by Neostella will constitute a breach of this Agreement to the extent it results from causes beyond the reasonable control of Neostella, including acts of War, terrorism, weather, acts of God or nature, strikes, labor disputes, riots, civil disorder, embargo, internet outage, health crisis, pandemic (including COVID-19), earthquake or the like.
       
       
    5. Use of Names. Without Neostella’s prior written consent, Customer shall not: (i) use the names, trademarks, trade names, service marks, insignia, or logos of Neostella or its licensors; or (ii) refer to Neostella in any marketing, promotional, advertisement, press release, website, or other similar or dissimilar materials. Neostella may name Customer as its customer in its marketing materials and website.
       
       
    6. Waiver; Severability; Relationship. Waivers of rights, obligations, or breaches may only occur in a signed writing by the waiving party. Any provisions of this Agreement held invalid shall be severed and the remaining provisions shall continue in full force and effect. The parties shall be, and shall act as, independent contractors pursuant to this Agreement.
       
       
    7. Entire Agreement. This Agreement and the Quote constitute the entire agreement between the parties with regard to the subject matter herein and supersede all prior or contemporaneous negotiations, discussions, understandings or agreements between the parties. Any amendment or modification to this Agreement and the Quote must be in writing and signed by the authorized representatives of both parties to be effective