Master Subscription Agreement

NEOSTELLA LLC

MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (“Agreement“) dated as of the date set forth on the Order (defined below) (“Effective Date“) is by and between Neostella LLC, a Wisconsin limited liability company located at 325 E Chicago Street, 5th Floor, Milwaukee, WI 53202 (“Neostella“) and the customer set forth on the Order (“Customer“).

1. Definitions. All capitalized words shall have the definitions set forth below, or otherwise throughout the Agreement:
   
   “Affiliates” means an entity of a party, whether incorporated or not, that Controls, is Controlled by, or is under common Control with such party.
   
   “API” means any application programming interface made available by or on behalf of Neostella to connect the Subscription Services with a Third-Party Program, including any Updates or Upgrades thereto.
   
   “Authorized Users” means any individuals who Customer permits to use the Subscription Services for Customer’s business purposes, by providing access credentials. Authorized Users cannot be direct competitors of, or employed by competitors of, Neostella.
   
   “Control” means the ability, whether directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise.
   
   “Customer Data” means the information input into the Subscription Services by the Authorized Users, whether directly or through a Third-Party Provider program (e.g. via Filevine) or an API. Customer Data expressly excludes Analytics Data, De-Identified Data, and any information gathered automatically by the Subscription Services (e.g., through use of cookies).
   
   “Documentation” means the specifications, training materials and user guides regarding the Subscription Services and API made available by Neostella.
   
   “Intellectual Property Rights” means all copyrights, trademarks, trade names, service marks, patents, trade secrets, proprietary marks, logos, as well as any related applications, registrations, moral rights, or common law rights, on a worldwide basis.
   
   “Order” means an order form by and between Customer and Neostella or a licensee of Neostella for access to the Subscription Services.
   
   “Personal Information” means any information that, alone or in combination with other information, may be used to contact, locate or identify a natural person, and is regulated by applicable data privacy and security laws.
   
   “Privacy Policy” means the Neostella Privacy Policy found here: https://www.neostella.com/privacy-policy/.
   
   “Subscription Services” means the Neostella software-as-a-service platform that provides certain services and automations made available by Neostella pursuant to this Agreement, including all Updates or Upgrades thereto, and which is further described in the Order.
   
   “Third-Party Program” means those third-party programs that Neostella has enabled, permitted to connect to, or integrated with the Subscription Services as permitted in the Documentation.
   
   “Updates” means bug fixes, error corrections and other minor updates to the Subscription Services or API(s) made available at no additional cost by Neostella to its customer base.
   
   “Upgrades” means enhancements, major modifications and new versions of the Subscription Services or API(s) for which Neostella may charge an additional fee(s).
   
   
2. Use Rights. Subject to Customer’s compliance with the terms of this Agreement, Neostella grants to Customer a limited, non-exclusive, terminable, non-assignable, non-transferable right for Customer to permit its Authorized Users to use the Subscription Services and related APIs in accordance with the Documentation and for Customer’s internal business purposes only, during the Term. The Subscription Services are neither licensed nor sold to Customer.
   
   Customer shall pay for the quantities set forth in the Order during the Term, even if Customer does not use quantities purchased at any given time. Any additional Subscription Services requested by Customer will be agreed to in an updated or additional Order.
   
   Customer may use the Documentation during the Term to aid in its use of the Subscription Services. Customer may make one copy of the Documentation for backup and training purposes only. All copies of the Documentation must contain Neostella’s copyright notices.
   
   
3. Authorized Users. Customer shall ensure that each Authorized User of the Subscription Services is informed of and agrees to abide by the applicable terms of this Agreement. Customer is solely responsible for all Authorized Users’ access to and use of the Subscription Services, and all use of Customer’s account or log-in credentials. Customer is responsible for maintaining the confidentiality of all usernames, passwords, and other log-in credentials used to access or use the Subscription Services. Customer will promptly notify Neostella of any misuse or unauthorized use of log-in credentials or other unauthorized access to or use of the Subscription Services of which Customer suspects or becomes aware.
   
   
4. Use Restrictions. Customer shall not, and shall not permit any third party to:
   
   1. Copy (except as expressly permitted in the “Use Rights” section of this Agreement), modify, distribute, rent, lease, sublicense, reverse engineer, create derivative works of, decompile, disassemble, transfer or publicly display the Subscription Services or Documentation, or provide time sharing or service bureau services with the Subscription Services;
      
      
   2. Access or attempt to access the source code of the Subscription Services;
      
      
   3. Upload any materials that infringe or misappropriate a third-party’s Intellectual Property Rights into the Subscription Services;
      
      
   4. Upload or transmit advertising or promotional content, or content contrary to Neostella’s intended purpose, into the Subscription Services;
      
      
   5. Modify markings, labels or notices of proprietary rights in the Subscription Services or Documentation;
      
      
   6. Transfer or use, or permit the use of, the Subscription Services or Documentation in a country that is subject to sanctions by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC), or any person on OFAC’s Specially Designated Nationals and Blocked Persons List, or other similar lists;
      
      
   7. Populate the Subscription Services with sensitive Personal Information, financial information (e.g. credit card information) or health related information, nor shall Customer populate the Services with Personal Information not permitted by the Documentation or not otherwise prompted by the fields in the Subscription Services;
      
      
   8. Develop any software, technology, or services that compete with or are substantially similar to the Subscription Services during the Term and for one (1) year thereafter;
      
      
   9. Send unsolicited emails, marketing emails or spam to third parties without the receiver’s consent (only transactional emails are permitted to be sent using the Subscription Services);
      
      
   10. Access, use or interfere with the proper working of the Subscriptions Services or any server, computer or database related to the Subscriptions Services; and
       
       
   11. Introduce any viruses, Trojan Horses, malware, time-bombs, time-outs, backdoors, worms, spyware, ransomware, spoofing, or any mechanism that allows remote or unauthorized access, copy prevention, deletion, disabling, modification, corruption, or anything similar into the Subscription Services or any networks that make the Subscription Services available.
       
       
5. Updates and Upgrades. Neostella may, but is under no obligation to, provide Updates or Upgrades to the Subscription Services and/or APIs. Customer must promptly, within a commercially reasonable period of time, install all Updates that are made available by Neostella, including those Updates required for integration with Third-Party Programs. Neostella has no liability to Customer if Customer does not install, or does not permit to be installed, any Updates that Neostella makes available. Customer is solely responsible for the purchase and implementation of any additional hardware, software, network connections or other products that are necessary to enable Updates and Upgrades. Updates to the Subscription Services and APIs may occur automatically. Upgrades may be made available at an additional cost pursuant to Neostella’s then-current rates.
   
   
6. Non-Exclusivity. This Agreement is non-exclusive, and nothing herein prohibits Neostella from providing the same or similar services to any other party during or after the Term.
   
   
7. Customer Responsibilities. Customer is solely responsible for (collectively. “Customer Responsibilities”):
   
   
   1. Securing all access and permissions, at Customer’s cost, to Third-Party Programs and APIs (for example, legal case management applications);
      
      
   2. Securing all access and permissions, at Customer’s cost, to Third-Party Programs and APIs (for example, legal case management applications);
      
      
   3. Securing all legally required or industry standard consents from, or providing all legally required or industry standard notices to all: (i) Authorized Users and (ii) third parties whom Customer inputs Personal Information about into the Subscription Services (including APIs), for Neostella’s use of Customer Data, including Personal Information, as described in this Agreement and in the Privacy Policy;
      
      
   4. Refraining from inputting the Personal Information of third parties into the Subscription Services (including APIs) who have requested that their Personal Information be removed from the Subscription Services, and immediately notify Neostella of the same;
      
      
   5. Refrain from emailing any third parties who have opted-out or unsubscribed from receiving emails from Neostella;
      
      
   6. Maintaining industry standard anti-virus software on any devices used to access the Subscription Services or APIs;
      
      
      
   7. Its use of the Subscription Services (including APIs) in compliance with applicable laws, including but not limited to wage and hour laws, the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (“CAN-SPAM”), the Telephone Consumer Protection Act (“TCPA”);
      
   8. Its configuration of the Subscription Services and APIs;
      
      
   9. Any email or messages it sends using the Subscription Services;
      
      
   10. Ensuring the Authorized Users are made aware that they are or may be interacting with the Subscription Services even when using Third-Party Providers’ services;
       
       
   11. Its selection of the Subscription Services to achieve its intended results; and
       
       
   12. Maintaining access capabilities to enable Neostella to perform its obligations under this Agreement.
       
       
8. Intellectual Property Rights.
   
   
   1. Ownership of the Subscription Services. Neostella and its licensors are the sole and exclusive owners of all right, title and interest in and to the Subscription Services and any related APIs, including their design, code, features, functionality, and all Intellectual Property Rights therein. Except as expressly set forth in the “Use Rights” section of this Agreement, nothing in this Agreement shall be interpreted as transferring to Customer any rights in or to the Subscription Services or APIs.
      
      
   2. Other IP Rights. As between the parties, Neostella is the sole and exclusive owner of all right, title and interest in and to any Intellectual Property Rights (i) owned by Neostella or its Affiliates as of the Effective Date, or (ii) created by or on behalf of Neostella or its Affiliates (whether alone or jointly with others) after the Effective Date in the performance of this Agreement, and (iii) all modifications, enhancements, derivatives or improvements in (i) and (ii) regardless of when created or by whom.
      
      
   3. Feedback. Customer agrees that any feedback, suggestions, recommendations, and other comments pertaining to the Subscription Services or APIs provided by Customer or any Authorized Users (collectively, “Feedback”) is the sole property of Neostella, is not confidential to Customer, and may be used by Neostella without further attribution or compensation. Neostella may use the Feedback and any know-how, experience or skills that it gains in connection with its performance hereunder, for any purpose.
      
      
9. Implementation. Neostella will make commercially reasonable efforts to provide onboarding support to Customer and will promptly provision an account for Customer after execution of an Order. If Customer has purchased an implementation package from Neostella or other certified partners, then Neostella will provide implementation services as further described in such Order. If Customer has not purchased an implementation package from Neostella, Customer is solely responsible for implementation of the Subscription Services and APIs.
   
   
10. Acceptance. The Subscription Services and all APIs are deemed accepted by Customer on the earlier of: (a) first use by Customer in a live environment; or (b) five (5) days after Neostella provides access to the Subscription Services to Customer.
    
    
11. Fees and Payments.
    
    
    1. Fees. Customer shall pay the fees set forth in the Order (“Fees“). Fees will be invoiced and paid in U.S. dollars and are non-refundable.
       
       
    2. Payment Terms. Unless otherwise stated in an Order, Fees will be invoiced annually in advance, and are due within thirty (30) days upon receipt of invoice.
       
       
    3. Taxes. The 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. Customer will be invoiced for all applicable Taxes unless Customer timely provides a valid tax exemption certificate.
       
       
    4. Late Payments. For any Fees not paid when due, Customer may be charged 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 in collecting amounts owed. Without limiting any of its other rights in law or equity, Neostella may suspend its obligations under the Agreement and Customer’s access to the Subscription Services, in the event any Fees are past due (a “Payment Suspension”). Neostella may apply unapplied funds due to Customer to outstanding Fees owed under this Agreement.
       
       
    5. Expenses. Expenses (if any) will be charged to Customer as stated in the Order or other written agreement between the parties.
       
       
12. Audit Rights. Neostella may remotely audit Customer’s compliance with this Agreement at Neostella’s own expense during the Term and no more than once during the 12-month period after the end of the Term. Customer will promptly provide Neostella the required access needed to perform the remote audit upon request.
    
    
13. Support. During the Term, Neostella will provide the following support services (“Support“) to Customer:
    
    
    1. All Tiers of Support. Neostella will provide Customer a designated US domestic telephone number for service calls, online portal for submitting support tickets, online chat and support email address.
       
       
    2. Tier 1 Support. Neostella will provide, via its support center and support communication methods, basic support and maintenance advice, including basic Subscription Services configuration and usage questions, and standard execution error concerns (“Tier 1 Support”).
       
       
       1. Tier 1 Support will be available to Customer via the Neostella support center 7 AM to 7 PM CT Monday through Friday excluding the published Neostella holiday schedule.
          
          
       2. Neostella shall respond to all inquiries received by Customer during such times within eight (8) hours.
          
          
       3. Neostella’s target time to resolution of any open item shall be three (3) business days.
          
          
       4. Neostella shall notify Customer of an ETA within three (3) business days if resolution is not achievable within the 3 day target.
          
          
    3. Tier 2 Support. Neostella will provide, via its support center and support communication methods, more advanced support and maintenance advice, including guiding Customer’s service staff through the process of using and advanced configuration of the Subscription Services, troubleshooting, or Subscription Services downtime which impacts multiple of its customers or services (“Tier 2 Support”).
       
       
       1. Tier 2 Support will be available to Customer via the Neostella support center 7 AM to 7 PM CT Monday through Friday excluding the published Neostella holiday schedule.
          
          
       2. Neostella shall use commercially reasonable efforts to respond to all Customer inquiries received during such times within four (4) hours, but in any event shall respond to all Customer inquiries within six (6) hours.
          
          
       3. Neostella’s target time to resolution of any open item shall be two (2) business days.
          
          
       4. Neostella shall notify Customer of an ETA within two (2) business days, if resolution is not achievable within the 2 day target.
          
          
    4. Tier 3 Support. Neostella will provide, via its support center and support communication methods, support designated for Subscription Services downtime which impacts the super majority of its customers and is across one or multiple of its services (“Tier 3 Support”).
       
       
       1. Tier 3 Support will be available to Customer via the Neostella support center twenty-four (24) hours per day, every day.
          
          
       2. Neostella shall respond to all Customer inquiries within four (4) hours.
          
          
       3. Neostella’s target time to resolution of any open item shall be twenty-four (24) hours.
          
          
    5. Neostella shall provide updates to Customer every (6) hours until an open item is resolved.
       
       
14. Service Level Agreement (“SLA”). During the Term, Neostella provides the SLA found at http://www.neostella.com/legal-docs/SLA .
    
    
15. Representations and Warranties.
    
    
    1. Limited Warranty. Neostella warrants that the Subscription Services will materially conform to the Documentation during the Term (“Limited Warranty”).
       
       
    2. Remedies. Upon prompt written notice from Customer that the Subscription Services do not comply with the Limited Warranty, Neostella, at its sole option, shall either fix the Subscription Services so that they comply with the Limited Warranty, or Neostella may terminate the Order (if the Order is between Neostella and Customer) and will provide the following refund to Customer (or to Neostella’s licensee if the Order if between such licensee and Customer) for prepaid Fees, pro-rated for the amount of time that is prepaid and unused: (i) a one month refund if Customer is under a monthly subscription plan; or (ii) a one year refund if Customer is under an annual subscription plan. THIS SUBSECTION DESCRIBES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND NEOSTELLA’S SOLE AND EXCLUSIVE LIABILITIES FOR ANY WARRANTY CLAIMS ARISING UNDER THIS AGREEMENT.
       
       
    3. Exceptions. The Limited Warranty is void in the event that any warranty non-conformity is caused by: (i) use of the Subscription Services or APIs contrary to the Documentation or in violation of this Agreement; (ii) Customer’s or an Authorized User’s misuse or abuse of the Subscription Services or APIs; (iii) events beyond the reasonable control of Neostella.
       
       
    4. Customer Representations and Warranties. Customer represents and warrants to Neostella that it complies with, and shall continue to comply with, the Customer Responsibilities.
       
       
    5. 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.
       
       
    6. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEOSTELLA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS AND COVENANTS, EXPRESS OR IMPLIED, ARISING RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES ARISING FROM STATUTE, INCLUDING COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE IN TRADE.
       
       NEOSTELLA DOES NOT REPRESENT OR WARRANT AGAINST LOSS OF DATA, OR THAT THE SUBSCRIPTION SERVICES, APIs OR SUPPORT WILL MEET CUSTOMER’S REQUIREMENTS, BE FREE FROM VIRUSES, OR OPERATE ERROR FREE.
       
       NEOSTELLA DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICES OR APIs WILL, OR WILL CONTINUE TO, OPERATE IN CONNECTION WITH ANY SPECIFIC THIRD-PARTY PROVIDER’S PRODUCTS OR SERVICES, EXCEPT FOR THAT CERTAIN SOFTWARE-AS-A-SERVICE PLATFORM PROVIDED BY FILEVINE, INC.
       
       NEOSTELLA FURTHER DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PROVIDER’S ACCESS TO OR USE OF CUSTOMER DATA, INCLUDING PERSONAL INFORMATION. CUSTOMER IS DIRECTED TO VIEW ANY AGREEMENT BETWEEN IT AND THE THIRD-PARTY PROVIDER TO LEARN HOW THAT THIRD-PARTY PROVIDER USES CUSTOMER DATA.
       
       NEOSTELLA DOES NOT REPRESENT OR WARRANT, AND DISCLAIMS ALL LIABILITY RELATING TO, THE ACCURACY OF CURRENCY CONVERSION THROUGH THE SUBSCRIPTION SERVICES.
       
       
16. Term; Termination; Modification of Subscription Services.
    
    
    1. Term. Unless otherwise set forth in an Order, the term of the Agreement begins on the Effective Date and continues for the initial term set forth as set forth in the Order (“Initial Term“). Thereafter, the Agreement will automatically renew for successive one (1) year terms (or as set forth in the Order or based on the Initial Term) (each a “Renewal Term”) unless written notice of termination is provided as set forth in the Order to at least thirty (30) days before the end of the Initial Term or then-current Renewal Term. The Initial Term and any Renewal Terms are collectively the “Term.”
       
       
    2. Termination for Cause. Orders between Customer and Neostella are not cancelable by Customer. A party may terminate this Agreement upon written notice if either (i) 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; or (ii) the other party files a petition for bankruptcy or is adjudicated bankrupt, a petition of bankruptcy is filed against such other party and not dismissed within ninety (90) days, or the other party admits in writing or in a legal proceeding that it is insolvent and/or unable to pay its debts as they come due.
       
       
    3. Termination for Convenience. Neostella may terminate this Agreement and any Order hereunder (if the Order is between Customer and Neostella), without cause or penalty upon 120 days prior written notice to Customer, except in circumstances where providing the Subscription Services becomes financially impractical to do so in which case Neostella may provide only thirty (30) days prior written notice (without cause or penalty).
       
       
    4. Suspension. In addition to Neostella’s right to a Payment Suspension as set forth above, Neostella may (temporarily or permanently) suspend Customer’s access to the Subscription Services or any Authorized User’s access to the Subscription Services, immediately without notice, if Neostella determines that: (i) it is necessary to prevent a violation of the Agreement or misuse of the Subscription Services, or if Neostella reasonably believes there has been a violation of the Subscription Services; (ii) there is a security or safety risk to the Subscription Services, Neostella, or any users of the Subscription Services; or (iii) it is necessary to comply with applicable laws.
       
       
    5. Modification to the Subscription Services. Neostella may modify the Subscription Services at any time, such as removing, enhancing or updating the features, functionality and options available within the Subscription Services. Neostella is not required to give prior notice of any modifications it makes to the Subscription Services unless such modifications materially reduce the core functionality of the Subscription Services, in which case Neostella shall provide at least ninety (90) days prior notice of such. Notice may be provided to the contact information Neostella has on file for Customer, or within the Subscription Services (e.g., a notice may be sent to Customer’s account or provided within the platform). If Neostella provides notice of a material reduction in functionality, and if the applicable Order is between Customer and Neostella, Customer has a one-time option to terminate the applicable Order, so long as Customer provides notice of termination within the 90-day time period in which such notice was given. If Customer terminates pursuant to the previous sentence and so long as Customer has an annual subscription, Neostella will refund to Customer any prepaid, used fees pro-rated for the remainder of Customer’s Order term.
       
       
    6. Effects of Termination. At termination of this Agreement, Customer shall (i) immediately discontinue use of all Subscription Services (and Neostella may immediately terminate Customer’s access to the Subscription Services); (ii) delete (or return at Neostella’s request) all Documentation; (iv) pay all Fees owed to Neostella; and (v) certify in a signed writing to Neostella that it has complied with the terms of this Section.
       
       
    7. 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.
       
       
17. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEOSTELLA AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AUTHORIZED USERS, LICENSEES, OR 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, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY, NEGLIGENCE, OR OTHERWISE, AND EVEN IF 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.
    
    
18. Indemnification.
    
    
    1. Indemnification by Customer. Customer shall, at its expense, defend Neostella and its Representatives from and against any claims, suits, allegations, settlements and actions (“Claims“), as well as indemnify and hold harmless Neostella and its Representatives, from and against any losses, liabilities, damages, penalties, expenses, courts costs and attorneys’ fees (“Damages“) arising from or relating to: (a) third-party claims of bodily injury or death to a person, or damage to property, caused by the acts or omissions of Customer; (b) Customer’s breach this Agreement; (c) Customer’s recklessness, fraud, negligence or willful misconduct; (d) Customer’s violation of applicable laws, including any first or third party claims of wage and hour law violations; (e) Customer’s infringement or misappropriation of Neostella’s Intellectual Property Rights; (f) Customer’s configuration of the Subscription Services; (g) any claims from Third-Party Providers arising due to Customer’s use of a Third-Party Provider’s services; and (h) third-party claims from any of Customer’s contacts in the Subscription Services.
       
       
    2. Indemnification by Neostella. Neostella shall, at its expense, defend Customer from and against any Claims, as well as indemnify and hold harmless Customer from and against any Damages arising from an allegation by a third party that the Subscription Services infringe or misappropriate a valid U.S. copyright, patent or trade secret of a third party (an “IP Claim”).
       
       In the event of an IP Claim, Neostella shall, at its option and expense, either: (i) modify, fix, or replace the infringing (or allegedly infringing) Subscription Services so that it is no longer infringing but remains materially similar to the Subscription Services, (ii) secure for Customer the right to continue using the infringing (or allegedly infringing) Subscription Services; or (iii) terminate this Agreement and Orders hereunder, and provide Customer a refund of any prepaid, unused Fees. THE FOREGOING SENTENCE SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND NEOSTELLA’S SOLE AND EXCLUSIVE LIABILITIES FOR CLAIMS RELATING TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS ARISING HEREUNDER.
       
       
       
    3. Procedure. The indemnitee will provide prompt written notice of a claim for which it seeks defense or indemnification, to the indemnifying party, and the requisite information, reasonable assistance and authority for the indemnifying party to control the defense. Failure to give prompt notice will not relieve the indemnifying party of its obligations to defend, indemnify and hold harmless the indemnitee(s), except and only to the extent that the indemnifying party is actually prejudiced by such delay. The indemnifying party shall not settle any claim that finds fault with, or requires specific performance of, the indemnitee(s), without the applicable indemnitee’s prior written consent which shall not be unreasonably withheld or delayed. The indemnitee may participate in the defense with counsel of its own choosing at its sole cost.
       
       
19. Confidentiality.
    
    1. Definition. “Confidential Information” is the confidential or proprietary information of a party or its Affiliates disclosed by or on behalf one party to the other party during the Term, which is marked as confidential or proprietary or should reasonably be known by the receiving party to be confidential or proprietary by the nature of the information or the context of the disclosure. Confidential Information includes each party’s business, financial, technical and product information. Neostella’s Confidential Information specifically includes this Agreement and related pricing, the Subscription Services, APIs and all software code therein, the Documentation, and its Intellectual Property Rights. Customer Data is Customer’s Confidential Information, except that Personal Information therein will be treated in accordance with the “Data Privacy and Security” section of this Agreement and the Privacy Policy.
       
       
    2. Exclusions. “Confidential Information” excludes information which: (i) is or becomes a part of the public domain through no act or omission of the receiving party, (ii) was in the receiving party’s lawful possession prior to the disclosure by the disclosing party and had not been obtained by the receiving party from the disclosing party, (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure, or (iv) is independently developed by the receiving party through no use of the disclosing party’s Confidential Information as evidenced by the receiving party’s documentation.
       
       
    3. Treatment. The only purpose for which the disclosing party’s Confidential Information may be used by the receiving party is for the receiving party to perform its obligations or exercise its rights under the Agreement. Each party shall hold the other party’s Confidential Information in strict confidence, only disclosing it to those Affiliates and employees with a need to know to perform such party’s obligations or exercise such party’s rights under the Agreement and who are subject to an obligation of confidentiality. Each party shall not disclose the other party’s Confidential Information to any third parties without the disclosing party’s prior written consent; if such consent is granted, disclosure shall not occur until such third party has signed a confidentiality agreement with terms at least as protective as set forth herein. 
       
       Notwithstanding the foregoing, Neostella may disclose Customer’s Confidential Information, without Customer’s consent, to (i) its attorneys and accountants in their capacity as advisors, (ii) its subcontractors or agents in their performance under this Agreement; and (iii) to Third-Party Providers.
       
       
    4. Compelled Disclosure. If compelled by applicable law or court order to disclose the other party’s Confidential Information, then, to the extent legally permitted, the receiving party shall: (a) provide the disclosing party prior written notice with sufficient time to challenge the request or seek a protective order, and (b) only disclose the minimum amount of the disclosing party’s Confidential Information necessary to comply with the applicable law or court order.
       
       
    5. Return / Destroy. At termination, each party shall promptly return or destroy the other party’s Confidential Information (whichever is requested). Notwithstanding the foregoing, the receiving party may retain (A) archival copies of the other party’s Confidential Information kept in accordance with its normal document retention and computer backup policies, and (b) one copy of the other party’s Confidential Information with its legal counsel for record purposes only, provided the receiving party will continue to protect the confidential nature of such Confidential Information so retained. Upon request, the other party shall promptly provide written notice of compliance with this clause. In the event of conflict between this Section and Section 16.f (“Effects of Termination”), Section 16.f shall control.
       
       
    6. Survival. The terms of this Section shall survive during the Term and for 3 years after the termination of this Agreement, except that Neostella’s trade secrets shall be treated by Customer as confidential so long as they continue to be a trade secret.
       
       
20. Data Privacy and Security.
    
    1. Ownership of Customer Data. Customer is the sole and exclusive owner of its Customer Data.
       
       
    2. Personal Data in the Subscription Services. Customer may only populate the Subscription Services with Personal Information as expressly permitted by the Documentation, and then only in the fields of the Subscription Services expressly reserved for such Personal Information. Customer is prohibited from entering Personal Information into fields of a Subscription Services that are not expressly permitted by the Documentation or prompted by the fields in the Subscription Services. 
       
       
    3. Protection of Personal Information. Neostella shall maintain physical, technical and organizational safeguards for any Personal Information in Neostella’s possession or control, materially consistent with industry standards. Neostella will host the Subscription Services using Amazon Web Services (“AWS“) and Neostella will provide notice to Customer of any change in such hosting provider. In addition, Neostella shall comply with data privacy and security laws applicable to its performance under this Agreement. Neostella will treat Personal Information in accordance with its Privacy Policy found at https://www.neostella.com/privacy-policy/.
       
       
    4. De-Identified Data and Analytics Data.
       
       
       1. De-Identified Data. Neostella may de-identify and/or aggregate Customer Data so that it does not contain Personal Information (“De-Identified Data“).
          
          
       2. Analytics Data. Neostella and its licensors may collect, store and process analytics data about the Subscription Services and Customer’s use of the Subscription Services, that does not contain Personal Information, such as machine data, technical data, usage data, systems data, data gathered via cookies and other online tracking mechanisms, and other similar types of data (“Analytics Data“).
          
          
       3. Ownership and IP Rights. Neostella is the sole and exclusive owner of all right, title and interest in and to Aggregated Data and De-Identified Data, which Neostella may use and share for any business purpose in compliance with applicable laws. Without limiting the foregoing, De Identified Data and Analytics Data may be aggregated with other data by Neostella and used for benchmarking and product improvement purposes.
          
          
    5. Incidents. In the event Neostella becomes aware of any confirmed unauthorized or unlawful access or acquisition of Personal Information in Neostella’s possession or control that results in a compromise to the confidentiality or security of Personal Information (“Incident”), Neostella will notify Customer without undue delay.
       
       
    6. CCPA. This Subsection only applies if Customer is a “Business” as such term is defined under the California Consumer Privacy Act of 2018 and its implementing regulations (“CCPA“). With regard to this Subsection only, the terms “Service Provider”, “Personal Information,” “Sell/Sale/Sold,” “Commercial Purpose,” “Consumer,” and “Business” shall have the definitions set forth in the CCPA.
       
       
       1. The parties agree that Neostella is acting as Customer’s Service Provider pursuant to the CCPA. Neostella shall not (and will require that its subcontractors do not): (1) Sell Personal Information; or (2) retain, use or disclose Personal Information for any purpose other than for: (A) the specific purpose of performing the services described in this Agreement, including retaining, using, or disclosing Personal Information for any Commercial Purpose other than providing such Services; (B) retaining and employing a subcontractor to aid in Neostella’s performance of services under this Agreement; (C) for internal use to build or improve the quality of the Subscription Services and other Neostella services; (D) to detect security incidents or protect against fraudulent or illegal activity; (E) exercising its rights under Cal. Civ. Code § 1798.145(a)(1)-(a)(4); and (F) any other uses permitted of Service Providers by the CCPA.
          
          
       2. Given the nature of Neostella’s access and processing of Personal Information, and the services performed under the Agreement, Neostella will promptly cooperate with Customer as required pursuant to the CCPA to respond to a Consumers’ requests to exercise their rights under the CCPA (e.g. a request to delete Personal Information) and Neostella will require the same of its subcontractors. If any requests to exercise rights from Consumers are received directly by Neostella, Neostella will direct such Consumers to Customer. Neostella will only respond to Consumer requests to exercise their rights under applicable laws directly, if required by applicable law.
          
          
    7. Third-Party Providers. A Third-Party Provider’s use of any Personal Information or other data made available to it when Customer uses a Third-Party Provider’s services is not governed by this Agreement but is addressed in the agreement between that Third-Party Provider and Customer, or in such Third-Party Provider’s privacy policy and online terms. CUSTOMER EXPRESSLY CONSENTS TO NEOSTELLA’S SHARING OF CUSTOMER DATA WITH THIRD-PARTY PROVIDERS AS DESCRIBED IN THE PRIVACY POLICY.
       
       
    8. Customer’s Provision of Customer Data. Customer is solely responsible for all Customer Data input into the Subscription Services, including its legality and accuracy and the resulting output.
       
       
    9. Disaster Recovery and Backup. It is Customer’s sole responsibility to back-up the Customer Data. Neostella is not responsible for restoring any lost or damaged Customer Data.
       
       
    10. Email Notifications. Customer consents to receiving email notifications from the Subscription Services. Email notifications can be managed within Customer’s account.
        
        

21. Additional Terms. Neostella’s Privacy Policy at https://www.neostella.com/privacy-policy/ and any Acceptable Use Policy and Terms of Use (if any) set forth on Neostella’s website and within the Subscription Services, are incorporated herein by this reference. Customer agrees to require all Authorized Users to comply with Neostella’s Privacy Policy, Acceptable Use Policy and Terms of Use, if applicable.

    Neostella may modify its Privacy Policy, Acceptable Use Policy and Terms of Use at any time. Neostella will provide notice of any material changes to its Privacy Policy, Acceptable Use Policy or Terms of Use by either (a) sending Customer notice directly; or (b) posting a notice on its website or in the Subscription Services. It is Customer’s responsibility to periodically check Neostella’s website and the Subscription Services for any such notice.

22. 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. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) to this Agreement and the Order Forms.
       
       
    2. Compliance with Laws. 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 and regulations related to the Subscription Services for the country where the Subscription Services are used by Customer as well as with all applicable United States export laws (collectively, the “Export Laws“). Customer shall not, and shall not permit any third party to: (i) export or transmit the Subscription Services, directly or indirectly, in violation of Export Laws, including to a country subject to a U.S. embargo; (ii) access or use Subscription Services in violation of any Export Laws; (iii) provide access to the Subscription Services across international boundaries except in compliance with any Export Laws, including those of the originating country. Furthermore, Customer is solely responsible for its compliance with, and Customer shall comply with, all applicable wage and hour laws.
       
       
    3. Independent Contractors. Both parties shall be, and shall act as, independent contractors. Neither party shall have authority to create any obligation or make any commitments on the other party’s behalf.
       
       
    4. 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.
       
       
    5. Use of Subcontractors. Neostella is permitted to use third parties to perform its obligations or exercise its rights hereunder, such as Affiliates, agents, contractors or subcontractors. If Neostella uses any such third parties, Neostella will nonetheless remain obligated to perform its obligations hereunder.
       
       
    6. Use of Names. Neither party may use the names, trademarks, trade names, service marks, insignia, or logos (“Marks“) of the other party without such other party’s prior written consent. Notwithstanding the foregoing, Neostella may publicly refer to Customer as a customer of Neostella’s online, verbally and in its marketing materials.
       
       
    7. Assignment. Neither party may assign this Agreement to a third party, without the advanced written consent of the other party. 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, 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.
       
       
    8. Force Majeure. No delay, failure, or default by Neostella, will constitute a breach of this Agreement to the extent it results of 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, earthquake or the like (“Force Majeure Event“).
       
       
    9. Waiver. Neither party shall be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit signed, written waiver. No waiver of a breach of this Agreement by either party will constitute a waiver of any other breach of this Agreement.
       
       
    10. Severability. In the event a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and if the foregoing is not possible, such provision shall be severed from the Agreement. All remaining provisions shall continue in full force and effect.
        
        
    11. Entire Agreement. This Agreement (including all documents reference herein) and the Orders 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. Neither party has relied upon any such prior or contemporaneous communications. Any amendment or modification to this Agreement must be in writing and signed by the authorized representatives of both parties to be effective.

Last Updated: September 1, 2023