Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) dated as of the date of execution of the Order Form (“Effective Date”) is by and between Neostella LLC, a Wisconsin limited liability company located at 325 E Chicago St, 5th Floor, Milwaukee, WI 53202 (“Neostella”) and the business customer listed in the Order Form (“Customer”).

RECITALS

1. Neostella is the owner or licensee of the Work-Relay software products and all intellectual property rights therein.
   
   
2. Customer wishes to license the Work-Relay software products and Neostella is willing to grant such license, according to the terms and conditions set forth below.

NOW THEREFORE, in consideration of the mutual promises contained herein, the parties mutually agree as follows:

1. DEFINITIONS.

1.1.  “Affiliates” means, with respect to either Party, any entity controlling, controlled by or under common control with a Party, where “control” is defined as (i) the ownership of at least 50% of the equity or beneficial interests of such entity; or (ii) the right to vote for or appoint a majority of the board of directors or other governing body of such entity; or (iii) the power to exercise a controlling influence over the management or policies of the entity

1.2. “Authorized User(s)” means (i) Customer’s, and Customer’s Affiliate’s, employees, representatives, consultants, contractors, and agents; and (ii) Customer’s customers. In each instance, an Authorized User must have authorized access to Customer’s SFDC platform (as defined and further detailed in Section 2.3 below) platform and must be supplied a unique user identification and password to the Software by a Licensed Administrator.

1.3. “Content” means the audio and visual information, documents, software, products and services contained in or made available to Customer in the course of using the Software.

1.4. “Customer Data” means any data, information or material provided or submitted by Customer to the Software in the course of using the Software.

1.5. “Documentation” means the user manuals and other written, printed or electronically produced materials or data and instructions regarding the Software, that Customer may receive from Neostella from time to time.

1.6. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

1.7. “License Administrator(s)” means those Authorized Users designated by Customer or its Affiliates that are authorized to purchase additional user licenses, create Authorized User accounts, and otherwise administer Customer’s use of the Software.

1.8. “Order Form” means an ordering document executed by both parties pursuant to which Customer purchases Software.

1.9. “Neostella Technology” means all Neostella proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Neostella in providing the Software.

1.10. “Software” means the provision of the specific Work-Relay software applications to which Customer is being granted a license under this Agreement including any Updates thereto, as further identified in the Order Form.

1.11. “Subscription Term(s)” means the period(s) during which a specified number of Authorized Users are permitted to access and use the Software as mutually agreed upon the applicable Order Form.

1.12. “Support Services” means the maintenance and support services set forth in Exhibit A.

1.13. “Updates” means updates, maintenance releases, bug fixes and/or software patches for the version of the Software as may be released by Neostella from time to time generally to other similarly situated licensees of the Software, excluding new versions or major releases of the Software for which Neostella charges separately.

2. License Rights and Restrictions

2.1. Software License. Subject to the terms of this Agreement, Neostella hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable, license for Customer and its Authorized Users to install, access, display, and otherwise use the Software solely for Customer’s own internal business purposes for the duration of the Subscription Term specified in the Order. Customer may grant sublicenses to the Software to Customer’s Affiliates. Upon request by Neostella, Customer shall identify all Customer Affiliates to which Customer has granted a sublicense as well as the number of respective Authorized Users of such Affiliates. Under no circumstances may Customer grant a sublicense or any other use or access rights to entities which are competitors of Neostella. All rights not expressly granted to Customer are reserved by Neostella and its licensors.

2.2. License Restrictions. Except as otherwise authorized by this Agreement, Customer shall not, and ensure Users do not: (i) copy, modify, translate, or prepare derivative works based upon the Software; (ii) rent, lease, loan, sell, transfer, distribute or sublicense the Software, or any copy or portion thereof, to any other person or entity; (iii) reverse-compile or decompile, disassemble or otherwise reverse engineer the Software, except to the extent expressly required to be permitted by applicable law; (iv) alter, remove, or obscure any copyright, trademark, or other proprietary notices or confidentiality legend on or in the Software; (v) disclose or publish the performance benchmark results for Software to any third party without Neostella’s prior written consent; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Any attempt to transfer possession of any copy, modification, or merged portion of the Software to another party shall automatically terminate the license granted under Section 2.1.

2.3. Salesforce. The Software is built on a platform that is owned and operated by Salesforce (“SFDC”), Force.com. Customer must contract directly with Salesforce for the appropriate license and use of the SFDC platform in advance of the Subscription Term start date. An Authorized User will not be able to access the Software without appropriate access credentials to the SFDC platform. Customer must ensure, and is solely responsible for ensuring, that each Authorized User has the appropriate license rights to access the SFDC platform prior to providing such user access credentials and password to the Software. It is Customer’s sole responsibility to accept any additional or different licenses or other terms as may be required by SFDC.

2.4. Software Delivery. The Software will be made available to Customer as set forth in the Order Form. Software is accepted on delivery.

2.5. Authorized Users. Customer is solely responsible for Authorized User’s access to and use of the Software. Customer must purchase the sufficient number of subscriptions to the Software for the Authorized Users accessing and using the Software. Authorized User’s access credentials cannot be shared or used by more than one individual Authorized User but may be reassigned from time to time to new Authorized Users who are replacing former Authorized Users who have terminated employment or otherwise changed job status or function and no longer use the Software. Customer is responsible for its Authorized Users compliance with this Agreement, and any breach by an Authorized User will be deemed a breach by Customer. Customer must prevent unauthorized access, or use of, the Software and must notify Neostella promptly of any unauthorized access, use, or distribution of the Software or Content.

3. Orders. Each Order Form will set forth the Software Customer is subscribing to, the Subscription Term, the number of Authorized Users that may access the Software, the Fees, and any other terms to which the parties my agree. Each Order will incorporate the terms of this Agreement by reference and will be deemed a part of this Agreement.

4. Support Services

4.1. Support Services. Upon request and payment of all Support Services fees, Neostella will provide Customer the Support Services. A current version of the offered Support Services is attached as Exhibit A and incorporated in this Agreement. The Support Services are subject to change at Neostella’s sole discretion; however, Neostella will not materially reduce the level of Support Services provided during the Subscription Term for which Support Services fees have been paid.

4.2. Professional Services. In the event Customer desires to retain Neostella for general consulting and assistance, installation, integration, training, documentation and otherwise (“Professional Services”), the parties will negotiate a separate Professional Services Agreement.

5. Compliance. Customer must abide by all international, federal, state, and local, laws and regulations in connection with its use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data.

6. Proprietary rights

6.1. Neostella Intellectual Property Rights. Neostella, and its licensors, where applicable, own all right, title and interest, including all related Intellectual Property Rights, in and to the Content and the Software. Except for the limited rights expressly granted to Customer hereunder, Neostella reserves all rights, title, and interest in and to the Content and the Software including all related Intellectual Property Rights. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software or the Intellectual Property Rights owned or otherwise licensed by Neostella.

6.2. Customer Data. Customer understands and acknowledges that all Customer Data will remain with Customer and is hosted by SFDC and subject to the license agreement between SFDC and Customer. Neostella will not be responsible or liable for the any deletion, correction, destruction, damage, loss or failure to store Customer Data.

6.3. Feedback. Customer agrees that any feedback, suggestions, recommendations, and other comments pertaining to the Software 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.

6.4. Usage Data. Neostella will compile (i) statistical and other information related to the performance, operation and an Authorized User’s use of the Software, and (ii) data related to identifiable Authorized Users’ usage of features and functionality of the specific Software (collectively, “Usage Data”). Neostella will own and retain all right, title, and interest in and to the Usage Data and may use Usage Data during and after the Term for the purposes of implementing, operating, maintaining and improving the Software and fulfilling its obligations hereunder. In no event with Usage Data include Customer Data.

7. Fees and Pricing

7.1. Fees. Customer shall pay all fees or charges to Customer’s account in accordance with the fees, charges, and billing terms set forth in this Agreement and/or the applicable Order Form. Unless otherwise agreed upon herein, the annual subscription fees paid for the Software are non-cancelable and non-refundable. Neostella shall bill Customer in USD, unless otherwise identified in the Order Form.

7.2. Invoicing. Neostella may invoice Customer for all Software listed in the applicable Order Form for the initial Subscription Term and any renewal Subscription Term(s). Such invoicing by Neostella and payment by Customer shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated herein, invoiced charges are due within thirty (30) days from the receipt of invoice. It is Customer’s responsibility to provide Neostella with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Customer shall update this information within thirty (30) days of any change. Customer must notify Neostella in writing of any good faith payment dispute within ten (10) days of the date of such invoice 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 Software 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.

7.3. Pricing.

7.3.1. Neostella shall have the right to modify its fees and charges by giving at least sixty (60) days’ written notice before the end of a Subscription Term set forth in an Order Form. Customer shall have the right to terminate the Agreement by giving written notice to Neostella at least thirty (30) days prior to the end of the applicable Subscription Term.

7.3.2. Neostella reserves the right to modify its fees and charges to the extent that specific third-party providers which provide services relevant for the Software to Neostella increase fees and charges payable to them by Neostella. Specific third-party providers in the meaning of the preceding sentence shall be SFDC. Neostella shall promptly notify Customer of such increase. Upon receiving written notice from Neostella, Customer shall have thirty (30) days to accept the increased fees or terminate the Agreement. The increase shall be effective upon the expiration of the thirty (30) day acceptance period. In the event Customer does not accept the fee increase, Customer shall be permitted to terminate this Agreement for convenience, which termination shall be effective thirty (30) days after notice to Neostella of such determination. Fees during such period shall remain at the then current rate.

7.4. Taxes. Neostella fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, in particular applicable Value Added Tax in the then current amount and applicable taxes, such as sales, use, and excise, associated with its purchases hereunder (excluding taxes based on Neostella’s net income or property). Neostella will timely calculate, assess, and remit all sales taxes resulting from this Agreement. Taxes for each jurisdiction shall be separately stated on the invoice by tax category (e.g., taxable and non-taxable Software shall be separately stated).

7.5. Authorized User Licenses. Customer may add additional Authorized User licenses during the Subscription Term, subject to the following: (i) added licenses will be coterminous with the preexisting Subscription Term (either the initial or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; (iii) licenses added in the middle of a billing month will be charged pro rata for that billing month; and (iv) Customer must, at minimum, have the equivalent number of SFDC licenses. Customer shall not be permitted to reduce the number of Authorized Users during the Subscription Term. The Fee for any renewal of the Subscription Term shall be equal to the then-current number of total Authorized User licenses times the license fee effective for such renewal term.

8. Term and Termination

8.1. Term. This term of this Agreement (the “Term”) begins upon Effective Date, and unless otherwise terminated pursuant to this Section 8, will expire upon the expiration of all applicable Order Forms. Authorized User subscriptions purchased by Customer commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein.

8.2. Termination. Either party may terminate this Agreement or any Order Form (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately upon written notice if the other party becomes insolvent, or if proceedings are instituted against the other party for reorganization or other relief under any bankruptcy law, or if any substantial part of the other party’s assets come under the jurisdiction of a receiver or trustee in an insolvency proceeding authorized by law. In addition, Neostella may, in its sole discretion terminate Authorized User passwords, accounts, or use of the Software immediately for Customer breaches that are incapable of cure.

8.3. Effect of Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement, Customer must immediately cease all use of the Software and all access rights to the Software will immediately terminate. Notwithstanding the foregoing, each party will use commercially reasonable efforts to return to the other party or destroy, at the other party’s discretion, all documents and tangible materials (and any copies, physical or electronic) containing, reflecting, incorporating or based on the other party’s Confidential Information (defined below). Notwithstanding the foregoing, the Receiving Party (defined below) 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.

8.4. Suspension. In addition to any other rights granted to Neostella herein and under applicable law, Neostella reserves the right to suspend or terminate this Agreement and access to the Software if Customer’s account becomes delinquent (falls into arrears) in the amount of more than five (5) percent of the annual fees and charges.

8.5. Survival. The parties rights and obligations which by their nature would continue beyond the expiration or termination of this Agreement, will sill survive such expiration or termination, including but not limited to Sections 1, 6, 8.3, 9-13.

9. Indemnification.

9.1. Indemnification by Neostella. Neostella will indemnify and hold harmless Customer from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Loss”) incurred by Customer, and defend Customer from any claim, action, demand, lawsuit, proceeding, litigation, arbitration, or other legal action by a non-affiliated third party (collectively, “Claim”), that Customer’s or Authorized User’s use of the Software in accordance with this Agreement infringes or misappropriates a valid U.S copyright, patent, or trade secret (“IP Claim”). The foregoing obligation does not apply to the extent that the IP Claim arises from: (a) Customer’s use of the Software contrary to Documentation or in violation of this Agreement; (b) Customer’s modification of the Software not expressly permitted in writing by Neostella; or (c) the SFDC platform. If Neostella receives information about an IP Claim, Neostella may, in Neostella’s sole discretion and at no cost to Customer: (a) modify the Software so that they no longer infringe or misappropriate, (b) obtain a license for Customer’s continued use of the Software in accordance with this Agreement, or (c) terminate Customer’s this Agreement and refund Customer any prepaid fees of the remainder of the Subscription Term of the terminated subscriptions on a pro rata basis. 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.

9.2. Indemnification by Customer. Customer will indemnify and hold harmless Neostella from and against any Loss incurred by Neostella, and shall defend Neostella from and against any Claim, arising out of or relating to (i) Customer’s infringement or misappropriation of a third party’s Intellectual Property Rights; or (ii) Customer’s violation of any applicable law.

9.3. Procedure. The indemnified party must promptly give the indemnifying party notice of the Claim for which it seeks defense or indemnification, provided that failure to give prompt notice will not relieve the indemnifying party’s obligations except to the extent it was actually prejudiced by the delay. The indemnifying party must not settle any claim that finds fault with, or requires specific performance of, the indemnified party without the applicable indemnified party’s prior written consent which shall not be unreasonably withheld or delayed. The indemnified party may participate in the defense with counsel of its own choosing at its sole cost.

10. Confidentiality

10.1. Definition. “Confidential Information” is the confidential or proprietary information of a Party 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, but is not limited to, this Agreement and related pricing, the Software, and the Documentation. Customer’s Confidential Information includes Customer Data, if any. 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.

10.2. Limited Use and Disclosure. 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 treat the other party’s Confidential Information with at least the same degree of care that it treats its own similar Confidential Information but using no less than a reasonable degree of care. Each party may only disclose the other party’s Confidential information to those of its employees with a need to know to perform such party’s obligations or exercise such party’s rights under the Agreement, and to its attorneys and accountants in their capacity as professional advisors, so long as such employees, accountants and attorneys are subject to an obligation of confidentiality. Except as set forth in the previous sentence, each party shall not disclose the other party’s Confidential Information to any third parties without the disclosing party’s prior written consent. 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.

11. Warranties.

11.1. Neostella Warranties. Neostella represents and warrants that (a) it shall provide the Software in a manner consistent with general industry standards reasonably applicable to the provision thereof; (b) the functionality of the Software shall not be materially decreased during a Subscription Term; and (c) it owns or otherwise has sufficient rights in the Software to grant to Customer the rights to use the Software granted herein.

11.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEOSTELLA MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. NEOSTELLA DOES NOT WARRANT (I) THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; (II) THE SOFTWARE WILL MEED CUSTOMER’S REQUIREMENTS FOR USE; AND (III) NEOSTELLA SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

12. Limitation of Liability. EXCEPT WITH RESPECT TO CUSTOMER’S VIOLATION OF SECTION 2.1 OR 2.2, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY AND/OR ITS LICENSORS WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR NEOSTELLA’S INDEMNIFICATION OBLIGATIONS FOR AN IP CLAIM ARISING FROM SECTION 10.1, WHICH WILL BE CAPPED UNDER THIS AGREEMENT AT A CUMULATIVE TOTAL OF ONE MILLION DOLLARS ($1,000,000.00), NEOSTELLA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, EVEN IF ANY REMEDY HAS FAILED OF ITS ESSENTIAL PURPOSE.

13. Miscellaneous.

13.1. Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between them. Neither party will be authorized to contract for or bind the other party in any manner whatsoever.

13.2. No Publicity. Neither party will issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, or otherwise use the other party’s trademarks, service marks, trade names, logos, symbols, or brand names, in each case, without the prior written consent of the other party. Notwithstanding the foregoing, Customer agrees that Neostella may (a) include Customer’s name or brand features (including logo) in a list of Neostella’s customers, whether online or in promotional materials; and (b) verbally reference Customer as a customer of Neostella’s Software.

13.3. Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) will be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by a party from time to time in accordance with this Section). All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.

13.4. Entire Agreement; Order of Precedence. This Agreement, and any Order Form added to this Agreement by the parties in a signed writing, and any Exhibits and any other documents incorporated herein by reference, 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 and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms of this Agreement and the Order Form, the Order Form shall control.

13.5. Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent in the event of a merger, acquisition, reorganization, or sale of all or substantially all of its stocks or assets. Any attempted assignment in violation of the foregoing is null and void. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.6. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

13.7. Amendment and Modification. Neostella reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software in the event that SFDC modifies its terms and conditions for the SFDC platform and/or the SFDC services either generally in the market or towards Neostella and such modification requires Neostella to modify the Software and/or the respective terms and conditions vis-a-vis Customer. Neostella shall promptly notify Customer of upcoming changes. If such changes result in a loss of functionality or other degradation of the Software, Customer may terminate this Agreement and any applicable Order Form. Customer’s sole and exclusive remedy in such event is a pro-rata refund pre-paid Fees. In all other instances, no amendment to or modification of this Agreement is effective unless it is signed by an authorized representative of each party.

13.8. 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. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will 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.

13.9. Severability. No invalidity, illegality, or unenforceability of any provision herein in any jurisdiction, will affect any other term or provision of this Agreement or invalidate or render such provision unenforceable in any other jurisdiction. If any provision is determined to be invalid, illegal, or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible.

13.10. Governing Law: Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Software provided hereunder will be instituted exclusively in the state or federal courts in Milwaukee, Wisconsin, and each party irrevocably: (a) submits to the exclusive jurisdiction and venue of such courts; and (b) waives any objection to such courts based on venue or inconvenience. Service of process, summons, notice or other document by mail to such party’s address set forth herein (or as updated by the parties in accordance with Section 16.3) will be effective service of process for any suit, action, or other proceeding brought in any such court.

13.11. Non-Exclusivity. Subject to the confidentiality obligations set forth above, (a) nothing in this Agreement will prevent Neostella from providing the same or similar services to other customers; and (b) Neostella will be free to use its general knowledge, skills, and experience outside the scope of this Agreement.

13.12. Anti-Bribery. Both parties expressly agree that (a) this Agreement is the result of arms-length negotiations; (b) neither party has entered into this Agreement with a corrupt motive to obtain or retain business or to secure an unfair business advantage; and (c) each party will fully comply at all times with all applicable anti-corruption laws including, but not limited to, the Foreign Corrupt Practices Act of 1977 of the U.S., as amended.

13.13. Equitable Relief; Cumulative Remedies. Each party acknowledges that a breach of the provisions in this Agreement with respect to confidentiality, Intellectual Property Rights or non-solicitation of employees may cause the non-breaching party irreparable harm, for which an award of damages may not be adequate compensation. In the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable or injunctive relief without the need to post bond or other security or prove actual damages. Except as expressly set forth in this Agreement, the rights and remedies under this Agreement are cumulative and in addition to any other rights or remedies available at law or in equity or otherwise. The prevailing party in any action or proceeding arising hereunder is entitled to prompt reimbursement by the other party for its attorneys’ fees and court costs incurred with regard to such action or proceeding.

Exhibit A
Support Services

Neostella provides two levels of Support Services: Premium Support that provides telephone support 24×7, including weekends and holidays or Standard Support that provides telephone support 8×5 Monday through Friday CST local time. The level of support that is purchased is shown on the Order Form.

THE CUSTOMER’S RESPONSIBILITIES.

Neostella’s provision of support to the Customer is subject to the Customer’s compliance with the following:

• the Customer may be asked to provide Neostella with access to the Customer’s personnel and data if a problem the Customer is experiencing cannot be reasonably duplicated at Neostella’s support facilities.
• the Customer shall document and promptly report errors or malfunctions of the Software to Neostella.

CLASSIFICATION OF INCIDENTS & Support Service Level Agreement

Severity Levels. Issues will be categorized and handled according to an assigned severity level. The case severity level is selected by the Authorized User at time of case submission, and will be updated by Neostella as follows:

Target Initial Response Time. Neostella will respond to each case within the applicable response time described in the table below, depending on the severity level set on the case.

Target Initial Response Time by Case Severity for Premium Support

*Severity Level 1 and 2 target initial response times are 24×7, including weekends and holidays for Premium Support. In either case, Neostella will work continuously and diligently to correct the defect. 

**Severity Level 3 and 4 target initial response times include local business hours only and exclude weekends and holidays. 

Target Initial Response time by Case Security for Standard Support

*Target initial response times are Monday through Friday CST for Standard Support.

Reproducible errors that cannot promptly be resolved will be escalated to higher support tiers for further investigation and analysis.

Cooperation. Neostella must be able to reproduce errors in order to resolve them. Customer agrees to cooperate and work closely with Neostella to reproduce errors, including conducting diagnostic or troubleshooting activities as requested and appropriate. Also, subject to Customer’s approval on a case-by-case basis, Licensed Administrators may be asked to provide remote access to their Neostella application for troubleshooting purposes.