Terms of Service

This Master Agreement for Financial Forecasting as a Service (the “Agreement”) is between you (“Client”) and Stella Financial
Solutions, Inc. (“Stella”) and contains the terms and conditions that governs Client’s access to and use of the Service and Hosted
Services, as defined herein. This Agreement is effective (“Effective Date”) when you accept the terms and conditions of this
Agreement by clicking an “Accept” button or check box presented with these terms or, if earlier, upon Client’s commencement of
access to or use of the Service. By accepting these terms and conditions, the individual that accepted the terms and conditions on
behalf Client represents that they have the legal authority to bind Client.


WHEREAS, Stella has developed a hosted financial forecasting service and Client desires to access and use such financial forecasting
service, subject to this Agreement.


NOW THEREFORE, in consideration of the promises set out herein, the parties hereby agree as follows:
 

1. DEFINITIONS


For the purpose of this Agreement the following terms shall have the corresponding definitions:


“Acceptable Use Policy” or “AUP” means the acceptable use policy for the Service, set out in Exhibit 3, hereto.


“Affiliate” means an entity that Controls, is Controlled by or is under common Control with a party.


“Business Day” means Monday – Friday, excluding federal holidays.


“Business Hours” means 9:00am to 5:00pm New York City Time on a Business Day


“Client Data” means Client’s data and information submitted by Client to the Service.


“Client Representative” means individual appointed by the Client to represent the Client in making decisions related to the Service.


Client Representative will be made available to Stella at least five hours per week during Onboarding Services and at least one hour
per week during the Run Services. Client may change the Client Representative at any time, provided they notify Stella in writing.
“Control” means the ownership of more than fifty percent (50%) of an entity’s stock or other voting interest.


“Hosting Environment” means the environment utilized for the Hosting Services.


“Hosted Services” means the Service that is hosted as set out in this Agreement.


“Service Term” means the term of an Order during which Client may access and use the Service.
“Order” means the applicable order entered into by Client and Stella for the Service.


“Service(s)” means the then current commercially available release of the sales reporting and financial forecasting as a service
solution hosted by Stella as identified in an Order that will be made available to Client under this Agreement and an Order.
“Service Level Agreement” or “SLA” means the service level uptime for the Service set out in Exhibit 1.


“Support” means the technical support for the Service described in Section 7, below.


“Term” means the term of this Agreement set out in Section 14(A), below.


“Territory” means the United States or the Territory set out in an Order.


“User Materials” means the documentation provided by Stella that describes the Service.
 

“Users” means named individuals, consisting of Client’s employees, representatives, consultants, contractors or agents who have been
supplied user identifications and passwords and are authorized to use the Service.


2. SCOPE OF AGREEMENT; ORDERS

During the term of this Agreement, Client may obtain the right to access and use the Service by executing an Order. Each Order shall
incorporate this Agreement by reference, identify the Service Term and shall give rise to a separate and distinct contract under this
Agreement. A Service Term shall commence on the Effective Date of an Order and shall, subject to Section 14 of this Agreement and
the Order, remain in effect for the term identified in the Order. A Service Term may be renewed or extended as agreed to by the
parties thereto. Any event of default under an Order shall not be considered, in and of itself, a breach or default under any other
Order. All references to Client in this Agreement shall apply to each Client referenced in an Order.


3. GRANT OF LICENSE
Stella hereby grants to Client a non-exclusive, non-transferable license to use the Service in the Territory during the Service Term,
subject to this Agreement and an Order. The grant of rights to the Service is not a sale of the Service and Stella, and its third-party
providers, reserve all rights not expressly granted by this Agreement and an Order. Client has no rights in or to the Service except the
right to use the Service as provided in this Agreement and an Order.


4. HOSTED SERVICES


4.1. General

During the Service Term, Stella shall provide Client with the Hosted Services. Stella will host the current commercially available
release of the Service in the Hosted Services. Unless otherwise agreed to in an Order, Stella shall not provide any customization
to the Service, integrate the Service to Client’s environment or any other consulting services under this Agreement.

 

4.2. Availability


Stella shall use commercially reasonable efforts to make the Service available in accordance with the SLA. If during any month
Stella fails to satisfy the SLA, Client shall, as its sole and exclusive remedy, receive the service credit set out in the SLA.

 

4.3. Network Connections; User Credentials


Client shall procure and maintain its network connections and telecommunications links from its network or systems to the
Hosting Service and shall be responsible for any problems, delays, delivery failures and losses or damages arising out of or
relating to Client’s network connections or telecommunications links to the Hosting Service. In addition, Stella may require
Client to establish unique user credentials and password for each User. User credentials and passwords shall not be shared with
any other individual.

 

5. USE OF SERVICE
 

5.1. Entitlements


Unless otherwise indicated in an Order, the Service shall be used by up to the number of Users identified in an Order for Client’s
internal use, operations and management of Client’s internal business operations, specifically for Client’s financial forecasting
and analysis. Prior to permitting any contractor or third party User to use the Service, Client shall require such third party User to
agree in writing to confidentiality obligations at least as protective of confidential information as provided in Section 9.2 below,
and to only use the Service on behalf of Client in accordance with the Agreement and an Order. Client shall be responsible for
any breach of this Agreement by any Users, including any third party using the Service on behalf of Client.

 

5.2. Restrictions


Client shall not: (i) copy the Service; (ii) make derivative works of the Service, reverse engineer or decompile the Service or any
portion thereof; (iii) attempt to unlock or bypass any initialization system, encryption methods or copy protection devices in the
Service; (iv) modify, alter or change the Service, including any proprietary notices; (v) use components of the Service
independent of the Service they comprise; (vi) use the Service to store or transmit infringing, libelous, or otherwise unlawful or
tortious material, or in violation of third party rights; or (vii) use the Service to interfere with or disrupt the integrity or
performance of the Service or other users.


5.3. Compliance


Client shall use the Service in compliance with all applicable law, the AUP and the terms of services of any non-Stella
applications used with the Service that are identified to Client. Client shall use commercially reasonable efforts to prevent
unauthorized access to or use of the Service and shall promptly notify Stella of any unauthorized access or use that it becomes
 aware of. Client shall not export, re-export or provide access to the Service to: (i) persons located in any country to which the
United States has embargoed goods; (ii) any person on the United States Treasury Department’s list of Specially Designated
Nationals or United States Commerce Department’s Denied Persons List; or (iii) in violation of any United States export control
or regulation.


6. CLIENT DATA


6.1. Stella Responsibilities


Stella shall maintain appropriate administrative, physical and technical safeguards and restrictions reasonably designed to: (i)
insure the security, confidentiality, and integrity of Client Data in the Hosting Environment; and (ii) protect against any
anticipated threats or hazards to the security or integrity of Client Data in the Hosting Environment. Safeguards shall include,
without limitation, regular monitoring and reasonable measures to prevent access, use, modification or disclosure of Client Data
by Stella personnel, except (a) to provide the Hosting Services and prevent or address service or technical problems, (b) as
compelled by law in accordance with this Agreement, or (c) as permit in writing by Client. Safeguards shall be materially
consistent with the security requirements and safeguards generally utilized in the industry for protection of Client Data, subject to
Client’s obligations set out in this Agreement. Stella shall promptly notify Client in writing after it becomes aware of: (i) any data
breach of Client Data; or (ii) any unauthorized access to or acquisition of such Client Data that materially compromises the
security, confidentiality, or integrity of such Client Data and which creates a substantial risk of identity theft or fraud against one
or more of Client’s customers.


6.2. Client Responsibilities
 

Client shall be solely responsible for all Client Data in transit to and from the Hosting Services, including, without limitation, the
accuracy, quality, integrity and legality of such Client Data, and Client shall encrypt and back up all Client Data. Stella shall not
be liable for any damages arising from the failure of Client to encrypt or otherwise protect the Client Data outside of the Hosting
Environment.


6.3. License to Client Data


Client owns and retains all rights in and to all Client Data, including any reports prepared through the Service. Client grants Stella
a non-exclusive, non-transferable limited license to host, copy, transmit and display Client Data and any non-Stella applications
utilized by Client with the Client Data, as reasonably necessary for Stella to perform its obligations under this Agreement.


7. SUPPORT


Stella shall provide Support for the Service during the Service Term and in accordance with Exhibit 2. Support shall consist of: (i)
email and telephone support to assist Client with the use of the Service; and (ii) the correction of errors or non-conformities with the
Service in accordance with this Agreement.

 

8. FEES AND PAYMENTS


8.1. Fees; Taxes


Client shall pay the fees set out in an Order. The fees in an Order are exclusive of any taxes. Client shall pay or reimburse Stella
for all taxes imposed on the Service. Unless otherwise stated in an Order, the location of the Service shall be Client’s offices at
the address identified in this Agreement or an Order.


8.2. Payments


All fees and applicable taxes are due thirty (30) days following Client’s receipt of an invoice from Stella. Client shall pay a late
payment charge of 1% per month on any fees not paid by the due date.


9. CONFIDENTIAL INFORMATION


9.1. Definition


Confidential Information shall mean all confidential and proprietary information of either party (the “Disclosing Party”) that is
disclosed to the other party (the “Receiving Party”), including but not limited to: (i) the Service, pricing proposals, financial and
other business information, data processes and plans; (ii) research and development information, analytical methods and

procedures, hardware design, technology; (iii) business practices, know-how, marketing or business plans; (iv) this Agreement,
Order(s), User Materials; and (v) any other information identified in writing as confidential or information that the Receiving
Party knew or reasonably should have known was confidential.


9.2. Obligations


During the Term, each party may have access to certain Confidential Information of the other party. Confidential Information
shall be used solely for each party’s performance under this Agreement and the exercise of its rights hereunder and shall not be
disclosed to any third party; provided, however either party may disclose Confidential Information to a consultant, contractor,
legal or financial advisors to the extent that such consultant, contractor, legal or financial advisors has agreed to be bound by
confidentiality obligations comparable to the obligations set out in this Agreement. Each party shall take reasonable precautions,
at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information in
strict confidence. Each party shall be liable for a breach by its consultant, contractor legal or financial advisors of its obligations
under this Section.


9.3. Exclusions


Confidential Information shall not include any information that the Receiving Party can establish: (i) is or subsequently becomes
publicly available through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to
disclosure of such information; (iii) is subsequently disclosed to Receiving Party by a third party who is not in breach of an
obligation of confidentiality; or (iv) is independently developed by the Receiving Party without the use or benefit of the
Confidential Information. Either party may disclose Confidential Information pursuant to court order or a valid subpoena or as
required under any federal, state or local law, provided that the Receiving Party promptly notifies, subject to applicable law, the
Disclosing Party and provides the Disclosing Party an opportunity to seek an appropriate protective order.


9.4. Injunctive Relief


Disclosing Party may be irreparably damaged if the obligations under this Section are not enforced and Disclosing Party may not
have an adequate remedy in the event of a breach by Receiving Party of its obligations hereunder. The parties agree, therefore,
that Disclosing Party is entitled to seek, in addition to other available remedies, an injunction restraining any actual, threatened or
further breaches of the Receiving Party’s obligations under this Section or any other appropriate equitable order or decree. In
addition, if a party believes that injunctive relief is necessary to preserve the status quo or prevent further harm under this
Agreement, then a party may pursue such relief.


10. WARRANTY


10.1. General


Each party represents and warrants that: (i) it has and will continue to have during the Term all rights, power, and authority
necessary to enter into this Agreement and perform all of its obligations hereunder; (ii) the performance of its obligations under
this Agreement does not and will not violate any law applicable to such party’s performance, any rights of any third party, or any
agreement by which such party is bound; and (iii) it will procure all rights, certificates, licenses, permits or other approvals
required for its performance under this Agreement.


10.2. Performance


Stella further represents and warrants that during the Services Term that the Service shall perform all material functions set out
in the User Materials for such Service and shall otherwise operate in substantial accordance with such User Materials. In
addition, Stella represents that any support services for the Service, or additional services set out in an Order, shall be provided
in a professional and workmanlike manner in accordance with generally accepted industry standards. If during the Services
Term the Service fail to comply with this warranty, Client shall promptly notify Stella in writing of any alleged errors or non-
conformities with the Service. Upon such notice, Stella shall, as Client’s sole and exclusive remedy, correct such errors or non-
conformities in accordance with the User Materials.


10.3. Disclaimer


EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICE, INCLUDING ANY
ADDITIONAL SERVICES SET OUT IN AN ORDER, ARE PROVIDED “AS IS” AND STELLA DISCLAIMS ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND ANY ADDITIONAL SERVICES
FURNISHED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF 
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.


11. INDEMNIFICATION


11.1. Mutual


Each party (the “Indemnifying Party”) shall indemnify, defend and hold the other party (the “Indemnified Party”) harmless
from all losses, damages, costs and expenses incurred by the Indemnified Party resulting from (i) the Indemnifying Party’s gross
negligence or willful misconduct; or (ii) bodily injury, including death, or damage to tangible property caused by the
Indemnifying Party’s negligence.


11.2. Stella – Intellectual Property


Stella shall, at its own expense, defend Client against any claim by a third party that the Service infringe any patent or trademark
in the Territory or infringe or misappropriate any trade secret or copyright and pay the resulting costs and damages finally
awarded against Client by a court of competent jurisdiction to the extent that such are the result of the third party claim, or pay
the amounts stated in a written settlement negotiated and approved by Stella.


11.3. Stella – Obligations


If the Service are subject to a claim of infringement or in Stella’s opinion are likely to become, the subject of such a claim, Stella
shall, at Stella’s option and expense: (i) procure for Client the right to continue to use the Service; (ii) replace or modify such
Service so that it becomes non-infringing while retaining substantially equivalent functionality; or (iii) if Stella determines that
none of the foregoing are commercially reasonable, terminate the applicable Order and Stella shall provide Client with a refund
of any pre-paid fees for the Service that are subject to the infringement or misappropriation claim for the remaining months in
the Service Term. Stella shall have no liability if the alleged infringement or misappropriation results from: (x) Client’s
combination, operation or use of the Service with non-Stella products if such claim of infringement or misappropriation would
have been avoided had such combination, operation or use not occurred; (y) Client’s use of the Service in breach of this
Agreement, Order or AUP; or (z) Client Data or a non-Stella application.


11.4. Client Obligations


Client shall indemnify, defend and hold harmless Stella, its officers, directors and employees, from all losses, damages, costs and
expenses arising from or in connection with: (i) the unauthorized use of the Service; (ii) violation of the AUP; or (iii) a claim that
the Client Data infringes or misappropriates any third party intellectual property right or violates any applicable federal, state or
local laws, rules, statutes and regulations.


11.5. Process


The Indemnified Party shall promptly notify the Indemnifying Party of any claim covered under this Section 11. The
Indemnifying Party shall have control of the defense of any such claim and shall defend at its own expense, any such claim or
litigation, including the right to settle any such claim. The Indemnified Party shall reasonably cooperate with Indemnifying
Party, upon Indemnifying Party’s request and at Indemnifying Party’s cost, to defend such claim. Indemnified Party may elect
to participate in the defense of any claim with counsel of its choosing at its own expense.


12. LIMITATION OF LIABILITY


EXCEPT FOR INDEMNIFICATION CLAIMS UNDER SECTION 11 AND CLAIMS ARISING FROM A BREACH OF A
PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9, NEITHER PARTY, NOR ANY OF ITS OFFICERS,
DIRECTORS, EMPLOYEES OR OTHER REPRESENTATIVES OR AGENTS, SHALL BE LIABLE UNDER THIS
AGREEMENT FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES WAS DISCLOSED
OR COULD HAVE BEEN REASONABLY FORESEEN. EXCEPT FOR INDEMNIFICATION CLAIMS UNDER SECTION 11
AND STELLA’S RIGHT TO COLLECT FEES UNDER THIS AGREEMENT, NEITHER PARTY’S AGGREGATE LIABILITY
TO THE OTHER PARTY UNDER THIS AGREEMENT OR ANY ORDER SHALL EXCEED THE FEES ACTUALLY PAID (OR
PAYABLE) BY CLIENT TO STELLA UNDER THE IMPACTED ORDER DURING THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT WHICH IS THE SUBJECT OF THE CLAIM. THIS LIMITATION OF LIABILITY
APPLIES REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OF THIS

AGREEMENT OR OTHERWISE OR ANY OTHER LEGAL THEORY.

 

The rights and remedies set out in this Agreement allocate the risks between Stella and Client under this Agreement and the fees set out in an Order reflect the allocation of risks.


13. AUDIT RIGHTS


Stella (or a third party designated by Stella) shall have the right, upon reasonable notice to Client, one (1) time per each twelve (12)
month period and at Stella’ sole cost and expense during regular business hours to conduct an audit of Client's use of the Service. Any such audit shall consist solely of a review of Client's compliance with the terms and conditions of this Agreement. Client shall provide all reasonable assistance to Stella during such review. If an audit determines that Client’s use of the Service fails to comply with the terms of the Agreement, Client shall reimburse Stella for the cost of such audit.


14. TERMINATION; SURVIVAL


14.1. Term


The term of this Agreement shall commence on the Effective Date and shall remain in effect until terminated as set out herein (the
“Term”).


14.2. Termination for Cause


This Agreement may be terminated by either party upon written notice to the other party if: (i) the other party is in breach of any
material obligation under this Agreement and such breach continues uncorrected for a period of thirty (30) days after notice or an
additional period of time as may be agreed to by the parties; or (ii) the other party becomes insolvent or is adjudged as bankrupt
under Chapter 7 of the United States Bankruptcy Code, makes an assignment for the benefit of creditors; or has a receiver
appointed or files a petition of bankruptcy. Notwithstanding the foregoing, Stella may, in its sole option, suspend performance
arising from the use in violation of the AUP or if Client commits an act constituting a criminal activity or fraud.


14.3. Effect of Termination


Except as provided herein, upon termination or expiration of the Term: (i) all rights granted under this Agreement shall terminate
immediately and Client shall immediately cease use of the Service and any other Confidential Information of Stella; (ii) Client
shall pay any and all sums then owing to Stella as of the effective date of termination; and (iii) the parties shall promptly return or
destroy all Confidential Information of the other party in its possession. Sections 5, 6, 8-14, 16 and 17 shall survive termination
of this Agreement indefinitely or to the extent set out therein.


15. VIRUS


15.1. Service


Stella represents that to the best of its knowledge after utilizing commercially available virus-checking Service, the Hosting
Environment and Service made available to Client will be free from computer Service viruses, worms, trap doors, back doors or
other functions (collectively, “Virus”) that detrimentally interferes with or otherwise adversely affects Client’s use of the Service.


15.2. Client Data


Client represents and warrants that to the best of its knowledge after utilizing commercially available virus-checking Service the
Client Data does not contain any Virus and Client shall not introduce any Viruses into the Hosting Environment.


15.3. General


Each party represents and warrants that upon detection of a Virus, such party will promptly notify the other party and each party
will use its best commercial efforts to mitigate against any damages or effects caused by the Virus. Stella and Client will, as
applicable, use its best commercial efforts to promptly eliminate Viruses.


16. CHOICE OF LAW; DISPUTE RESOLUTION


16.1. Governing Law


This Agreement shall be governed by the laws of Maryland without regard to its rules on conflicts of law, excluding its choice of
law rules. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer

Information Transactions Act shall not apply to this Agreement. Any dispute arising under this Agreement shall be brought in a
state or federal court located in Montgomery County, Maryland. Neither party shall be entitled to bring any claim under this
Agreement more than twenty-four (24) months after the cause of action upon which the claim is based arose.


16.2. Dispute Resolution


Except as provided in Section 9, above, or any other circumstance in which a party is authorized under this Agreement to seek an
injunction or other equitable relief, any controversy or claim arising out of or relating to this Agreement, including the
determination of whether a dispute between the parties is subject to this provision, shall be settled by binding arbitration. The
arbitration shall be held in the Washington, D.C. metropolitan area in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect. The decision of the arbitrator shall be rendered within thirty (30) days
following conclusion of the arbitration, shall be in writing and shall set forth in detail the reasons for such decision. Judgment
upon the award may be entered in any court of competent jurisdiction. The arbitrator shall not award punitive or exemplary
damages or any damages in excess of the limitations set out in this Agreement. Notwithstanding the above, Stella may bring
legal action to recover any amount due under this Agreement. In the event of any action or proceeding (including arbitration)
brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys'
fees arising from such action or proceeding.


17. EXPORT; GOVERNMENT REQUIREMENTS


17.1. Foreign Corrupt Practices Act.


Each party shall: (i) comply with all applicable country laws relating to anti-corruption or anti-bribery, including but not limited
to the requirements of the Foreign Corrupt Practices Act, as amended, (“FCPA”) (15 U.S.C. §§78dd-1, et. seq.), the UK Bribery
Act (“UKBA”) and any legislation implementing the Organization for Economic Co-operation and Development “Convention on
Combating Bribery of Foreign Public Officials in International Business Transactions” (the “OECD Convention”) or other anti-
corruption/anti-bribery convention; (ii) neither directly nor indirectly, pay, offer, give, or promise to pay or give, any portion of
monies or anything of value received from the other party to a non-U.S. public official or any person in violation of the FCPA,
UKBA and/or in violation of any applicable country laws relating to anti-corruption or anti-bribery. Neither party shall: (1) give,
offer, promise or give a national of the U.K., U.S. or elsewhere, with the intention of inducing or rewarding a person to perform
certain functions improperly, where there is an expectation that those functions are to be performed in good faith, impartially, or
in a position of trust; or (2) request, agree to receive, or accept a financial or other advantage from another person whether a
national of the U.K., U.S. or elsewhere, intending that, in consequence, a relevant function or activity (as explained above) should
be performed improperly or as a reward for the improper performance of a relevant function.


18. GENERAL


18.1. Notices


Any notice required to be provided under this Agreement shall be in writing and will be delivered by overnight courier, US mail
or email, to the address identified above or such other address that either party may provide. Any notice sent be email shall also
be delivered by US mail. Any notice alleging a breach of this Agreement shall be sent by overnight courier or certified mail.


18.2. Assignment


Except as provided herein, neither party shall assign all or any part of its rights and obligations under this Agreement or an Order
without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Either party
may, upon notice to the other party, assign its rights and obligations under this Agreement to an Affiliate or to a third party that
acquires all or substantially all of its assets or voting securities; provided such Affiliate or third party has agreed in writing to be
bound by the terms of this Agreement and each applicable Order. In no event, however, Client shall not assign the Agreement or
an Order to an entity that is a competitor of Stella


18.3. Waiver


No waiver of or failure to act regarding any breach of this Agreement shall constitute a waiver of any prior, concurrent or
subsequent breach of the same or other provisions hereof.

 

18.4. Severability

 

If any provision is adjudged by a court of competent jurisdiction to be unenforceable, invalid or otherwise contrary to law, such
provision shall be interpreted so as to best accomplish its intended objectives and the remaining provisions shall remain in full
force and effect.


18.5. Independent Contractors


The parties hereto are and shall remain independent contractors and nothing herein shall be deemed to create any agency,
partnership, or joint venture relationship between the parties. Neither party shall be deemed to be an employee or legal
representative of the other nor shall either party have any right or authority to create any obligation on behalf of the other party.

 

18.6. Force Majeure
 

Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting
from any condition beyond its reasonable control.

 

18.7. Entire Agreement
 

This Agreement constitutes the entire agreement between Stella and Client, and supersedes all prior agreements, proposals,
purchase orders, understandings, representations or correspondence relevant to the subject matter hereof. Client has not been
induced to enter into this Agreement by any representations or promises not specifically stated herein. This Agreement and any
SOW shall be signed by authorized representatives of Stella and Client.

EXHIBIT 1


SERVICE LEVEL AGREEMENT

1. DEFINITIONS


For the purpose of this SLA, the following terms shall have the corresponding definitions:


"Availability"; means the total percentage of time within a Calendar Month that the Service are available through the Hosting
Services, excluding Scheduled Downtime and Emergency Maintenance, and shall be calculated as follows:
(Maximum Availability – Unscheduled Downtime) / Maximum Availability, expressed as a percentage.


“Business Hours” means 9:00 am – 5:00 pm EST on Monday – Friday, excluding federal holidays in the United States.


“Calendar Month” means each calendar month during the License Term.


“Emergency Maintenance Support” means instances where it is not practical for Stella to provide advance notice of a maintenance
event, such as an unforeseen disruption of a critical service. Addressing these events may require that emergency maintenance be
performed which may result in the disruption of the Hosting Services in order to conduct this emergency maintenance without prior
notice.


“Incident” means a report issued to Stella by Client informing Stella that the Service is experiencing a potential Service Disruption,
which report shall be issued during the course of the potential Service Disruption.


“Maximum Availability” means the total number of minutes in a Calendar Month less the Scheduled Downtime.


"Scheduled Downtime” means routine tests, maintenance, upgrades or repairs performed by Stella on the Hosting Environment;
provided, Stella will use reasonable commercial efforts to provide Client ten (10) calendar days prior notice of Scheduled Downtime.

 

“Service Disruption” means each occasion of 10 or more consecutive minutes in which License is unable to access the Service.


“Service Level” means the Availability of the Hosting Services in a Calendar Month.


“Service Level Exceptions” means the exclusions from a Service Outage set out in Section 3, below.


“Service Outages” means the aggregate of Service Disruptions in a Calendar Month, excluding the Service Level Exceptions.


2. INCIDENT PRIORITIZATION


All Incidents that are reported to Stella or that Stella otherwise becomes aware of will initially be assigned a priority by Stella as set
forth in the Support Guidelines.


3. SERVICE CREDITS


If Client reports one or more Incidents and such Incidents are validated as Service Disruption, subject to the Service Level Exceptions,
Stella shall provide Client with the following Service Level Credits if in any Calendar Month the Service Availability is 99.5% or
lower:

AVAILABILITY SERVICE LEVEL CREDIT
99% - 99.50%    1%
95% - 98.90%    3%
90.1% - 94.9%   5%
<90.0%               10%

The Service Level Credits shall be calculated based on the fees paid for the Service during the applicable month the Service
experienced a Service Disruption.


4. SCHEDULED MAINTENANCE SUPPORT

Standard Support, including the implementation of updates or enhancements to the Service and routine maintenance for the Service,
shall be scheduled outside of standard business hours. Stella shall notify Client as provided herein if Scheduled Downtime is required.


5. NOTICE OF SERVICE OUTAGE; REMEDY
 

If Client is unable to access the Service, Client shall promptly notify Stella. To receive a Service Level Credit, Client must notify
Stella during the occurrence of the outage problem to provide Stella an opportunity to resolve the outage. Upon the conclusion of
each Calendar Month, Stella shall determine the Service Level for such Calendar Month. If Client is entitled to a Service Level
Credit, Stella shall, as Client’s sole and exclusive remedy for the Service Outage, include the Service Level Credit on the subsequent
annual invoice for the Service. If the Service Level Credit occurs in the last month of the License Term, Stella shall provide Client
with a refund equal to the Service Level Credit within thirty (30) days following termination of the applicable License Term.

 

6. SERVICE LEVEL EXCEPTIONS


Stella shall not be liable for any failure to meet the Service Levels, to the extent such failure was caused by one or more of the
following:

 

  • Scheduled Downtime or Emergency Maintenance.

  • non-production use of the Services.

  • a Force Majeure.

  • any act or omission of Client, including the failure to comply with the Agreement, Order or the AUP.

  • an outage caused by Client’s hardware, Service or other third-party equipment procured, licensed or controlled by Client, including network connections and telecommunication problems, or by any hardware, Service or other equipment outside the Hosting Environment.

7. RESPONSE TO SERVICE LEVEL FAILURE


In the event of a Service Failure, Stella shall promptly address such failure as provided herein:

  • Promptly investigate and report on the causes of such problem based on the assigned severity level.

  • Provide a root cause analysis of such failure as soon as practical after such failure or at Client’s request.

  • Correct such Service Failure that is Stella’ fault or responsibility as provided herein.

  • Advise Client of the status of remedial efforts being undertaken with respect to such problem.

  • Demonstrate that the causes of such problem (that is Stella’ fault or responsibility) has been, or shall be, corrected.

  • Take corrective actions to prevent any recurrence of such problem (that is Stella’ fault or responsibility).

EXHIBIT 2

SUPPORT

1. Hours

General support for the Service is available Monday through Friday via email, during the hours of 9AM – 5PM New York City time , excluding Stella corporate designated holidays.  

2. Client Personnel                                                                                                                                                 

Client shall designate two (2) contacts in the Order to receive Support (“Service Contacts”).  Client may change Service Contacts upon written notice to Stella from time to time.  Stella will not be obligated to provide support to any person other than the designated Service Contacts.

3. Severity Levels. 

The following Severity Levels shall apply to the Service

Severity Level 1

Description

S1 Critical Problem:   The Service is unavailable or Client is experiencing a problem that has a critical impact in production.

Time to Respond

4 Business Hours

Response Procedure

 Continuous effort until the issue is resolved or a workaround is developed.

Severity Level 2

Description

S2 Significant Problem:  Client is experiencing a problem causing a partial loss in use of the Service and lost or limited functionalities are not critical.

Time to Respond

8 Business Hours

Response Procedure

Stella will engage staff during Business Hours to produce a workaround.  If no workaround is available, Stella will provide an interim solution by a mutually agreed upon date, and a permanent solution in an upcoming Service Upgrade.

Severity Level 3

Description

S3 Minor Problem:  Client is experiencing a problem causing a minor loss of functionality of the Service but the loss can be tolerated.  

Time to Respond

2 business days

Response Procedure

Stella will schedule staff to work with Client to discuss an acceptable workaround.  The workaround may be replaced by a permanent solution in a future Service Upgrade.

4. Client Generated Errors.

Stella shall have no obligation to provide support for the Support for performance or operational problems that Stella determines are Client Generated Errors.   Client agrees to pay Stella, at the then current consulting rates for any time Stella spends to diagnose a Client Generated Error.

EXHIBIT 3

 

ACCEPTABLE USE POLICY

 

OVERVIEW

By accessing or using the Hosted Services, Client consents to the terms of this AUP. Stella may modify this AUP in its discretion at any time upon notice to Client.
 

SUSPENSION, TERMINATION

If Stella determines that Client has violated this AUP, Stella may terminate or suspend its provision of the Service to Client.  Stella will suspend service for violation of the AUP on the most limited basis that Stella determines is reasonably practical under the circumstances to address the underlying violation. Stella will attempt to notify Client prior to suspending service for violation of the AUP (which may be via email or any other notification); provided, however, Stella may suspend service without notice if Stella becomes aware of a violation of any applicable law or regulation or activity, including but not limited to a violation of the AUP, that exposes Stella to criminal or civil liability or that exposes the Hosting Environment or any third party property to harm. Stella shall not be liable for any damages of any nature suffered by any Client resulting in whole or in part from Stella' lawful exercise of its rights under this AUP. 

 

PROHIBITED CONDUCT

General

The Hosted Services must be used in a manner that is consistent with the intended purpose of the Hosted Services and shall only be used for lawful purposes. Client shall not use the Hosted Services to transmit, distribute or store content: (a) in violation of any applicable law or regulation, including export or encryption laws or regulations; (b) that may adversely affect the Hosted Services or other Stella customers; or (c) that may expose Stella to criminal or civil liability.

 

Inappropriate Content

Client shall not use the Hosted Services to transmit, distribute or store material that is inappropriate, as reasonably determined by Stella, or material that is obscene (including child pornography), defamatory, libelous, threatening, abusive, hateful, or excessively violent. Notwithstanding the foregoing or anything else to the contrary, no pornographic content of any kind shall be stored (either permanently or temporarily), processed by or transmitted through any of the Hosted Services.

 

Intellectual Property

Client shall not use the Hosted Services in any manner that would infringe, dilute, misappropriate, breach or otherwise violate any third-party intellectual property rights or any applicable laws. Client is responsible for ensuring that all applications, Service, programs, and content which are submitted to or utilized with the Hosted Services are properly licensed from the applicable third parties.  Client shall indemnify Stella in accordance with the Agreement for any claims by third parties brought against Stella based on an allegation that Client failed to comply with the obligations set out in this paragraph.

 

Harmful Content

Client shall not use the Hosted Services to transmit, distribute or store material that may be harmful to or interfere with the Hosted Services or any third party's networks, systems, services, or web sites, such as, but not limited to, viruses, worms, and Trojan horses.

 

Fraudulent/Misleading Content

Client shall not use the Hosted Services to transmit or distribute material containing fraudulent offers for goods or services, or any advertising or promotional materials that contain false, deceptive, or misleading statements, claims, or representations or which do not comply with any applicable advertising laws, rules or regulations.

 

Collecting Information

Client shall not use the Hosted Services to store or collect, or attempt to store or collect, personal data (including data as defined in the Data Protection Directive (Directive 95/46/EC)) relating to any third parties without their prior knowledge and consent.  Client shall comply with the Data Protection Directive and all other applicable data protection legislation.

 

Email and Unsolicited Messages

Client shall not use the Hosted Services to transmit unsolicited e-mail messages, including, without limitation, unsolicited bulk email ("spam"). Further, Client shall not use the service of another provider to send spam to promote a website hosted on or connected to the Hosted Services or to send e-mail messages which are excessive and/or intended to harass others.

 

Other Improper Actions

Client shall not use the Hosted Services to conduct activities that may be harmful to or interfere with the Hosted Services or any third party's networks, systems, services or Web sites, including, but not limited to, flooding, mail bombing, or denial of service attacks. Client shall not violate or attempt to violate the security of the Hosted Services or the computers, accounts, or networks of another party. Client shall not engage in any activity considered a precursor to attempted security violations, including, but not limited to, any form of scanning, probing, or other testing or information gathering activity. Inappropriate activity may result in civil or criminal liability. Stella may investigate such activity and may involve and cooperate with law enforcement authorities in prosecuting Client involved in such activity.

 

Responsibility for Content

Stella takes no responsibility for any content created or accessible on or through the Hosted Services. Stella shall not monitor such content nor exercise any editorial control over such content. If Stella becomes aware that any such content may violate this AUP and/or expose Stella to civil or criminal liability, Stella reserves the right to block access to such material and suspend or terminate its provision of the Hosted Services to Client. Stella further reserves the right to cooperate with legal authorities and third parties in any investigation of alleged wrongdoing.