Stellar Terms of Service

LAST UPDATED, 2024

STELLAR SERVICE TERMS AND CONDITIONS

These Stellar Service Terms and Conditions (these “Terms”), together with any applicable Order Form(s) and applicable Statements of Work (collectively, the “Agreement”), constitute a binding agreement between Stellar Software, LLC (“Stellar”), and any legal entity that purchases or uses the Services (“Customer”, collectively with Stellar, the “Parties” and each, a “Party”) under which Stellar provides Customer access to Services. Customer accepts and agrees to be bound by the Agreement by executing an Order Document or by using Stellar’s Services.

Article 1 – DEFINITIONS

Section 1.1 Definitions. The following capitalized terms shall have the respective meanings ascribed to them below for purposes of this Agreement. Other capitalized terms defined elsewhere in this Agreement, or any document referenced herein shall have the respective meanings ascribed to them there. 

1. 1. “Additional Services” are the Services referred to in Section 3.
   2. “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party. For this definition, “control” means direct or indirect ownership of more than 50% of the voting interests of the subject entity.
   3. “Authorized User” means an individual who is associated with Customer or an Affiliate as an employee or contractor.
   4. “Reservation Software” is any software that manages reservations for Reservable Assets; including but not limited to reservation management (including reservation grid and employee booking interface), club management, online booking, waitlist tracking, and user management.
   5. “Breakage Costs” are defined in Section 8.5.
   6. “Clients” are Customer’s customers.
   7. “Confidential Information” with respect to either Party, means information, other than Non-Confidential Information (as defined below), that is treated by the Party as confidential, including, but not limited to: (a) any engineering, technical, or product specifications, or designs of any current or future product or project of the Party; (b) any computer software (whether in source or object code) and all flow charts, algorithms, coding sheets, design concepts, test data, or documentation related thereto, whether or not copyrighted, patented, or patentable; (c) information concerning the Party’s pricing strategies, licensing strategies, and advertising campaigns; (d) information regarding the Party’s executives, employees, personnel assignments, customers, and  suppliers; (e) financial information relating to the Party or its customers; (f) training, policy, and procedure manuals developed or used by the Party; (g) any data or information defined herein as a Trade Secret; and (h) information relating to the Party’s past, present, or contemplated business activities. Customer Data shall be deemed Confidential Information of Customer.
   8. “Customer Content” means all Customer owned content provided by Customer for use in the performance of the Services, including without limitation all Customer trademarks, service marks, logos, typeface/fonts, images and text.
   9. “Customer Data” means any data and information provided or made available to Stellar by or on behalf of Customer, its Affiliates or its Clients in connection with the Services.
   10. “Deliverables” are any of the Products or Services provided by Stellar to Customer pursuant to this Agreement or any Order Forms or Statements of Work hereunder.
   11. “Fees” means the amounts to be paid by Customer to Stellar for the Products and Services.
   12. “Intellectual Property” means all of the following owned by a Party: (a) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (b) patents, patentable inventions, computer programs, and software; (c) databases; (d) trade secrets and the right to limit the use or disclosure thereof; (e) copyrights in all works, including software programs; and (f) domain names.
   13. “Intellectual Property Rights” means, collectively, all rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including moral rights and similar rights.
   14. “Location” shall mean any separate facility or other location operated by Customer for the purpose of leasing, renting, or otherwise providing Reservable Assets on a “for hire” basis.
   15. “Maintain” or “Maintenance” means, with respect to any Products and Services, including but not limited to Software as a Service, to maintain the Products, including: the installation of patches or updates for the Stellar platform as well as patches or updates for third party software integrated in the Stellar platform which are provided without charge to Stellar by the licensor of such programs to fix defects in such programs including, without limitation, version upgrades; and database administration functions including performance monitoring, tuning, and table space monitoring.
       “Maintain” or “Maintenance” shall not include the inclusion of additional functionality or the modification of any source code of computer programs that were not created or otherwise supplied to Customer by Stellar.
   16. “Non-Confidential Information” means information which (i) is in the public domain at the time of its disclosure or thereafter becomes part of the public domain through no fault of the receiving Party; (ii) can be demonstrated by credible evidence to have been rightfully known to the receiving Party on a non-confidential basis prior to the time of its disclosure or to have been independently developed by the receiving Party; or (iii) is subsequently learned from a third party not under a confidentiality obligation to the disclosing Party.
   17. “Operational Date” means the implementation date for the Services with respect to each Location as mutually agreed by the Parties. In the absence of specific written agreement to the contrary by the Parties, the Operational Date shall be the same as the Effective Date.
   18. “Products” are any products, including but not limited to software, created and/or provided to Customer by Stellar pursuant to this Agreement and/or any Order Forms
   19. “Reservable Assets” are any physical, digital or contract assets that are able to be reserved for any length of time using the System including but not limited to: boats or other aquatic vehicles, accommodations, vessels or devices. Customer does not need to own, lease, manage or otherwise control the assets for them to be considered Reservable Assets.
   20. “Service Termination Date” is the last date Services are performed under this Agreement.
   21. “Services” means any services to be provided by Stellar to Customer and/or Client pursuant to this Agreement and/or any Order Forms.
   22. “Services Availability” is defined as the ability to resolve a connection to the Stellar IMS system from a properly connected internet enabled device. “Service Availability” incurs “Downtime” when the ability for a customer to access the system is not available, in each case, due to a problem with the Stellar IMS infrastructure, software or systems; Monthly Downtime shall not include the non-availability of the Stellar Service as a result of specific downtime due to Internet backbone issues, any bug or temporary issue with non-critical Stellar features (i.e., 3rd party service integration, uploads, etc.) a Service Interruption Event, Scheduled Outage, or User-side issue (e.g., problems with Customer’s Produced Content or Internet connectivity issues).
   23. “Statements of Work” are any statement of work documents entered into between and executed by the Parties pursuant to this Agreement. 
   24. “System” shall include and encompass the current version of the Stellar IMS platform. Stellar reserves the right to make updates to the System from time to time at its sole discretion.
   25. “System Availability” means the availability of the System as further defined in Section 3.3 below.
   26. “Term” is the Initial Term and all Renewal Terms.
   27. “Trade Secrets” means information, without regard to form, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential Customers or suppliers which is not commonly known by or available to the public and which information: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The term Trade Secrets also includes anything defined as a trade secret under applicable state or federal law.

   Article 2 – AGREEMENT AND TERM

   Section 2.1 Provision and Licensing of Services. During the Term, subject to payment of the Fees, Stellar hereby grants to Customer a non-exclusive, non-transferable license for use of Deliverables, subject to the terms and conditions hereto. Stellar reserves the right to modify or discontinue, temporarily or permanently, the Deliverables (or any part thereof). All rights not expressly granted to Customer are reserved by Stellar. 

   Title to and all ownership rights in the Deliverables will remain vested in Stellar, and nothing in this Agreement will give or convey any right, title or interest therein to Customer except as a limited licensee under the terms of this Agreement. ALL INTELLECTUAL PROPERTY RIGHTS, TITLE AND INTEREST IN AND TO THE DELIVERABLES SHALL REMAIN WITH STELLAR AND SHALL NOT PASS TO THE CUSTOMER UNDER ANY CIRCUMSTANCES. NO PART OF THIS AGREEMENT OR ANY ADDENDUM HEREUNDER SHALL BE CONSTRUED OR INTERPRETED SUCH AS TO CONFLICT WITH THIS PROVISION.

   Customer acknowledges and agrees that the Product includes proprietary software owned by Stellar, and Customer is being granted an individual, limited, non-exclusive, non-transferable license to use the Deliverables subject to the terms and conditions of this Agreement. Customer acknowledges and agrees that Customer, its employees, contractors and agents, are expressly prohibited, directly or indirectly, from (a) attempting to discover the source code, underlying algorithms, or technology of the Deliverables; (b) renting, leasing, selling, assigning, or transferring rights to the Product in any way (including, without limitation, directly, indirectly or by operation of law through a merger, sale of controlling equity interest or otherwise); (c) modifying or making derivative works based on the Deliverables; (d) use the Deliverables in any way whatsoever to develop (or assist another party in developing) a competing product; (e) using the Deliverables in any service bureau or timeshare capacity; or (f) creating internet “links” to the Service or any other server or wireless or internet based device. Customer acknowledges and agrees that Stellar retains exclusive ownership throughout the world of the Product, including portions or copies, and all rights not expressly granted to Customer are reserved by Stellar.

   Section 2.3 Exclusivity. During the Term of this Agreement, Stellar shall be the exclusive provider of reservation management software or Reservable Asset management services to Customer.

   Section 2.4 Ownership of Intellectual Property. Subject to the terms and conditions of this Agreement, results of any Services performed under this Agreement, whether delivered or created in any stage of development, including, without limitation, any and all Deliverables, Delivered Product, Software, Development Services, Proofs of Concept, Prototypes, documentation, trade secrets, inventions (whether or not patentable or reduced to practice), improvements, processes, development of materials, or data that  Stellar makes, conceives, or devises, either solely or jointly, directly in conjunction with the performance of the Development Services performed under this Agreement (the “Work Product”) shall NOT be deemed WORK MADE FOR HIRE. Customer hereby acknowledges and agrees that all right, title, and interest in and to the Work Product, including, without limitation, worldwide intellectual property rights, shall vest in Stellar from the Effective Date, and Customer shall have no right, title, or interest in or to such Work Product. To the extent that title to any Work Product may not, by operation of law, vest in Stellar or such Work Product may be considered “work made for hire,” all rights, title and interest therein are hereby irrevocably assigned to Stellar. All Work Product shall belong exclusively to Stellar, with Stellar having the right to obtain and to hold in its own name, copyrights, registrations or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof.

   Section 2.5 Customer IP. Notwithstanding anything set forth herein, any materials owned by Customer prior to Stellar performing Services for Customer or which do not directly relate to the Deliverables (the “Customer IP”) are, and shall at all times remain, the sole and exclusive property of Customer, including all worldwide Intellectual Property Rights embodied in, related to, or represented by, the Customer IP.

   Section 2.6 Customer License. Customer hereby grants to Stellar a non-exclusive right and license (or, as applicable, sub-license), for the Term of this Agreement to use the Customer IP. Customer shall not provide to Stellar any Customer IP or other materials for which Customer does not have the right to make the foregoing license.

   Section 2.7 Third Party Products. Customer acknowledges and agrees that Customer’s rights to use any third-party-owned software, content or products supplied or used by Stellar in the course of this Agreement (collectively, the “Third Party Products”) shall be subject to the terms and conditions of the applicable license and other agreements from the owners or licensors of the Third Party Products. Stellar shall indemnify, defend and hold Customer harmless from and against any action brought against Customer with respect to any claim, demand, cause of action, debt or liability, including reasonable fees of attorneys and other professionals, to the extent that such action is based upon or arises out of any breach by Stellar of the terms of any license to Third Party Products or unauthorized delivery of any Third Party Products by Stellar to Customer.

   Article 3 – STELLAR RESPONSIBILITIES; REPRESENTATIONS AND WARRANTIES

   Section 3.1   Products and Services.   Commencing on the Operational Date, Stellar shall provide, subject to the terms of this Agreement and Customer’s faithful execution of its obligation hereunder, the Products and/or Services set forth in Customer’s Order Form.

   Section 3.2 Additional Services. If Customer requests Stellar to perform any service that is not included in the Schedule of Products and Services as set forth in an Order Form (the “Additional Service”) and if Stellar accepts such requests in writing the Additional Services shall be carried out in accordance with a written Statement of Work (“SOW”).

   Section 3.3 Service Access and Availability.

   Customer shall be solely responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Deliverables (“Customer Environment”), and for paying all third-party access charges incurred while using the Deliverables. Stellar warrants that the Service will have 99% Service Availability and uptime reliability during the hours of 6:01 a.m. through 11:59 p.m. Eastern Time, excluding (a) Scheduled Maintenance during the hours of 12:00 a.m. through 6:00 a.m. Eastern Time, on Sundays, or which are announced to Customer at least seventy-two (72) hours in advance; (b) scheduled down time for security related upgrades or changes which are announced to Customer at least seventy-two (72) hours in advance, (subsections (a) and (b) hereof being collectively, “Scheduled Down Time”); or (c) service unavailability for failure of Customer’s systems, failure of Customer to obtain and maintain all computer hardware, software and communications equipment referenced above or to pay for such third-party access charges incurred while using the Service, acts of God or acts of terrorism (collectively the “Service Level”).

   Section 3.4 Service Credit.

   1. As Customer’s exclusive remedy, if Stellar fails during any month to meet the Service Level, Customer, as its sole remedy for such failure, will be entitled to a credit (“Service Credit”) of ten percent (10%) of the base fees owing by it to Stellar for the month in which Stellar fails to meet the Service Level.
   2. As Customer’s exclusive remedy, for each consecutive month in which Stellar fails to meet the Service Level, Customer will, as its sole remedy for such failure, be entitled to a Service Credit of fifteen percent (15%) of the base fees owing by it to Stellar for each such consecutive month.
   3. As Customer’s exclusive remedy, in the event Stellar fails to meet the Service Level for any three (3) months during a rolling twelve (12) month period, or System Availability, as defined in the Agreement, for each of three (3) months during a rolling twelve (12) month period is less than 99%, Customer will be entitled to a Service Credit of twenty percent (20%) of the base fees owing by it to Stellar for each additional month within the twelve (12) month period noted above beyond the three (3) months noted above, in which Stellar fails to meet the Service Level and Customer will, as its sole remedy for such failure, have the right to immediately terminate this Agreement for cause on written notice to Stellar.

   Article 4 – PROJECT MANAGEMENT AND CHANGE CONTROL PROCESS

   Section 4.1 Principal Contacts. Stellar shall designate an account manager (the “Stellar Account Manager”), who shall be reasonably available to Customer for purposes of discussing all work and business between them. Customer shall designate an individual with full authority to act on behalf of the Customer and who shall be available to the Stellar Account Manager to discuss all work and business with Stellar (the “Customer Manager”).

   Section 4.2 Changes. The Parties agree and acknowledge that all charges and specifications for the Services set forth herein (including without limitation any Monthly Base Charges) are based upon, and dependent upon, certain project assumptions and are subject to change upon the occurrence of Change(s) (as defined herein) during the term of this Agreement. For purposes of this Agreement, “Change(s)” shall mean any significant change (whether occurring at a discrete moment in time or accruing as a result of minor changes over time) in or to the System or Services requested by Customer which results in, or is caused by, operation of the System or provision of the Services in or under (i) actual conditions which vary from the project assumptions, including but not limited to material decreases in the number of units of inventory managed by Customer under this Agreement or (ii) increased demands upon the System or any component thereof. Without limiting the foregoing, “Change(s)” are expressly deemed to include (a) a thirty (30) percent increase of the demand on the System, Services or capacity of Stellar’s facilities due to changes in Customer’s business structure or operations (including, without limitation, increases in Customer’s business operations, workforce or number of transactions processed using the System); and/or (b) a thirty (30) percent decrease in the number of units of inventory managed by Customer under this Agreement.

   Section 4.3 Change Control Process. All Changes shall be addressed using the formal change control process set forth herein below to be implemented by Customer and Stellar jointly after the Effective Date (the “Change Control Process”).

   Customer agrees to notify Stellar of any circumstances which Customer reasonably should know constitute, may constitute, or may result in a Change. Whenever a potential Change is identified, Stellar shall assess the impact of the potential Change, considering resources required, interfaces to other System(s) and other planned and in-process Changes and shall, if it deems it appropriate in its sole discretion, present an analysis and proposal for amendment to the applicable Order Form or SOW to the Customer for approval. In such event, the Parties shall negotiate in good faith an amendment to this Agreement which sets forth the applicable specifications, schedules, resources to be utilized, responsibilities of both Parties, licensing costs, implementation costs, and/or definition of successful completion with respect to addressing such Change. In the event that the Parties fail to execute an amendment as described herein, this Agreement shall remain unchanged and in full force and effect.

   Section 4.4 Crisis Management. Customer acknowledges that in instances requiring crisis management by Stellar (including without limitation system outages), demands on Stellar’s Services may exceed the available capacity of Stellar’s Services. In any such instance, Stellar shall be entitled to prioritize Services and otherwise curtail utilization of its facilities in its sole but reasonable discretion.

   Section 4.5 Force Majeure. Excluding payment obligations herein, each Party shall be excused from any delay or failure in performance under this Agreement for any period if and to the extent that (a) such delay or failure is caused by factors beyond the reasonable control of that Party, including, without limitation, acts of God, riots, acts of war, terrorism, pandemics, epidemics, governmental order, fire, communications line failures, work stoppage, power failures, earthquakes, severe weather, or floods or other natural disasters, and (b) such delay or failure could not have been prevented by reasonable precautions by that Party. Delays or failures that are excused as provided in this Section shall result in automatic extensions of dates for performance for a period of time equal to the duration of the events excusing such delay or failure. Notwithstanding the foregoing, if such event continues for more than ninety (90) days, the other Party may cancel unperformed Services and terminate this Agreement upon five business days’ advanced written notice to the other Party subject to Breakage Costs, as provided for in Section 8 of this Agreement. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or use all efforts that are reasonable under the circumstances to resume performance of its obligations hereunder as soon as feasible.

   Section 4.6 Subcontracting; Independent Contracting Rights. Stellar shall be entitled, subject to the other provisions of this Section, to permit employees, agents, subcontractors and contractors of Stellar or Customer to access all or any portion of the Product and data pertaining to the Product, where applicable, for the purpose of allowing such employees, agents, subcontractors and contractors to provide Services to Customer on behalf of Stellar or Customer. In connection therewith, each party shall be solely responsible for any access by such party’s employees, agents, subcontractors and contractors to the Product and data pertaining to the Product. 

   Article 5 – FEES AND PAYMENT

   Section 5.1 Fees; Annual Adjustments. The fees payable by Customer hereunder and all rates are set forth on any applicable Order Forms or Statements of Work executed pursuant to this Agreement, and are subject to increase effective on or about either each anniversary of the Effective Date or the first day of each calendar year.  Any delay in implementing such increases is not a waiver thereof. 

   Section 5.2 Taxes and Expenses. In addition to any other payments hereunder, Customer shall be responsible for, and shall promptly pay or reimburse Stellar for the payment of, all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any government agency that are based on or that relate to any services or goods provided by Stellar for Customer or the amounts payable to Stellar therefore.  Customer is solely responsible for properly reporting taxable income made in connection with any payments or refunds performed using the Services. Customer agrees that Stellar will have no liability relating to your failure to report any taxable income made in correction with the use of the Services or to pay taxes on that income. Customer further agrees to indemnify Stellar against liability to any third party, including the Internal Revenue Service or any state or local taxation authority, arising out of Customer’s failure to report any taxable income made in connection with the Services or to pay taxes on that income. In addition to all other payments hereunder, Customer agrees to reimburse Stellar for any reasonable travel, lodging, out-of-town meals, and other expenses incurred by it in providing any Services. Such reimbursement shall be subject to Stellar providing reasonable evidence of such expenses. Notwithstanding the foregoing, Customer has no liability for any taxes based on Stellar’s employees, net assets or income.

   Section 5.3   Time and Manner of Payment. Subject to the terms and conditions of this Agreement, Customer shall pay to Stellar all Fees provided hereunder, to the extent said fees are not collected directly by Stellar, and all such charges and expenses shall be due NET 15 (unless agreed) from the day of issuance of the invoice from Stellar, and shall be paid in accordance with Stellar’s then-effective billing and payment policies, as communicated to Customer. Any payments by Customer made after its due date shall result in a late fee being assessed to Customer in the amount of the lesser of 1.5 % per month, or the highest rate permitted by law. Any sum due to Stellar that is not disputed by Customer in good faith and not paid within thirty (30) calendar days after issuance of the applicable invoice, subject to a five (5) day advance written notice to Customer, may result in immediate suspension of services by Stellar until such time as all such amounts due and owing at the time are paid in full. The “day of issuance” shall be the day the invoice is delivered by hand or transmitted electronically to Customer, the next business day after it is deposited with an overnight delivery service such as Federal Express, or three (3) business days after it is deposited in the United States mail. Customer shall pay all invoices via Check, eCheck, or ACH payment methods. With respect to any convenience fees collected directly by Stellar from any credit card payments processed by Stellar on behalf of Customer, Stellar shall be entitled to immediately collect its portion of said fees from payments collected on behalf of Customer.

   Section 5.4 In the event that Customer fails to make payment of Fees within thirty (30) days of the due date of said payment, Stellar shall have the right, in its sole discretion, to terminate this Agreement and any applicable Statements of Work or Order Forms, without prejudice to its other rights law, in equity, or herein.

   Section 5.5 Stripe Connected Account: Payment processing services for you on Stellar are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement (collectively, the “Stripe Services Agreement”). By agreeing to this TOS or continuing to operate as a business on Stellar, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Stellar enabling payment processing services through Stripe, you agree to provide Stellar the information we request concerning you and your business, including your owners and officers.  You agree to update the information you provide us as it changes, including any acquisition by a person of twenty-five percent (25%) or more of the equity interests of you if you are a legally formed business entity (e.g., corporation, limited liability company).  You represent and warrant to us that any information you provide us is true, accurate and complete.  If you do not comply with this Section 5.3, payments processed on your behalf may be delayed or withheld until you comply or placed in the Reserve (defined in Section 5.8) until you comply.  You authorize Stellar to share any information you provide to us and transaction information related to your use of the payment processing services provided by Stripe.

   Section 5.6  Debit and Credit Authorization.  From time to time, you authorize us to initiate individual or recurring debit or credit entries to the bank account linked to your Account or any other bank account owned or controlled by you.  Debit entities may be initiated to pay any Losses related to your transactions, your use of the Services including, but not limited to, processing refunds, and to pay for hardware, if applicable.  Credit entries may be initiated to deposit payment processing payouts or your use of the Services.

   Section 5.7  Processing Fees: You are responsible to pay all processing fees imposed by the credit card brands, Stripe or any other third party payment processor, as well as any additional fees imposed by Stellar for processing payments, refunds, payouts, or disputes.

   Section 5.8  Reserve.  We may withhold funds from payment processing payouts to you and/or designate an amount of funds that you must maintain in a reserve account held by us (“Reserve”) to pay any Losses related to your transactions or your use of the Services or to secure the performance of your obligations under any agreement between you and us (including this TOS) or between you and Stripe, including payment of any amounts you owe us.  The Reserve will be in an amount determined by us in our sole discretion to cover potential Losses we may incur or obligations you owe us or Stripe. The Reserve may be raised, reduced or removed at any time by us, at our sole discretion. If you do not have sufficient funds in your Reserve, we may fund the Reserve from any funding source associated with your Account, including your linked bank account.  You grant us a security interest in and lien on any and all funds held in the Reserve, and also authorize us to make any withdrawals or debits from the Reserve, any bank account linked to your Account or any other bank account you own or control, without prior notice to you, to cover any Losses or obligations you owe us or Stripe or any Losses you are responsible for, and collect amounts that you owe us or that you are responsible for. You will execute any additional documentation required for us to perfect our security interest in any funds in the Reserve. This Section 5.8 will survive the termination or expiration of this TOS for one (1) year.  After the end of this one (1) year period, we will return to you any funds remaining in the Reserve. 

   Section 5.9  Taxes: You are solely responsible for properly reporting taxable income made in connection with any payments or refunds performed using the Services. You agree that Stellar will have no liability relating to your failure to report any taxable income made in correction with the use of the Services or to pay taxes on that income. You further agree to indemnify Stellar against liability to any third party, including the Internal Revenue Service or any state or local taxation authority, arising out of your failure to report any taxable income made in connection with the Services or to pay taxes on that income.

   Article 6 – CUSTOMER RESPONSIBILITIES

   Section 6.1 Cooperation and Assistance. In addition to the payment of the amounts described herein, Customer shall discharge all of its obligations under this Agreement and Customer shall reasonably cooperate with Stellar with regard to the performance of Stellar’s obligations hereunder, including (without limitation):

   1. Providing to Stellar such information, data, access to premises, remote access to Customer’s equipment via separate, Customer-approved communications facilities, management decisions, approvals, and acceptances as may be reasonable to permit Stellar to provide the Services hereunder; and
   2. Not abusing or misusing Stellar’s Services, any of the components thereof, or any of the capabilities provided thereby; and
   3. Maintaining adequate communications facilities and equipment to support Customer demand upon the System.

   Section 6.2   Provision of Data.    Customer shall be solely responsible for the quality and accuracy of all Customer Data. Customer shall follow prudent practices for the operation of its business and use of the Services hereunder, in compliance with all applicable laws, including data privacy laws and regulations. If the data is inaccurate and requires additional work to use the Services, the Customer and Stellar may agree to contact for assistance from Stellar for mutually agreed upon development fees. Customer owns all right, title or interest in any and all Intellectual Property Rights in the Customer Data and Stellar is hereby granted a limited license to copy or access the Customer Data for the purposes of providing the Services under this Agreement, as well as anonymously aggregating such Customer Data for use by Stellar for its internal and/or external usage.

   Section 6.3 Use of System, Procedures, etc. Customer shall comply with all operating instructions for the System that are issued by Stellar from time to time and provided to Customer. Notwithstanding anything to the contrary in this Agreement, Customer shall be solely responsible for the supervision, management, and control of the access to and use of the System by or through Customer’s employees, agents, subcontractors and contractors, including, without limitation, implementing sufficient and reasonable procedures designed to (a) satisfy Customer’s own requirements for the security and accuracy of the input provided to the System, (b) verify reports and other output from Stellar within the required time frames, and (c) regulate use of, and safeguard against unauthorized use of, user identifications and passwords assigned to Customer’s employees, agents, subcontractors and contractors. With the exception of its Affiliates and Authorized Users, Customer agrees that, except as otherwise permitted by Stellar, Customer shall use the Services only for its own internal business purposes and shall not sell, resell, sublicense, or otherwise provide, directly or indirectly, any of the Services or any portion thereof to any other person or entity. Customer further acknowledges and agrees that nothing in this Agreement or otherwise shall serve to provide Customer with any proprietary right to the Products or Services or their underlying intellectual property, including but not limited to its code base, (collectively the “Stellar IP”) and all rights in the Stellar IP, except as specifically granted to Customer under this Agreement are reserved in full to Stellar. Customer further agrees that neither it nor its Authorized Users shall in any manner or to any extent reverse engineer the Stellar IP, nor shall Customer or its Authorized Users create derivative works based upon the Stellar IP or competing products during the Term.

   Section 6.4 Acceptable Use. Customer shall use the Product solely for its internal business purposes, in compliance with applicable law, and shall not: (i) resell, sublicense, lease, time-share, or otherwise make the Product available to any third party; (ii) send or store infringing or unlawful material; (iii) send or store viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs; (iv) use spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list or in violation of applicable laws; (v) transmit, or permit Customer’s employees, affiliates or contractors to transmit, through the Product any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind; (vi) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Product or the data contained therein; (vii) modify, copy, or create derivative works based on the Product; (viii) reverse engineer the Product; (ix) access the Product for the purpose of building a competitive product or Product or copying its features or user interface; (x) use the Product, or permit it to be used, for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Stellar’s prior written consent; or (xi) share passwords or otherwise grant access to the Service with any individual not a current employee of Customer, (xii) permit access to the Product by a competitor of Stellar. Customer is responsible for all activities conducted under its logins and for its users’ compliance with this Agreement. Customer shall instruct all users to safeguard login and password information and shall notify Stellar immediately if such login or password information has been compromised. 

   CUSTOMER, INCLUDING ITS END USERS, ARE STRICTLY PROHIBITED FROM TRANSMITTING OR STORING NON-PUBLIC PERSONAL INFORMATION OF ITS CUSTOMERS THROUGH, ON, OR IN CONJUNCTION WITH THE SERVICES THROUGH STELLAR’S PAYMENT PROCESSING PORTAL. VIOLATION OF THIS PROHIBITION SHALL REPRESENT A MATERIAL BREACH OF AGREEMENT AND, STELLAR SHALL BE ENTITLED TO IMMEDIATELY TERMINATE THIS AGREEMENT WITHOUT PENALTY, WITH OR WITHOUT NOTICE TO CUSTOMER.

   Section 6.5 Compliance with EULA. Customer shall ensure its users comply with the End User License Agreement (the “EULA”). Each user agrees to these policies by accessing the System and Stellar reserves the right to update the EULA at any time in its sole discretion without any prior notice to Customer.

   Section 6.6 Customer Roll-Out. Due to the allocation of Stellar Software resources necessary in order for it to be able to provide the Services hereunder, it shall be essential for Customer to roll-out implementation (and cooperate with Stellar Software’s efforts to implement the Services and take individual Customer locations “live”). The parties agree that time shall be of the essence with respect to Customers obligations under Article 6 of this Agreement. Customer further acknowledges that the pricing set forth in any Order Form is based upon Customer’s compliance with Article 6 of this Agreement, in general, and this Section 6.6, in particular. In the event that Customer fails to bring inventory and/or locations “live” in accordance with the agreed schedule, Stellar Software reserves the right, in its sole discretion, to suspend provision of Services under this Agreement until such time as the parties reach agreement on revised pricing (and/or as said standard pricing may be amended upon renewal of the term of this Agreement).

   Article 7 – CONFIDENTIALITY

   Section 7.1 Confidential Information. Each of the Parties hereto agrees to maintain the Confidential Information of the other Party in accordance with the following:

   1. Except as otherwise provided in this Agreement, Stellar agrees that it shall (i) protect the confidential and proprietary nature of the Confidential Information of Customer from disclosure to persons who are not employees, agents, subcontractors, or contractors of Stellar or Customer, (ii) treat the Confidential Information of Customer with at least the same concern and protective measures accorded any Confidential Information of Stellar but in no event less than reasonable care; and (iii) not disclose the Confidential Information of Customer to any third party (except as otherwise permitted by this Agreement or our privacy policy. For more information, please see our privacy policy as set forth here: https://boatrentalmanagement.com/privacy-policy/).
   2. Except as otherwise provided in this Agreement, Customer agrees that it shall (i) protect the confidential and proprietary nature of the Confidential Information of Stellar from disclosure to persons who are not employees, agents, or contractors of Stellar or Customer; (ii) treat the Confidential Information of Stellar with at least the same concern and protective measures accorded any Confidential Information of Customer but in no event less than reasonable care; and (iii) not, at any time during or after the Term, disclose the Confidential Information of Stellar, whether directly or indirectly, to any third party (except as otherwise permitted by this Agreement or required by law or regulation and then only after providing Stellar with such notice of, and opportunity to object to, such requirement as may be reasonable under the circumstances), or use the Confidential Information of Stellar for any purpose other than the proper and lawful performance of, and exercise of its rights under, this Agreement.
   3. Neither Party shall have an obligation of confidentiality with regard to any information insofar as the same: (i) was known to such Party prior to disclosure; (ii) is or becomes publicly available other than as a result of a breach of this Agreement or other duty of confidentiality; or (iii) is disclosed to such Party by a third party not subject to an obligation of confidentiality.

       

   Article 8 – TERMINATION AND RELATED MATTERS

   Section 8.1   Termination for Nonpayment.    If Customer defaults in the payment of any undisputed charges or other amounts due under this Agreement and fails to cure such default within ten (10) days after receiving written notice specifying such default, then Stellar may, at its option, terminate this Agreement, upon written notice thereof.

   Section 8.2 Termination for Cause. If either Party materially defaults in its performance under this Agreement (other than for nonpayment of amounts due to Stellar which is governed by Section 8.1), and fails to either substantially cure such default within thirty (30) days after receiving written notice specifying the default or, for those defaults  that cannot reasonably be cured within thirty (30) days, the defaulting party shall promptly commence curing such default and thereafter proceed with all due diligence to substantially cure the same, then the Party not in default may terminate this Agreement by giving the defaulting Party at least thirty (30) days’ prior written notice thereof, as of a date specified in such notice.

   Section 8.3   Termination for Insolvency.    Either Party may immediately terminate this Agreement by giving written notice to the other Party if the other Party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction which is not dismissed within 30 days, if the other Party makes an assignment for the benefit of creditors, or if a receiver, trustee or similar agent is appointed with respect to any property or business of either Party. Breakage Costs and other penalties will still apply in the event of Customer Insolvency.

   Section 8.4 Termination for Convenience. Unless otherwise agreed to in an Order Form or Statement of Work, either party may terminate this Agreement for convenience upon thirty (30) days prior written notice; subject to Liquidated Damages and/or Breakage Costs pursuant to Section 8.5.

   Section 8.5 Liquidated Damages; Breakage Costs. In the event that Customer shall terminate this Agreement prior to the expiration of the then-effective Term, unless said termination occurs as a result of a breach by Stellar of this Agreement, then in the Initial Term, Customer shall be responsible for paying Stellar liquidated damages in the amount of the remaining alternative fees as may be described in your Order Form which would otherwise be due between the Service Termination Date and the end of the Initial Term or subsequent Terms (the “Breakage Costs”); in any subsequent renewal Terms Customer shall be responsible for paying Stellar Breakage Costs in the amount of sixty-six percent (66%) of the remaining alternative fees which would otherwise be due during a one year term beginning on the Service Termination Date based on the current Annual Inventory Schedule. The Breakage Costs shall be due and payable by Customer within thirty (30) days of the effective date of termination. Customer and Stellar agree that these Breakage Costs are liquidated damages and are a reasonable estimation of the damages that Stellar will incur and shall not be considered a penalty. The foregoing liquidated damages are not intended to be nor shall be construed as Stellar’s exclusive remedy for any breach of this Agreement and shall not limit or otherwise preclude Stellar from seeking and obtaining such other remedies for such other breaches as may be available to it under the law.

    

   Article 9 – DISPUTE RESOLUTION, LIABILITY LIMITATIONS AND INDEMNITY

   Section 9.1 Disputes. In the event of any dispute, controversy, or claim between the Parties hereto arising from or relating to the subject of this Agreement (a “Dispute”), upon the written request of either Party, each of the Parties shall appoint a designated officer to meet and negotiate in good faith to resolve such Dispute. Formal proceedings for the arbitration of such Dispute in accordance with Section 9.2 may not be commenced until the earlier of (a) the expiration of thirty (30) days after the initial request for such negotiations, or (b) either of the designated officers concluding in good faith and notifying the other designated officer that amicable resolution through continued negotiation of the matter in issue does not appear likely.

    

2. Section 9.2   Arbitration.   Stellar and Customer stipulate and agree that if they are unable to resolve any Dispute as contemplated by Section 9.1, then such Dispute shall be resolved by final and binding arbitration by a panel of three (3) arbitrators in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect, to be held in Austin, Texas. Following notice of a Party’s election to require arbitration, each Party shall within thirty (30) days select and identify in writing to the other Party one (1) arbitrator, and those two (2) arbitrators shall within thirty (30) days thereafter select a third arbitrator.   If the two arbitrators are unable to agree on a third arbitrator within thirty (30) days, the AAA shall within thirty (30) days thereafter select such third arbitrator.

    

3. Discovery as permitted by, in accordance with, and governed by the Federal Rules of Civil Procedure and the Federal Rules of Evidence then in effect, shall be allowed in connection with arbitration to the extent consistent with the purpose of the arbitration and as allowed by the arbitrators. Judgment upon the award rendered in any arbitration may be entered in any court of competent jurisdiction, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of the state having jurisdiction may require or allow. During any arbitration proceedings, Stellar shall continue to provide Services, and Customer shall continue to make payments to Stellar, in accordance with this Agreement, provided, however, that in the event of termination of this Agreement due to non-payment by Customer of fees incurred hereunder, Stellar shall not be required to continue to provide the Services.   The fact that arbitration is or may be allowed shall not impair the exercise of any termination rights under this Agreement.

    

4. Section 9.3 Warranties; Limitation of Liability.  Any warranties and liabilities with respect to the Services and goods provided hereunder shall be limited as follows:

   1. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, STELLAR MAKES NO WARRANTIES, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE OPERATION, CAPACITY, SPEED, FUNCTIONALITY, QUALIFICATIONS, OR CAPABILITIES OF THE SYSTEM OR ANY SERVICES, GOODS, OR PERSONNEL RESOURCES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.  THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND STELLAR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED. CUSTOMER ACKNOWLEDGES THAT STELLAR DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM STELLAR OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
   2.  THE AGGREGATE AMOUNT OF ANY LIABILITY OF STELLAR, ITS OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, AFFILIATES, PARTNERS, SUBCONTRACTORS AND CONTRACTORS, FOR ONE OR MORE CLAIMS ARISING FROM OR RELATING TO ANY DEFICIENCIES WITH RESPECT TO THIS AGREEMENT, SHALL NOT EXCEED, THE FEES ACTUALLY PAID BY CUSTOMER IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO CUSTOMER’S CLAIM.
   3. NEITHER PARTY HERETO SHALL BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES OF ANY PERSON ARISING OUT OF THE BREACH OF THIS AGREEMENT BY SUCH PARTY.

5. Section 9.4 Indemnity.

   1. Stellar will indemnify, defend and hold harmless Customer Indemnified Parties against any claim that the Products or Services infringe a patent, trademark, copyright or other Intellectual Property Right, and will pay all costs, damages and attorneys’ fees as a result of a determination or claim of such infringement. In addition to the indemnification obligations above, should Stellar believe that the Products or Services may become subject to a claim of infringement, Stellar will (i) replace such Products or Services with products and /or services providing the same functionality, (ii) modify such Products or Services to make it non-infringing, or (iii) obtain the right for Customer and Authorized Users to continue to use such Products and Services.  Should Stellar, in its sole discretion, determine that the foregoing options are not commercially reasonable, then Stellar may terminate this Agreement.
   2. Customer agrees to defend, indemnify and hold harmless Stellar from any and all claims by third parties arising from any data breach resulting from or related to its or its Customers’ improper use of the Products, including but not limited to: (1) breaches resulting from its or its end users’ (i) failure to make use of strong passwords, (ii) personnel sharing accounts, and/or (iii) personnel saving their password in another account, (iv) compromises of Customer’s email systems of accounts, and/or (2) Customer recording sensitive data, including but not limited to credit card numbers in insecure fields within the Products. Customer further agrees to defend, indemnify and hold harmless Stellar from any and all claims by third parties arising from, out of, or in relation to any bodily injury, death, or property damage to or cause by Franchise’s or any of Customer’s customers, including but not limited to any such claims arising from the use of Reservable Assets, including watercraft owned, leased, or otherwise managed or maintained by Customer.

6.  

7.  Section 9.5 Specific Disclaimers.

8. 1. Stellar shall not be responsible for verifying the age, identity, or capacity of those persons to whom Customer reserves Reservable Assets through the Stellar platform or in connection with Customer’s use of the Paperless Check-In Service. Customer takes sole responsibility (and hereby agrees to indemnify Stellar for any liability in connection with) the verification of identity of its customers, the capacity of those customers to enter into agreements with Customer, the age of said customers, and/or the ability of said customers to safely or legally operate, use, or occupy the Reservable Assets.
   2. Stellar bears no and assumes no responsibility for and shall not be liable in any fashion, manner, or to any degree for (and Customer hereby agrees to indemnify Stellar for any liability in connection with) the operation, use, or occupancy of Reservable Assets reserved through the Stellar platform, including but not limited to reservations carried out using the Paperless Check-In Service. Customer bears all responsibility for such reservations and/or the attendant operations, use, or occupancy of said Reservable Assets.
   3. Customer is solely responsible for the download and storage of electronic contracts, photographs and any other information as required by law or insurance, whether originating from the Services or otherwise. Customer’s access to the aforementioned via the System is limited to that of convenience without any guarantees or warranties, express or implied.
   4. Availability of Services. The parties acknowledge that the software Services offered hereunder are computer network-based services which may be subject to outages and delay occurrences. As such, Stellar Software does not guarantee continuous or uninterrupted access to the Services. Customer further acknowledges that access to the Services may be restricted for maintenance. Stellar Software will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, Stellar Software will not be liable for any interruption, outage, or failure to provide the Services.
   5. Customer Responsibility for Maintenance of Records:
      
      1. Customer shall be solely liable for maintaining and preserving all records and documentation regarding its rental of Reservable Assets, following the “daily reconciliation of that day’s transactions” carried out in conjunction with the Stellar platform and/or the Paperless Check-In Service. The “daily reconciliation of that day’s transactions” shall include the customer downloading all data from the system including customer information, booking information and digital contracts from the paperless application.
      2. Stellar Software’s offering of any services, either as part of or separate from the Paperless Check-In Service, intended to preserve transactions of rental transactions or payment processing transactions shall not render Stellar Software responsible for or liable for the maintenance of said records following the daily transaction reconciliation process, and all such responsibility shall remain solely and exclusively with Customer.

          

          

   Article 10 – MISCELLANEOUS

   Section 10.1   Binding Nature and Assignment.   This Agreement shall be binding on the Parties and their respective successors and assigns. Customer may not assign this Agreement or any rights hereunder, or delegate its obligations hereunder, in whole or in part, unless it first obtains the prior written consent of Stellar.   Notwithstanding the above, consent from Stellar shall not be required if this Agreement is assigned in connection with a sale of all or substantially all of the assets of Customer or a merger unless such sale is to a competitor of Stellar or its affiliates. Any attempted assignment or transfer in violation of the foregoing shall be null and void. 

   Section 10.2 Hiring of Employees. During the term of this Agreement and for a period of twenty-four (24) months thereafter, Customer shall not, except if in response to a general solicitation, without the prior written consent of Stellar, offer employment or contract work to or employ any person employed by Stellar or with whom the other Stellar has contracted as an independent contractor then or within the preceding twenty-four (24) months, if the person was involved in providing Services under this Agreement.

   Section 10.3 Consents. Each Party agrees that when approvals or consents are required pursuant to this Agreement, the Party entitled to provide such approval or consent shall not unreasonably withhold it and shall cooperate in helping the other Party obtain it when reasonable.

   Section 10.4 Notices. Any notice under this Agreement shall be deemed to be given when delivered by hand, via electronic mail to an electronic mail address specifically provided by the Party for the purpose of official notice under this Agreement, or when mailed by United States mail, first-class postage prepaid, and addressed to the recipient Party to the attention of its designated point of contact under the terms of this Agreement in the case of Customer and to the attention of the President in the case of Stellar. Either Party may from time to time change its address for notification purposes by giving to the other Party prior written notice of the new address and the date on which it will become effective.

   Section 10.5 Relationship of Parties. The Parties hereto are independent contractors and this Agreement does not constitute and shall not be construed as constituting a partnership, joint venture, principal/agency relationship, master/servant relationship, or employer/employee relationship between the Parties, nor any of their personnel, agents, representatives or Subcontractors, and/or shall be construed as an employee, agent, servant, representative, partner or joint venturer of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. Both Parties shall at all times remain as independent entities and are not and shall not represent themselves, their personnel, agents, representatives or Subcontractors to be agents or employees of the other unless a specific written authorization to do so has been provided in advance. Neither Party shall have the authority to enter into, incur, make, change, enlarge or modify any contract, liability or agreement, obligation, representation, guarantee, warranty or commitment of any kind on behalf of the other, unless a specific written authorization to do so has been provided in advance.

   Section 10.6 Waiver. A waiver by either of the Parties of any of the covenants, conditions, or agreements to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant, condition, or agreement contained in this Agreement. 

   Section 10.7 Entire Agreement; Amendments. This Agreement and all Order Forms and Statements of Work constitute the entire agreement between Stellar and Customer with respect to the subject matter of this Agreement. The Order Form shall govern in the event of any conflict between an Order From and this Agreement. Stellar may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting an on-line notice.  You can review the most current version of this TOS at any time at boatrentalmanagement.com/terms.

   Section 10.8 Survival. Regardless of the circumstances of termination or expiration of this Agreement, Order Form, or a Statement of Work issued hereunder, in whole or in part, any provision which by its nature extends beyond such termination or expiration will survive according to their terms.

   Section 10.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, exclusive of its choice-of-law rules, and the Parties further agree to the jurisdiction and venue of the state and Federal courts located in Austin, Texas regarding any claim or action between the Parties related to this Agreement or the performance of obligations or Services hereunder.

   Section 10.10 No Third-Party Beneficiaries. This Agreement shall be for the benefit of the Parties hereto and none of the provisions of this Agreement shall be for the benefit of or enforceable by any third party.

   Section 10.11 Compliance with Laws. Customer agrees that its use of the Products and Services shall comply with all applicable laws and regulations.

    

   Stellar End User License Agreement (“EULA”) 

   The software provided to Customer on a software as a service basis (the “SaaS Product”) by Stellar Software LLC (“Licensor”) under the attached SaaS License and Service Agreement (the “Agreement”) subject to the following terms and conditions:

   1. COVERED SOFTWARE.Licensor will provide the following SaaS Product as part of the Scheduled Services contemplated in the Terms of Service (“ToS”)  Stellar Reservation Management Software
   2. USE

   2.1. Use Restrictions. Customer agrees it will use the Service only in its own business and not directly or indirectly for the use or benefit of anyone other than Customer or in connection with any other purchasing card, and only pursuant to the scope of the grant of the license set forth herein. Customer may not use the Service for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be contacted or in violation of applicable laws. Customer agrees not to transmit, or permit Customer’s employees to transmit, through the Service any unlawful, harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. Customer agrees to only use the Service for purposes authorized herein, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws and those related to data privacy and the transmission of technical or personal data. Unlawful activities may include (without limitation) storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm.

   2.2. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD LICENSOR HARMLESS AGAINST ANY CLAIM OR ACTION THAT ARISES FROM CUSTOMER’S USE OF THE SERVICE IN AN UNLAWFUL MANNER OR IN ANY MANNER INCONSISTENT WITH THE RESTRICTIONS AND POLICIES STATED HEREIN.

   3. SERVICE ACCESS AND AVAILABILITY.

   3.1. Customer shall be solely responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the SaaS Product, and for paying all third-party access charges incurred while using the SaaS Product. Licensor warrants that the Service will have 98% Service Availability and uptime reliability during the hours of 6:01 a.m. through 11:59 p.m. Eastern Time, excluding (a) regularly scheduled maintenance periods, during the hours of 1:00 a.m. through 6:00 a.m. Eastern Time on Sundays, or which are announced to Customer at least seventy-two (72) hours in advance; (b) scheduled down time for security related upgrades or changes which are announced to Customer at least seventy-two (72) hours in advance, (subsections (a) and (b) hereof being collectively, “Scheduled Down Time”); or (c) service unavailability for reasons beyond the reasonable control of Licensor such as, but not limited to, failure of Customer’s systems, failure of Customer to obtain and maintain all computer hardware, software and communications equipment needed to access the Service or to pay for third-party access charges incurred while using the Service, failure of Internet availability, acts of God or acts of terrorism (collectively the “Service Level”).

   4. SECURITY. Customer shall notify Licensor immediately of any known or suspected unauthorized use of the Service (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by Customer) or any other breach of security. Licensor will not be liable for any loss or damage arising from Customer’s failure to comply with these requirements.
   5. ACCURATE CUSTOMER INFORMATION. Customer agrees to provide Licensor with accurate contact information, including legal name, business name (if applicable), street address, telephone number, and Email address. Customer also agrees to notify Licensor of any changes to this information within thirty (30) days.
   6. HOURS OF OPERATION. The SaaS Product shall operate from 12:00 a.m. to 11:59 p.m., except for (a) regularly scheduled SaaS Product Maintenance (which will be undertaken at agreed times which minimize the adverse impact on Customer’s operations) and during any creation of Backup Files, (b) SaaS Product Maintenance required as a result of matters beyond Licensor’s reasonable control, (c) SaaS Product capacity shortfalls and events beyond Licensor’s control, as provided in Section 4.5 or Section 4.6 of the SLSA, (d) Customer’s failure to perform its obligations under this Agreement, or (e) special production jobs, testing procedures, or other services that are given priority at the request of Customer. 
   7. SUPPORT.

   7.1. Support Availability and Support Costs.

   7.1.1. Implementation Costs, as outlined in Schedule B-2 to the SLSA, include initial implementation (initial support, building and training) for Customer’s staff for each location.

   7.1.2. Ongoing Support, after the initial implementation i additional Tier 1 support time (delivered through the Tier 1 support process set forth in this Section 7 of this Addendum) are provided at no cost.  Development or production support may be purchased by Customer in bundles of twelve (12) support hours per month, at the costs set forth in Schedule B-2 to the SLSA on a per month per twelve-hour bundle basis. In the event that all of the hours in a given bundle are not used within the calendar month in which they are purchased, any non-utilized hours shall not carry over to the subsequent month and they shall expire following the last day of the calendar-month in which they were purchased.

   7.2. Tier 1 Support Requests. For Tier 1  support requests, if received between the hours of 9 AM to 5 PM Eastern Time, a response shall be made by Licensor based on the Priority Level of the support issue. Priority Levels and Response and Escalation Times are as follows:

   7.2.1. Priority 1 – Emergency Issue. Service Unavailable (All Users and functions). Response Time – 1 Hour. Escalation Time – 1 Hour.

   7.2.2. Priority 2 – Significant Service Impact (Large number of users and functions affected). Response Time – 3 Hours. Escalation Time – 1 Hour.

   7.2.3. Priority 3 – Limited Service Impact (Limited number of users and functions affected, business can continue). Response Time – 4 hours. Escalation Time – 2 hours.

   7.2.4. Priority 4 – Small Service Impact (One user affected, business can continue). Response Time – 24 Hours. Escalation Time – 4 Hours

   7.3. Licensor reserves the right, in its sole discretion, to classify the Priority Level of Support requests for the purpose of adhering to the SLA’s.

   7.4. Licensor shall assign an implementation consultant and client success manager who shall be responsible for directing all Licensor activities affecting the provision of Services (the “Client Experience team”). The Client Experience team and/or other Licensor-trained, qualified personnel shall provide on-going support. Incident training and reporting shall be provided as mutually agreed to.

   7.5. Customer agrees to provide Licensor with all relevant information about matters relating to their requests for Tier 1 Support and to provide appropriate telephone and computer systems and communications facilities to its qualified employees seeking Tier 1 Support. Customer shall cooperate with Licensor in creating and maintaining a current list of qualified Customer employees authorized to use Tier 1 Support.

   7.6. Tier 1 Support shall not include support for: (i) matters not related to the SaaS Product; (ii) unauthorized modifications made to the SaaS Product by parties other than Licensor or its subcontractors; (iii) matters caused by the failure to follow Licensor’s instructions; (iv) Customer’s failure to comply with its obligations regarding Tier 1 Support; (via use of the SaaS Product for purposes other than those contemplated by this Agreement; (vi) versions or configurations of any Applications Program which is not supported by the respective licensor thereof. Anything in this Agreement to the contrary notwithstanding, in the event that Licensor renders to Customer any technical telephone support which is excluded from Tier 1 Support (either by this paragraph or by Section 1.1), then such technical telephone support shall be billed as Additional Services upon Customer’s consent thereto, which consent shall not be unreasonably withheld.

   8. SUBCONTRACTING; INDEPENDENT CONTRACTING RIGHTS. Stellar Software shall be entitled, subject to the other provisions of this Section, to permit employees, agents, subcontractors and contractors of Stellar Software or Customer to access all or any portion of the SaaS Product and data pertaining to the SaaS Product, where applicable, for the purpose of allowing such employees, agents, subcontractors and contractors to provide services to or on behalf of Licensor or Customer. In connection therewith, each party shall be solely responsible for any access by such party’s employees, agents, subcontractors and contractors to the SaaS Product and data pertaining to the Application Program. 
   9. Data.

   9.1. Definitions:

   9.1.1. “NPPI” means: Non-public, personally identifiable information related to Customer’s customers, Customer’s employees or other third parties (“Applicable Individuals“), that has been provided to Customer by such persons or their representatives and that has not otherwise been disclosed to the public. NPPI includes any form of non-public personally identifiable information that consists of one or more of the following elements of information about an Applicable Individual:

   9.1.1.1. Social security number, social insurance number, military identification number, or tribal identification card number;

   9.1.1.2. Passport, visa, alien registration, or other identification number assigned for immigration purposes;

   9.1.1.3. Driver’s license number, national identification card number, state or provincial identification card number, or other government-issued identification number; or

   9.1.1.4. Account number, card number, routing number, passcode, or personal identification number (“PIN”) for a checking or savings account, investment account, personal or company-sponsored credit or debit card, or any other financial account.

   9.1.2. “Process” means to collect, record, organize, store, adapt, alter, retrieve, consult, use, disclose by transmission or otherwise, disseminate or otherwise make available, align or combine, block, delete, erase, or destroy.

   9.2. Handling of Data.

   9.2.1. With the exception of Driver’s License numbers, Customer shall be strictly prohibited from transmitting, storing or Processing NPPI through, on, or in conjunction with the SaaS Product. Violation of this Section 9.2.1 shall represent a material breach of this Addendum and the SLSA and, in the event of such a violation of this Section 9.2.1, Licensor shall be entitled to immediately terminate this agreement without penalty, with or without notice to Customer.

   9.2.2. All data pertaining to the SaaS Product processed by or stored in the SaaS Product shall be kept confidential and shall not be disclosed to anyone except employees, agents, subcontractors, and contractors of Stellar Software and Customer who have a “need to know” of the same in order to further or facilitate the performance of the Services and who are legally bound to respect the confidentiality thereof.

   9.2.3. All such data shall be and remain the property of Customer and Stellar Software shall, at Customer’s request and expense (including, without limitation, expenses for Customer travel and lodging, applicable media and freight), provide Customer and Customer’s employees, agents, subcontractors and contractors with reasonable access to any such data.

   9.2.4. Promptly after the termination or expiration of this Addendum and/or the SLSA and the payment to Licensor of all undisputed sums due and owing, Licensor will, at Customer’s request and expense, return to Customer all of such data in the format and media reasonably requested by Customer.

   9.2.5. Licensor shall exercise reasonable care for the protection of such data and shall maintain reasonable data-integrity safeguards against the deletion or alteration of such data.

   9.2.6. Licensor shall have the authority to engage in such testing of the security and stability of its facilities and system as Licensor may deem reasonable or appropriate. In addition, Licensor shall be permitted to engage in broad statistical analysis of anonymized data for the purposes of internal system analysis and for creating and distributing case studies based upon the anonymized data, and nothing in this Addendum is intended to prohibit or limit such activity.

   9.3. “Data Privacy” and “NPPI”:

   9.3.1. Licensor will Process NPPI only on the instructions of Customer. Customer hereby instructs Licensor to Process NPPI solely as necessary to perform Licensor’s obligations under this Addendum and/or the SLSA to provide the Services and for no other purpose whatsoever.

   9.3.2. Licensor will not create or maintain data which is derivative of NPPI except for the sole purpose of performing its obligations under this Addendum and/or the SLSA.

   9.3.3. Licensor will not transfer NPPI outside the United States without the prior written approval of Customer, in its sole discretion.

   9.3.4. To the extent that Licensor collects or receives any NPPI relating to residents of the European Union in connection with its performance of Services, Licensor shall provide at least the same level of privacy protection for such NPPI as is required by the relevant principles of the U.S. Safe Harbor program established between the U.S. Department of Commerce and the European Commission or such successor agreements or programs as may replace said Safe Harbor program.