Stellar IMS End User License Agreement
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 SLSA:
1.1. Stellar IMS Base Software Platform Version 3
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 included in such list 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").
3.2. SERVICE CREDIT.
3.2.1. If Licensor 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 fifteen percent (15%) of any fees owing by it to Licensor under Section 3 above for the month in which Licensor fails to meet the Service Level.
3.2.2. For each additional and consecutive month in which Licensor fails to meet the Service Level, Customer will, as its sole remedy for such failure, be entitled to a Service Credit of thirty percent (30%) of any fees owing by it to Licensor under Section 3 above for each additional and consecutive month in which Licensor fails to meet the Service Level.
3.2.3. In the event Licensor fails to meet the Service Level, for any three (3) months during a rolling twelve (12) month period, as its sole remedy for such failure, Customer will be entitled to a Service Credit of thirty percent (30%) of any fees owing by it to Licensor under Section 3 above for each additional month within the twelve (12) month period noted above beyond the three (3) months noted above, in which Licensor fails to meet the Service Level or Customer will, as its sole remedy for such failure, have the right to immediately terminate this Agreement on written notice to Licensor; provided, however, for clarity, Customer will not be entitled to a Service Credit in excess of thirty percent (30%) of the fees owing by it under Section 3 above for any month in which Stellar Software fails to meet 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 two (2) hours of support and training for Customer's staff per location.
7.1.2. Ongoing Support, after the two (2) hours per location as a part of the initial implementation included in the Implementation Costs have been expended, additional support hours (delivered through the Help Desk process set forth in this Section 7 of this Addendum) 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. Help Desk Support Requests. For Help Desk Support requests, whenever received between the hours of 9 AM to 5 PM Eastern Standard 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 account manager who shall be responsible for directing all Licensor activities affecting the provision of Services (the "Licensor Account Manager"). The Stellar Software Account Manager and/or Licensor-trained, qualified personnel shall provide Help Desk Support. Incident tracking 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 Help Desk Support and to provide appropriate telephone and computer systems and communications facilities to its qualified employees seeking Help Desk Support. Customer shall cooperate with Licensor in creating and maintaining a current list of qualified Customer employees authorized to use Help Desk Support. The parties shall agree on a reasonable number of qualified employees entitled to use Help Desk Support at any time.
7.6. Help Desk 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 Help Desk Support; (vi 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 Help Desk 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 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.