How top brands are using a new technology to transform their sports sponsorships. Learn more
For Performance Marketing Teams
Fan Engagement
Understand and activate your entire fan universe in one customer data platform.
Lead Scoring & Segmentation
Identify and segment fans most likely to purchase.
For Data Teams
Data Management
Bring disconnected data sources together in the StellarAlgo Platform.
Integrations
150+ integrations unlock fan data from multiple sources and destinations.
Emerging Leagues
Live Events
Major Leagues
Media and Gaming
Multi-Property
About Us
We built the world’s largest fan database to help properties and partners succeed.
Culture
Our team thrives on challenges and growth.
News
Get the latest updates from StellarAlgo.
Leadership
Meet our team of sports and analytics experts.
Careers
Join our team of all-stars.
STELLARALGO CORP. (“STELLARALGO”) PROVIDES SOFTWARE AS A SERVICE OFFERINGS AS DESCRIBED ON STELLARALGO’S WEBSITE STELLARALGO.COM AND IN STELLARALGO’S ORDER FORM (AS DEFINED BELOW).
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMERS’ (AS DEFINED BELOW) ACQUISITION AND USE OF STELLARALGO’S SERVICES. CAPITALIZED TERMS HAVE THE MEANINGS SET FORTH IN THIS SUBSCRIPTION AGREEMENT.
BY ACCEPTING THIS AGREEMENT, WHETHER BY (1) CLICKING A BOX ON A WEBPAGE OR OTHER ONLINE FORM INDICATING ACCEPTANCE OF THIS AGREEMENT, (2) EXECUTING AN ORDER THAT INCORPORATES THIS AGREEMENT BY REFERENCE, OR (3) USING THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into an Order Form.
“Customer Data” means all electronic data or information submitted by Customer to the Service;
“Delivery Services” means any delivery services to be provided by StellarAlgo to Customer for the delivery and configuration of the Service expressly set out in an Order Form;
“Documentation” means any and all written or electronic documentation, including user manuals and/or reference materials that StellarAlgo generally makes available to Service Customers, as updated by StellarAlgo from time to time;
“Fees” means the fees as specified in the Order Form payable by Customer to StellarAlgo for the right to receive access to the Services subscribed for under an Order Form;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Order Form” means a written document executed by the parties that specifies the Service, Service subscription period, Fees, Delivery Services and any other additional commercial terms agreed by the parties, as amended from time to time;
“Personal Information” means any information about an identifiable individual;
“Service” means StellarAlgo’s proprietary Software Products, Productized & Fully Managed Pull Integrations, Productized & Fully Managed Data Appends, and Productized & Fully Managed Push Integrations/Destinations and such other offerings as StellarAlgo may make generally available, in each case as more particularly described in the Order Form and Documentation;
“Term” has the meaning ascribed to that term in Section 6.1; and
“User” means an individual or entity who is authorized by Customer to use the Service, and who has been supplied a user account and password by Customer (or by StellarAlgo at Customer’s request) for the Service.
2.1. Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement and payment of the applicable fees, StellarAlgo shall make the Service subscribed to under any Order Form(s) available to Customer during the Term in accordance with the provisions of the applicable Order Form(s) for the purpose of allowing Customer and Users to use such Services in the internal operation of Customer’s business. Customer shall not use the Service for any purposes other than the internal operation of Customer’s Business.
2.2. Delivery Services. StellarAlgo will provide Delivery Services (if any) to Customer in accordance with the terms of this Agreement and the applicable Order Form. StellarAlgo shall perform such Delivery Services in a reasonable and workmanlike manner. Customer acknowledges and agrees that the performance of Delivery Services is heavily dependent on cooperation from Customer. Accordingly, in addition to any specific responsibilities set out in the Order Form, Customer shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by StellarAlgo, to allow StellarAlgo to perform Delivery Services; (ii) carry out reviews and respond to requests for approval and information on a timely basis; and (iii) make available to StellarAlgo such of its personnel that are familiar with Customer’s requirements. Customer shall designate a project management contact for the purposes of communication with StellarAlgo. The project management contact shall be the primary point of contact for Customer with StellarAlgo for matters relating to the provision of Delivery Services.
2.3. Affiliates. Customer and Customer Affiliates may use the Service subject to the terms and conditions of this Agreement, including any service restrictions on the Order Form. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
3.1. StellarAlgo Responsibilities. StellarAlgo shall: (i) provide the Service in accordance with the terms of the Order Form(s); (ii) make the Services available and provide support to Customer’s Users in accordance with StellarAlgo’s Service Level Addendum set out at Service Level Objectives or as otherwise provided for in the applicable Order.
3.2. Protection of Customer Data. StellarAlgo will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). StellarAlgo’s obligations under this section are subject to section 3.3 (Customer Responsibilities) and section 3.4 (Third Party Products and Services). The terms of the data processing addendum at Privacy & Security (“DPA”) are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by StellarAlgo, the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and an applicable Affiliate’s execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, StellarAlgo will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, StellarAlgo will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless such action is legally prohibited.
3.3. Customer Responsibilities. Customer is responsible for all activities that occur in User accounts, for Users’ compliance with this Agreement, and for any access or usage of the Services by Customer. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and ensuring that is has the right to process the Customer Data through the Service; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service. Where Customer or any of its users’ access (either directly or through any interfaces, APIs, queries or other automated processes created by Customer) any databases or similar hosted by StellarAlgo on behalf of Customer, then Customer is solely responsible for any access to or disclosure, modification or deletion of Customer Data resulting (whether directly or indirectly) from such Customer access.
3.4. Third Party Products and Services. StellarAlgo may allow Customer to integrate or connect third-party products or services with the Services (“Third Party Services”). Any acquisition by Customer of Third Party Services, any exchange of data between Customer and any Third Party Services provider, product or service and any risk or security incident arising due to any access or credentials provided through any Third Party Services integration is solely between Customer and the applicable Third Party Services provider. StellarAlgo does not warrant or support Third Party Services. StellarAlgo is not responsible for any access to or disclosure, modification or deletion of Customer Data resulting from access by such Third Party Services or its provider. The Services may contain features designed to interoperate with Third Party Services. StellarAlgo cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Services ceases to make the Third Party Services available for interoperation with the corresponding Service features in a manner acceptable to StellarAlgo.
3.5. Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.6. Audit Rights. StellarAlgo shall have the right to use the capabilities of the Service (limited to the StellarAlgo’s systems activity, data and Customer Data processed by the Service), to confirm Customer’s usage of the Service and Customer’s compliance with this Agreement.
4.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including StellarAlgo pricing and other terms reflected in all Order Forms hereunder), the Customer Data, non-public aspects of the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
4.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Confidential Information of StellarAlgo includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes Customer Data. The Receiving Party agrees: (i) to use at least the same degree of care to protect such Confidential Information as it employs to protect its own confidential information of a similar nature but in no event less than a reasonable standard of care consistent with accepted industry practices, and (ii) not to use (except in performance or use of the Service or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party and not subject to an obligation of confidence of any kind, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party if and to the extent it is required to be disclosed by law, provided that the Receiving Party gives reasonable prior notice of such compelled disclosure (except where prohibited by law from doing so).
4.3. Proprietary Rights. StellarAlgo shall own and retain all right, title and interest in and to (i) the Service and or any software, documentation or data (excluding Customer Data) related to the Service and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Delivery Services or support, and (iii) all intellectual property rights related to any of the foregoing. For greater certainty, unless otherwise specified in an Order Form, StellarAlgo shall own all intellectual property rights in any deliverables created as part of any Delivery Services. No rights or licenses are granted to Customer except as expressly set forth herein.
4.4. Customer Data. Customer shall own and retain its rights, title and interest in and to the Customer Data. Customer hereby grants StellarAlgo and its Affiliates (i) a royalty-free, worldwide, non-exclusive, non-transferable (except as otherwise provided in this Agreement), irrevocable, license to the Customer Data during the Term to the extent required for StellarAlgo to perform its obligations pursuant to this Agreement, and (ii) a perpetual, non-exclusive, royalty-free, worldwide unrestricted, irrevocable license to any suggestions, enhancement requests, recommendations or other feedback provided by the Customer or its users relating to the operation of the Service.
4.5. Machine Learning. Notwithstanding anything to the contrary, during the Term, StellarAlgo shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation: Customer Data and data derived therefrom; Customer’s inputs, selections, actions, training and interactions in relation to the Service and Software (the “Collected Data”); and anonymized and de-identified machine learning models, learned elements, biases, attributes, attribute transformations, weights and other anonymized and de-identified data or works derived from the Customer Data or Collected Data (the “Learned Elements”). StellarAlgo shall be the exclusive owner of all intellectual property rights in such Collected Data and Learned Elements and will be free to use Collected Data and Learned Elements to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other StellarAlgo offerings, provided that the Collected Data and Learned Elements do not contain any Confidential Information of Customer or identify Customer or any Personal Information.
4.6. Restrictions. Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); (ii) modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by StellarAlgo or authorized within the Service); (iii) use any components of the Service outside of the Service; (iv) license, sell, lease, transfer, assign, distribute or otherwise use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; (v) access or use the Service for purposes of building a competitive offering; (vi) attempt to gain unauthorized access to the Service or otherwise interfere with or disrupt the Service; or (vii) remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, StellarAlgo hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Service.
4.7. Remedy. In the event of any loss or corruption of Customer Data during the Term, StellarAlgo shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by StellarAlgo in accordance with StellarAlgo’s archival procedures. StellarAlgo shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by any third party. STELLARALGO’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 4.7 SHALL CONSTITUTE STELLARALGO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
4.8. Data Breach. In the event of actual or suspected unauthorized access to, loss or theft of any Customer Data comprising Personal Information in the power, possession or control of StellarAlgo (“Data Breach”), StellarAlgo agrees that it shall: (i) take all reasonably necessary steps to contain the Data Breach; (ii) conduct an investigation into the cause of the Data Breach and the types of Personal Information that may have been compromised; (iii) promptly inform Customer of all information gathered in accordance with this section, continue to keep Customer informed of any new information revealed in the investigation, and keep all records relating to the investigation and Data Breach; and (iv) otherwise provide any reasonable assistance to Customer to allow Customer to comply with any legal or regulatory obligations in respect of the Data Breach.
5.1. Fees. In consideration for the receipt of the Service, Customer shall pay to StellarAlgo the Fees specified in the Order Form. All amounts are payable in US dollars, unless otherwise stated.
5.2. Invoicing & Payment. Fees for the Service will be invoiced on an annual basis in advance unless otherwise specified in the Order Form. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. Payment is to be made by one of the following direct payment methods, in order of preference: (1) StellarAlgo’s ACH system (through a completed PAD form); (2) Visa or Mastercard (this payment method incurs a 3% admin fee); (3) the Customer’s own ACH payment system, if applicable; (4) Wire payment. Payment of invoices by check is not considered a method of direct payment. Customer is responsible for maintaining complete and accurate billing and contact information with StellarAlgo.
5.3. Overdue Payments. Any payment not received from Customer by the due date may accrue, at StellarAlgo’s discretion, late charges at the rate of 1.5% per month on any outstanding balance (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all expenses of collection.
5.4. Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, StellarAlgo reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5.5. Taxes. Unless otherwise stated, StellarAlgo’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement, excluding taxes based on StellarAlgo’s net income or property. If StellarAlgo has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides StellarAlgo with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.1. Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated (“Term”).
6.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at StellarAlgo’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
6.3. Termination. This Agreement and/or any Order Form, if applicable, may be terminated for cause by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party. Upon any termination of this Agreement or applicable Order Form, all rights licensed and obligations required thereunder shall immediately cease provided that Customer shall pay to StellarAlgo any undisputed amounts accrued or outstanding prior to the date of termination. For thirty (30) days following the termination of this Agreement, Customer will have access to the Service solely for the purpose of downloading the Customer Data. Following such period: (i) Customer will lose all access to the Service and any portions thereof including, but not limited to, any associated Customer Data; and (ii) StellarAlgo shall destroy all Customer Data in the possession of StellarAlgo. StellarAlgo will not be responsible to Customer or any third parties for any damages that may result or arise out of termination or suspension of the Service.
6.4. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification, limitations of liability, and the General Provisions in Section 10.
7. WARRANTY AND DISCLAIMER
7.1. Mutual Warranties. Each party represents and warrants that it has all necessary corporate power and the necessary authority to enter into this Agreement and that entering into this Agreement will not cause it to be in breach of any agreement with any other third party.
7.2. StellarAlgo Warranties. StellarAlgo warrants that during an applicable subscription term (a) StellarAlgo will not materially decrease the overall security of the Services, and (b) the Services will perform materially in accordance with the applicable Order. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
7.3. Disclaimer. STELLARALGO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE AND DELIVERY SERVICES ARE PROVIDED “AS IS” AND STELLARALGO MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4. Customer Data Warranties. Customer represents and warrants that Customer owns or has sufficient legal right to the intellectual property and other rights in Customer Data and that Customer Data, including any use of Personal Information by StellarAlgo, as described in this Agreement, does not violate applicable law or the rights of any third party.
8.1. Indemnification by StellarAlgo. StellarAlgo shall indemnify and hold Customer harmless from any damages, costs, expenses and settlements actually awarded to third parties by a court of competent jurisdiction resulting from infringement by the Service of any United States or Canadian patent or any copyright or misappropriation of any trade secret (an “IP Claim”). As conditions for the defense and indemnification to be provided by StellarAlgo, Customer shall: (i) provide StellarAlgo with prompt written notice of any IP Claim and copies of relevant documentation regarding any IP Claim for which indemnification may be sought; (ii) give StellarAlgo sole control of the defense and settlement of such IP Claim; (iii) cooperate fully with StellarAlgo, at StellarAlgo’s expense, in the defense or settlement of such IP Claim; and (iv) not settle any IP Claims or admit liability in respect to any IP Claims. This obligation shall survive the termination or expiration of this Agreement and/or your use of the Service. StellarAlgo will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (a) not supplied by StellarAlgo, (b) made in whole or in part in accordance with Customer specifications, (c) that are modified after delivery by StellarAlgo, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (f) relating to the Customer Data itself, or (g) where Customer’s use of the Service is not strictly in accordance with this Agreement. THIS FOREGOING SECTION CONSTITUTES STELLARALGO’S ENTIRE LIABILITY IN RESPECT OF ANY IP CLAIM.
8.2. Mitigation. If an IP Claim has occurred, or in StellarAlgo’s opinion is likely to occur, StellarAlgo may, at its election and expense, either obtain for Customer the right to continue using the applicable Service or replace it with a comparable Service or modify the Service so that it becomes non-infringing. If neither of the foregoing alternatives is reasonably available, Customer agrees to discontinue use of the applicable portion of the Service, and may in its sole discretion terminate the Agreement upon written notice to StellarAlgo and receive a pro-rata refund of StellarAlgo Service Fees that were paid in advance, if any, in respect to time periods after the date of any such termination.
8.3. Exclusions. The obligations in Sections 8.1and 8.2 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by StellarAlgo with other products, software or services not provided by StellarAlgo; (ii) any IP Claim related to any Customer Data, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
8.4. Indemnification by Customer. Customer shall, at its own expense, indemnify, defend and hold harmless StellarAlgo, its Affiliates, directors, officers, employees, agents, partners and licensors (collectively, the “StellarAlgo Indemnitees”) in any action, suit or proceeding brought by a third party against any of the StellarAlgo Indemnitees alleging that the Customer Data, or Customer’s use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party, or contravenes any applicable laws (collectively the “Customer Claims”) and shall indemnify and hold the StellarAlgo Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including, but not limited to, reasonable attorneys’ fees) awarded to such third party against any of the StellarAlgo Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for the defense and indemnification to be provided by Customer, StellarAlgo shall: (i) provide Customer with prompt written notice of any Customer Claim and copies of relevant documentation regarding any Customer Claim for which indemnification may be sought; (ii) give Customer sole control of the defense and settlement of such Customer Claim; (iii) cooperate fully with Customer, at Customer’s expense, in the defense or settlement of such Customer Claim; and (iv) not settle any Customer Claims or admit liability in respect to any Customer Claims. This obligation shall survive the termination or expiration of this Agreement and/or your use of the Service.
9.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
9.4. Beneficiaries. Every right, exemption from liability, release, defense, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
10.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties and Customer does not have any authority of any kind to bind StellarAlgo in any respect whatsoever.
10.2. No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
10.3. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by e-mail. Notices to StellarAlgo or Customer shall be addressed to the attention of the respective signatories of the applicable Order Form unless otherwise designated herein.
10.4. Publicity. Each party may include the name and logo of the other party in lists of Customers or vendors.
10.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect and enforceable.
10.7. Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.8. Governing Law. This Agreement shall be governed by: (i) the laws of the Province of Alberta, Canada, where Customer is not an entity incorporated in the USA; or (ii) the laws of Delaware, USA where Customer is an entity incorporated in the USA, in each case without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
10.9. Venue; Waiver of Jury Trial. Where Customer is not an entity incorporated in the USA then the provincial and federal courts located in Calgary, Alberta, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Where Customer is an entity incorporated in the USA then the state and federal courts located in Delaware, USA, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.10. Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
10.11. Entire Agreement. This Agreement, including all Order Forms and any terms referenced herein, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation other than the Order Form shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
