Terms of Service
This Stellate Terms of Service Agreement (“Service Agreement”) describes your rights and responsibilities as a customer of our Services. These Terms are between you and Stellate., a Delaware corporation (“Stellate”, “we” or “us”). “You” means the company you represent in accepting this Service Agreement or, if that does not apply, then you individually. If You are accepting on behalf of your employer or another company, then You represent that You: (i) have full authority to bind your employer or company to this Service Agreement; and (ii) agree to this Service Agreement on behalf of your employer or company. The exception to this is if your employer or company has a separate written agreement with Stellate covering the use of the Services, in which case that agreement governs. If You do not have the legal authority to bind your employer or company (or do not agree with this Service Agreement), then do not click the “confirm” button (or similar “I agree” checkbox) and do not use the Services.
To be eligible to use the Stellate Services, You must review and accept this Service Agreement. You may accept this Service Agreement by: (1) clicking a box indicating acceptance (such as a “I accept” or “confirm” button); (2) executing an order form that references this Service Agreement (each an “Order Form”); or (3) using free services.
This Service Agreement, any addendum (such as a Data Processing Addendum), and Order Forms (if between Stellate and You) constitute the entire agreement between Stellate and You (collectively, the “Agreement”).
You may not, without Stellate’s prior written consent, access or use the Services: (a) if You are a direct competitor; (b) to monitor the availability, performance or functionality of the Services; or (c) for any other benchmarking or competitive purposes.
This Services Agreement was last updated on November 1, 2021. It is effective between You and Stellate as the date of You accepting this Service Agreement.
Services, Support and Intellectual Property Rights
- Services. Subject to the terms and conditions of this Agreement, Stellate will provide You with access to the services specified on the applicable Order Form through the internet (the “SaaS Services”). The SaaS Services are subject to modification from time to time at Stellate’s sole discretion, for any purpose deemed appropriate by Stellate. Stellate will use reasonable efforts to give You prior written notice of any such modification.
- Intellectual Property. Stellate Services is made available on a limited access basis, and no ownership right is conveyed to You, irrespective of the use of terms such as “purchase” or “sale”. Stellate (and its licensors, where applicable) retains all intellectual property rights relating to the SaaS Services. Subject to the terms and conditions of this Agreement, You are hereby granted a limited, non-exclusive, nontransferable, revocable right to use the SaaS Service for its internal purposes only for the Term of the Agreement. You will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under the Agreement.
- Feedback. You may from time to time provide suggestions, comments or other feedback to Stellate with respect to the Service (“Feedback”). Feedback, even if designated as confidential by You, shall not create any confidentiality obligation for Stellate notwithstanding anything else. You shall, and hereby grant to Stellate a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
- Training/Implementation. Stellate may provide basic training services as (“Training/Implementation Services”) in connection with implementing the Services as specified on the applicable Order Form. Fees for such Training/Implementation Services will be included in the applicable Order Form, provided that Stellate may charge additional fees if You request additional or advance Training Services
Restrictions and Responsibilities
- You will not, and will not permit any third party to: reverse engineer (except to the extent statutory law expressly prohibits or limits restrictions on reverse engineering, but only to the extent required by such statute), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the SaaS Services, documentation or data related to the SaaS Services; modify, translate, or create derivative works based on the SaaS Services; use in excess of the levels set forth in Section 2.4 hereunder; use the SaaS Services for timesharing or service bureau purposes or for any purpose other than its own internal business purposes; or use the SaaS Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws); use the SaaS Services in a manner that violates any third party rights (including, without limitation, intellectual property and privacy rights); access or use the SaaS Services in order to create a product competitive with the SaaS Services.
- You will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). You may change the individual designated as Primary Contact at any time by providing written notice to Stellate. You will reasonably cooperate Stellate Terms of Service Form (Jul.22) with Stellate in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Stellate may reasonably request.
- Definition of Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Confidential Information” of the Disclosing Party).
- Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. The foregoing will not apply to any information that the Receiving Party can document: (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
- Compelled Disclosures. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that (to the extent permitted by applicable law) the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order and limits the amount disclosed to only what is legally required.
- Your Data. Your Data means the electronic data or information submitted by You to the SaaS Services. Notwithstanding anything to the contrary, You acknowledge and agree that Stellate may (i) internally use and modify (but not disclose) Your Data for the purposes of (A) providing the SaaS Services and any support or consultation services to You and (B) generating Aggregated De- Identified Data (as defined below), and (ii) freely use and make available Aggregated De-Identified Data for Stellate’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Stellate’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Stellate in connection with Your use of the SaaS Service, but only in aggregate, de-identified form which is not linked specifically to You or any individual.
- Permitted Disclosures. Both parties will have the right to disclose the existence, but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to a party’s attorneys, accountants, auditors, financial advisers, creditors, insurers, as well as acquirers, investors, financiers and bona fide potential acquirers, investors and financiers of such party, who are subject to an obligation of confidentiality.
- Deletion of Confidential Information. Upon termination of this Agreement, the Receiving Party will delete Disclosing Party’s Confidential Information, but may retain such information pursuant to its policies for: (a) accounting, tax, billing, audit, and compliance purposes; (b) investigating fraud or unlawful use of the SaaS Services; or (c) as required by applicable law, provided such retention, use, and disclosure for the foregoing purposes is subject to the confidentiality obligations under this Section 3 (Confidentiality).
- Totality of Confidentiality. For clarity, to the extent the parties have entered into (or enter into) a separate non-disclosure agreement regarding the access to (or use of) the SaaS Services, both parties agree that the terms of this Agreement supersede and control.
Payment of Fees
- Payment of Fees. You will pay Stellate the applicable fees as set forth on the Order Form (the “Fees”). If You use of the SaaS Services exceeds the service capacity set forth on the Order Form, You will be invoiced at the end of each calendar month for the excess usage over the Service Capacity, at the rate set forth on the Order Form, and You agree to pay the additional fees without any right of set-off or deduction; provided, however, that if no overage fees are specified in the Order Form, Stellate may suspend the SaaS Services if You have not ceased the excess usage within five (5) days of Stellate’s notice that You have exceeded the Service Capacity. To the extent applicable and set forth in an applicable Order Form, You will pay Stellate for Training/Implementation Fees or other services upon invoice thereof. All payments will be made in accordance with the Payment Schedule and the Method of Payment. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees.
- Taxes. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value- added, property and similar taxes, if any. You agree to pay such taxes (excluding US taxes based on Stellate’s net income) unless You have provided Stellate’s with a valid exemption certificate. In the case of any withholding requirements, You will pay any required withholding itself and will not reduce the amount paid to You on account thereof.
- Purchase Orders. No purchase orders sent by You will be deemed to modify or otherwise supplement this Agreement. For clarity, a purchase order sent by You with additional terms will be deemed null and void (even if the purchase order is acknowledged with a signature or otherwise referenced for purposes of processing invoices).
- Term. Each Order Form will define the specific duration of access to the SaaS Services (each a “Subscription Term”). The term of this Agreement commences on the Effective Date and continues until the Subscription Term specified in all Order Forms has expired or has otherwise been terminated (the “Term”).
- Termination for Cause. In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, with prior written notice, (a) upon the institution by or against the other party of insolvency, receivership or Chapter 11 bankruptcy proceedings, (b) upon the other party’s making an assignment for the benefit of creditors, or (c) upon the other party’s dissolution or ceasing to do business. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. If Stellate terminates in accordance with this Section 5.3 (Termination for Cause), then any unpaid fees covering the remainder of the then-current Subscription Term will become immediately due.
- Effect of Termination. The following Sections survive any expiration or termination of this Agreement: 1.3 (Intellectual Property), 1.4(Feedback), 2.1 (Restrictions/Responsibilities), 3 (Confidentiality), 4 (Payment of Fees), 5.3 (Effect of Termination), 6 (Warranties), 7 (Warranty Disclaimer), 8 (Liability), 9 (Indemnification), and 11 (General Provisions).
- Stellate warrants that: (i) the SaaS Services will achieve in all material respects the functionality described in applicable Documentation, and (ii) such functionality of the SaaS Services will not be materially decreased during the Term. Your sole and exclusive remedy for Stellate’s breach of this warranty shall be that Stellate shall be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Documentation and if Stellate is unable to restore such functionality, You shall be entitled to terminate the Agreement and receive a pro-rata refund of the prepaid Subscription Fees under the Agreement for the terminated portion of the remaining term. Stellate shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem. The warranties set forth in this Section 6.1 are made to and for the benefit of You only. Such warranties shall only apply if the applicable SaaS Services has been utilized in accordance with the Documentation, this Agreement and applicable law.
- No Virus Warranty. Stellate warrants that the Hosted Service will be free of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”), except for any Malicious Code contained in Your-uploaded attachments or otherwise originating from You.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 6, THE SAAS SERVICES AND STELLATE PROPRIETARY INFORMATION AND ANYTHING PROVIDED BY STELLATE, ITS LICENSORS OR ITS SUPPLIERS IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND. STELLATE, ON BEHALF OF ITSELF, ITS LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT.
Limitation of Liability
EXCEPT FOR INDEMNFICATION OBLIGATIONS SET FORTH IN SECTION 9 OR BREACH OF A PARTY’S OBLIGATIONS CONTAINED IN SECTION 3, IN NO EVENT WILL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SAAS SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SAAS SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SAAS SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF STELLATE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
IN NO EVENT WILL EITHER PARTY’S TOTAL AND CUMULATIVE LIABILITY, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE FIRST EVENT GIVING RISE TO A CLAIM UNDER THIS AGREEMENT. FOR CLARITY, THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
- Stellate Indemnity. Stellate will defend You against any third-party claim, action, proceeding or suit, to the extent that the SaaS Services infringes or misappropriates the intellectual property rights of any person and will pay for the resulting costs and damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in settlement by Stellate.
- Conditions. Stellate will have no obligation or liability with respect to the foregoing for any actual or alleged infringement arising from or relating to: (a) use of the SaaS Services other than in accordance with this Agreement; (b) modification of the SaaS Services by someone other than Stellate; (c) combination of the SaaS Services with any other products, services, or materials, or (d) Your failure to implement required updates to the SaaS Services as requested by Stellate. If Stellate believes Your use of the SaaS Services may be enjoined, then Stellate may, at its sole option and expense and as Your sole remedy, either: (i) procure for You a license to continue using the SaaS Services in accordance with the terms of this Agreement; (ii) replace or modify the allegedly infringing SaaS Services to avoid the infringement; or (iii) terminate this Agreement, and refund any unused prepaid Fees paid by You hereunder. SECTION 9.1 (STELLATE INDEMNITY) AND SECTION 9.2 (CONDITIONS) STATE THE ENTIRE LIABILITY OF STELLATE AND THE SOLE REMEDY FOR YOU IN CONNECTION WITH ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- Your Indemnity. You will defend Stellate from any and all claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Stellate arising out of or relating to Your breach of any term or condition of this Agreement.
- Indemnification Process. The obligations set forth in this Section 9 (Indemnification) apply only if: (a) the indemnified party notifies the indemnifying party in writing of any claim promptly upon learning of or receiving the same; (b) the indemnified party provides the indemnifying party with reasonable assistance requested by the indemnifying party, at the indemnifying party’s reasonable and documented expense, for the defense and settlement, if applicable, of any claim; and (c) the indemnified party provides the indemnifying party with the exclusive right to control and the authority to settle any claim, provided, however, that: (i) the indemnifying party will not settle any claim that admits fault or liability of the indemnified party without the indemnified party’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed); and (ii) the indemnified party will have the right to participate in the matter at its own expense.
- Export Compliance. The SaaS Service is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments. You will comply with applicable export and import laws and regulations (including “deemed export” and “deemed re-export” regulations). You will not (and will not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the SaaS Service or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) it is not located in, under the control of, or a national or resident of any such prohibited country and (ii) no Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that it is not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You will not to use or provide the SaaS Service for any prohibited end use, including (without limitation) to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
- Entire Agreement. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings and contemporaneous communications. This Agreement may not be modified except by written agreement of both parties.
- Assignment. Each party will not assign the Agreement or any of its rights or obligations hereunder except with the express written consent of the other party, provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale or merger of all or substantially all of such party’s business or assets relating to this Agreement, and (ii) Stellate may utilize subcontractors in the performance of its obligations hereunder.
- Relationship of the Parties. The parties are independent contractors; and this Agreement does not create or imply any partnership, agency or joint venture.
- Severability; No Waiver. If any provision (or any part thereof) of this Agreement is unenforceable under or prohibited by any present or future law, then such provision (or part thereof) will be amended, and is hereby amended, so as to be in compliance with such law, while preserving to the maximum extent possible the intent of the original provision. Any provision (or part thereof) that cannot be so amended will be severed from this Agreement; and, all the remaining provisions of this Agreement will remain unimpaired. A waiver of any provision of this Agreement must be signed by the waiving party; and, one waiver will not imply any future waiver.
- Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (other than monetary obligations) as a result of any cause or condition beyond such party’s reasonable control including, but limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunication failures, fires, floods, acts of terror, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of governments, acts of terrorism, or war.
- Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to or application of any conflicts of law rules or principles and without regard to the United Nations Convention on the International Sale of Goods. If You are located in the United States, all claims arising out of or relating to this Agreement will be brought exclusively in the federal or state courts for Delaware; and, You consent to such personal jurisdiction of those courts.
- Notices. Any notice or other communication under this Agreement given by any party to any other party must be in writing and will be effective upon delivery as follows: (a) if to You, (i) when delivered via registered mail, return receipt requested, to the address specified in the Order or otherwise on record for You; or (ii) when sent via email to the email address specified in an Order Form or otherwise on record for You; and (b) if to Stellate, when sent via registered mail, return receipt requested, to Stellate, Inc. at 650 Castro Street, Suite 120 #90571, Mountain View, CA. 94041 or such other address which Stellate may specify from time to time.