MASTER SOFTWARE LICENSE AGREEMENT
This Master Software License Agreement (“Agreement”) is entered into between Stardust Systems Inc (“Stardust”) and the user of SuzieQ Enterprise software (“Customer”).
LICENSE
License Grant. Subject to Customer’s compliance with this Agreement, including the timely payment of all applicable Fees, Stardust hereby grants to Customer a non-exclusive, non-transferable license (“License”), during the Subscription Term, to Use the software described in an order that has been executed by both parties (each, an “Order”), together with updates, if any, made available by Stardust to Customer (“Updates”) (collectively, “Stardust Software”) and the associated documentation (“Documentation”), solely for Customer’s internal use for its own business purposes. “Use” means that Customer may install on devices owned or controlled by Customer, run, access or otherwise interact with, a reasonable number of copies of the Stardust Software in accordance with Documentation, by up to the number of switches or nodes indicated in each Order (“Node”), and subject to any other usage limitations set forth in the Order. Unless otherwise indicated in the Order, the Stardust Software and Documentation will be delivered electronically. Notwithstanding anything to the contrary set forth herein, the Stardust Software may include third party materials, such as open source software, and any such third party materials included in Stardust Software (“Third Party Materials”) will be governed by the applicable licenses and terms as linked to or provided in the Stardust Software or Documentation, to the extent required by the applicable licensor.
Restrictions. Customer shall not, directly or indirectly, and shall not authorize any person, to the maximum extent permitted by applicable law, to (i) (except with notice and only to the minimum extent the restriction in this subpart (i) is not permitted by applicable law), decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code, algorithms, architecture or other elements of; (ii) translate, adapt, prepare derivative works of, or modify; (iii) write or develop any program based upon; (iv) use for benchmarking purposes; (v) sell, sublicense, lease, distribute, loan, transfer, or otherwise assign or grant to third party any rights in; (vi) allow access to unauthorized persons to; (vii) use the Stardust Software for providing any time-sharing services, software-as-a-service or “SaaS” offering, service bureau services or as part of an application services provider or other service offering; (viii) circumvent any limitations on use of the Stardust Software; (ix) alter or remove any proprietary rights notices in the Stardust Software; or (x) otherwise use except as expressly permitted hereunder, in each case of (i) – (x), the Stardust Software (other than Third Party Materials), Documentation, and Stardust’s Confidential Information, as applicable (collectively, “Stardust Technology”).
Ownership. Except for the License, as between Stardust and Customer, Stardust hereby retains all rights, title and interest, including all intellectual property rights, in and to the Stardust Technology. Stardust Technology is licensed and not sold. As a condition of the License, Customer must retain all copyright and other attribution legends on all copies of the Stardust Technology. Stardust and its affiliates hereby retain all rights, and in any event, Customer hereby grants them an unlimited, irrevocable, perpetual, fully paid-up right, to use without restriction all feedback or suggestions provided by or on behalf of Customer regarding Stardust Technology or otherwise.
Reporting Excess Use. Customer agrees to promptly notify Stardust in writing if its actual usage of the Stardust Software exceeds the quantity of Nodes or other applicable limitations set forth in the applicable Order. Customer shall include in such notice the amount of excess use and the date on which such excess use began. Stardust will invoice Customer for such excess use, adjusted on a pro rata basis from the date of first use and for the remainder of the applicable Subscription Term.
SUPPORT
Support. Subject to Customer’s timely payment of all applicable Fees, during the period set forth on each Order (“Support Term”). If Customer’s Order specifies that Customer has purchased Support, then Stardust will use commercially reasonable efforts to furnish to Customer the support services (“Support”), if any, set forth on each Order.
FEES; PAYMENT
Fees. Customer will pay Stardust the non-refundable and non-recoupable subscription and license fees (“Subscription Fees”) and all other fees (“Other Fees,” together with Subscription Fees, the “Fees”) set forth in the order or invoiced to Customer in accordance with Section 1.4. After the Initial Term, Stardust may increase the Fees for any subsequent Renewal Term upon at least 30-days’ written notice to Customer. Payment Terms. Unless otherwise set forth on an Order, invoices are due and payable in United States dollars within 10 days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser rate of 1.5% per month or the highest rate allowed by law. Taxes. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Stardust’s net income), and will indemnify Stardust for all expenses incurred as a result of Customer’s failure to timely pay thereof.
TERM AND TERMINATION
Term. This Agreement will start on the Effective Date and continue until all Orders have expired or been terminated for ninety (90) days. Unless terminated earlier in accordance with this Agreement, each Order will continue until the end of its initial term (as identified in the applicable Order) and thereafter, will automatically renew for immediately successive renewal terms of the same duration as the immediately preceding term (each a “Renewal Term” and collectively with the Initial Term, the “Subscription Term”), unless either party provides written notice of non-renewal at least 60 days before the expiration of the then applicable term.
Termination. Stardust may terminate this Agreement by written notice if any of the following occurs: (i) Customer fails to pay within no more than 10 days after written notice of nonpayment any amounts owed Stardust; (ii) except as set forth above, Customer is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; (iii) Customer ceases to operate or files for bankruptcy or similar protection.
Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and the License automatically terminate, and Customer will have no further rights to the Stardust Technology; (ii) all outstanding payment obligations of Customer become due and payable immediately; (iii) each party must promptly return or certify to the destruction of all tangible embodiments of the other party’s Confidential Information; and (iv) Customer will delete or destroy all copies of the Stardust Technology (and certify to Stardust in writing the fact of such destruction or deletion). The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.2 (Restrictions), 1.3 (Ownership), 3 (Fees; Payment), 4.3 (Effect of Termination), 5 (Confidentiality), 6 (Indemnification), 7 (Disclaimer; Limitation of Liability), and 8 (General Provisions).
CONFIDENTIALITY
Definition. “Confidential Information” means (i) any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement and reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Stardust Technology and the terms (but not the existence) of this Agreement are the Confidential Information of Stardust. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
Limited Use; Maintenance. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information.
Compelled Disclosure. If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing and will cooperate at the Disclosing Party’s expense in seeking a protective order or other appropriate remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.
INDEMNIFICATION
IP Indemnification. Stardust shall (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Stardust Technology (excluding Third Party Materials) as delivered to Customer and used as authorized in this Agreement infringes any U.S. patent, copyright or trade secret of any third party, and (ii) pay, subject to the limitations set forth in Section 7, any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Stardust; provided that Customer provides Stardust (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Stardust in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, Stardust may, at its sole option and expense: (a) procure for Customer the right to continue to use the applicable Stardust Technology; (b) modify the Stardust Technology to make it non-infringing; (c) replace the Stardust Technology with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate this Agreement.
Limitations. Notwithstanding Section 6.1, Stardust will have no liability to Customer for any claim arising out of or based upon: (i) use of the Stardust Technology in combination with software, products or services not provided by Stardust; (ii) any modification of the Stardust Technology not made or authorized in writing by Stardust; (iii) Customer’s failure to use the Stardust Technology in accordance with this Agreement or Documentation provided by Stardust, or otherwise using the Stardust Technology for purposes for which it was not designed or intended; or (iv) use of any specified release of the Stardust Software after Stardust notifies Customer that continued use of such release may subject Customer to a claim of infringement, if Stardust provides a replacement release.
Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 6 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF STARDUST, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE STARDUST TECHNOLOGY OR ANY PART THEREOF.
Indemnification by Customer. Customer shall (i) defend, or at its option settle, any claim brought against Stardust and its affiliates by a third party relating to (a) Customer’s use of the Stardust Technology other than pursuant to this Agreement, and (ii) pay, subject to the limitations set forth in Section 7, any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer; provided that Stardust provides Customer (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.
DISCLAIMER; LIMITATION OF LIABILITY
Limited Performance Warranty. Stardust warrants that during the applicable Subscription Term (“Warranty Period”), the Stardust Software will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, Stardust’s sole obligation, and Customer’s sole and exclusive remedy shall be for Stardust to (i) correct any failure(s) of the Stardust Software to perform in all material respects in accordance with the Documentation; or (ii) if Stardust is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, Customer may elect to terminate this Agreement. The warranty set forth in this Section 7.1 does not apply to the extent a non-conformity results from the applicable Stardust Software or any portion thereof: (a) being altered, except by Stardust; (b) not being used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) being subjected to misuse, negligence, or accident; or (d) being used on equipment, products, or systems not meeting specifications identified by Stardust in the Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Stardust during the applicable Warranty Period, and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Stardust or that results from Customer’s failure to use any Updates provided by Stardust.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE STARDUST TECHNOLOGY AND SUPPORT ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. STARDUST HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ARISING FROM COURSE OF DEALING. STARDUST DOES NOT WARRANT THAT THE STARDUST TECHNOLOGY WILL BE ERROR-FREE OR WILL WORK WITHOUT INTERRUPTIONS. THE STARDUST TECHNOLOGY IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE STARDUST TECHNOLOGY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. STARDUST SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH ACTIVITIES.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EACH PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) OR CUSTOMER’S BREACH OF SECTION 1.1 (LICENSE GRANT) OR 1.2 (RESTRICTIONS), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL STARDUST’S (OR ITS LICENSORS) TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) EXCEED THE SUM OF THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. EXCEPT FOR ANY ACTION BY STARDUST FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
GENERAL PROVISIONS
Assignment. Neither party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other party, except that Stardust may assign this Agreement without the written consent of Customer as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, hacker attack, or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
Export Control. Customer acknowledges that the Stardust Technology is subject to the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730-774 (2010)) and the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control. Customer is now, and will remain in the future, compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any Stardust Technology or disclose any Stardust Technology to any person contrary to such laws or regulations. Customer acknowledges that remote access to the Stardust Technology may in certain circumstances be considered a re-export of such Stardust Technology, and accordingly, may not be granted in contravention of U.S. export control laws and regulations. Customer represents that Customer is not sanctioned or prohibited by the U.S. government or any other public authority from entering into this Agreement or receiving the Stardust Technology on any basis including, but not limited to: (i) appearance on the List of Specially Designated Nationals and Blocked Persons or the Consolidated Sanctions List administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, or the Denied Persons List, Entity List or Unverified List administered by the Commerce Department’s Bureau of Industry and Security; (ii) being owned or controlled, directly or indirectly, by any one or more person covered by foregoing clause (i); or (iii) acting on behalf of any person covered by foregoing clause (i) or (ii).
Audit Rights. Customer shall maintain complete and accurate records of its use of the Stardust Technology during the Term and for 2 years thereafter. Upon 15 days’ written notice, and no more than once per calendar year, Customer shall provide Stardust with reasonable remote access or access to Customer’s premises during normal business hours to conduct an audit of Customer’s records and systems to verify compliance with this Agreement, including without limitation, verification regarding any restrictions on use of the Stardust Technology and calculation of Fees. Stardust shall bear the costs of any such audit, except that if Customer is found to have violated the terms of this Agreement, in addition to any and all remedies available to Stardust in law or equity, Customer shall reimburse Stardust for all reasonable audit expenses. In the event any such audit reveals that Customer has used the Stardust Technology in excess of the applicable quantitative limitations, Customer agrees to promptly pay an amount equal to the difference between the Fees actually paid and the Fees that Customer should have paid to remain in compliance with such quantitative limitations.
Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of these courts. If either party breaches or threatens to breach the provisions of Sections 1.1, 1.2, or 5, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
Miscellaneous. This Agreement (together with the Exhibits and Orders hereto) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence shall apply: Order(s), this Agreement. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Stardust to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. This Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each party set forth below, or to such other address as either party may substitute by written notice to the other, with an email copy to the emails below. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the U.S. mail. The relationship between the parties shall be that of independent contractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.
Support Terms
Help Desk Support.
Help Desk. Stardust will provide email and Slack support for the Stardust Technology covered under Support during Stardust’s normal Support business hours [9:00 a.m. – 5:00 p.m. (Pacific Time), Monday through Friday, excluding company holidays], to assist in identifying and diagnosing problems with the Stardust Technology (such as error messages, bug fixes, basic “how-to” functionality questions, installations, Updates). All Help Desk issues shall, if necessary, be prioritized according to the severity of a call, as determined by Stardust in its discretion. Help Desk Support does not include training, setup assistance, diagnosis of customer interface problems or integration or programming services for customized software, consulting, or equipment operation/problem support. Stardust Help Desk hours, time zones, and policies are subject to change at the option of Stardust.
Contacts. Customer shall appoint up to [three (3)] people as its authorized customer support contacts. Upon acknowledgement by Stardust, authorized customer support contacts may contact Stardust for Support. Authorized customer support contacts may be required to complete training on the operation and maintenance of the Stardust Technology as specified by Stardust.
Assistance. Customer shall promptly advise Stardust of any error or defect with the Stardust Technology and shall provide reasonable assistance and cooperation to allow Stardust to define and resolve such error or defect. This includes providing (i) a detailed problem description; (ii) reasonable efforts to reproduce the problem; and (iii) reasonable access to authorized customer support contacts.
Remote Diagnostics. Customer agrees to allow Stardust reasonable remote access to Customer’s computer system and software and SuzieQ data in order to provide the necessary Support pursuant to this Agreement.
Error and Update Support.
Errors. Stardust shall use reasonable efforts to provide corrections to software errors, malfunctions and bugs in the Stardust Technology in the form of patches, fixes, workarounds, Updates, or other forms within a commercially reasonable time depending on the severity of the error as determined by Stardust, and provided Customer is entitled to Support.
Updates. Stardust shall provide Updates to the ordered Stardust Technology which are commercially released during the Subscription Term for no additional license fee(s). New software modules which are not explicitly listed in an Order and for which license fees are separately stated by Stardust are not included under this provision. Updates may not include or accommodate customized software. Stardust shall provide Support on the current release, and two (2) prior Updates (“Supported Versions”). Stardust shall not be obligated to provide Support for versions that are not Supported Versions or for problems or errors caused by or related to customized software, or the addition of, or integration to, incompatible equipment/software; provided, however, that Stardust may, at its option, provide support therefor on a chargeable basis. Customer acknowledges that Updates are subject to the terms and conditions of this Agreement. In the event of any termination of Support, Customer shall not be entitled to any further Updates until Customer reinstates Support and pays any applicable reinstatement fee. Nothing in this Agreement obligates Stardust to develop or create Updates.