This MASTER SERVICES AGREEMENT ("Agreement") is made and entered into by and between Stellar Technologies, Inc. ("Stellar Technologies" or "Stellar"), an Arizona Corporation with its principal place of business at 828 N 3rd Street, Suite 101, Phoenix, AZ 85004, and Client ("Client" or "Customer"). Stellar Technologies and Client may each be referred to herein individually as a "Party" and collectively as the "Parties."

A. Stellar Technologies is a provider of various technology outsourcing and consulting services.

B. Client desires to engage Stellar Technologies to perform certain Services from time to time.

C. This Agreement sets forth the standard terms and conditions pursuant to which Stellar Technologies will provide Services to Client. 

NOW, THEREFORE, in consideration of the mutual covenants and obligations hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, it is hereby agreed between the Parties, as follows:

In addition to terms defined later in this Agreement, the terms below are defined as follows:

1.1 “Affiliate(s)” means any majority-owned subsidiary or other entity which a Party controls or is controlled by, or which is under common control with a Party.

1.2 “Client Equipment” means any equipment, software, hardware or services supplied by Client to use in conjunction with the Services or the Stellar Equipment.

1.3 “Fees” means the fees for Services, as set forth in the Services Proposal to this Agreement, as applicable. “Fees” also includes actual, reasonable and necessary costs which are directly related to Stellar Technologies’ performance of the Services. These costs include, but are not limited to, the costs for incidental supplies and costs related to travel, such as airfare, hotel, temporary housing, meals, parking, taxis, and mileage.

1.4 “Intellectual Property” means copyrights, patents, trade secrets and other intellectual and industrial property rights (excepting trade mark and related rights), and all applications and registrations relating thereto.

1.5 “Premises” means the location at which the Service(s) and/or Stellar Equipment will be provide to Client.

1.6 “Representatives” means a person’s or entity’s employees, agents and consultants, including without limitation, counsel, accountants and advisors.

1.7 “Services” means those managed services, and other related services, as specifically set forth in a Services Proposal and incorporated into this Agreement by reference.

1.8 “Services Proposal” means that certain Services Proposal, Services Proposal Agreement or Statement of Work entered into by the Parties referencing this Agreement.

1.9 “Stellar Equipment” means any equipment provided or rented to Client by Stellar Technologies or its agents with or without a separate charge or fee in connection with the Services. “Stellar Equipment” also includes any software, firmware, or other programs contained within the Stellar Technologies and Client Equipment. Examples of Stellar Equipment includes Stellar Technologies-provided gateways, routers, modems, converters/receivers/set top boxes, digital adapters, remote controls, and similar equipment used to deliver the Services. Stellar Equipment does not include equipment Client may purchase at retail or from Stellar Equipment directly that may perform some or all of the functions of Stellar Equipment. Client agrees that Stellar Equipment will remain the property of Stellar Technologies and Client will not acquire any ownership or other interest in any Stellar Equipment or any cabling or software by virtue of any payment made pursuant to this Agreement or by any attachment of the Stellar Equipment to the System or the Premises. Client agrees that Stellar Equipment will not be deemed fixtures or in any way part of the System or the Premises. Client agrees to use Stellar Equipment only for receiving and/or using the Service(s) pursuant to this Agreement.

1.10 “System” means Client’s network(s) and computer system(s) set forth in the applicable Services Proposal.

1.11 “Work Product” means all ideas, discoveries, inventions, materials, data, databases, software, designs, reports, communications, deliverables, or other work that is conceived, reduced to practice, made or developed solely or jointly by or for Stellar Technologies in connection with Stellar Technologies’ performance of any Services (whether or not patentable or copyrightable). “Work Product” expressly excludes login credentials and configurations created by Stellar Technologies for accessing Client Equipment and/or performing the Services.

Client agrees not to: (i) rent, lease, or loan the Services, or any part thereof, or provide the Services to others on its own behalf or on a third party’s behalf; (ii) permit third parties to benefit from the use of the Services via timesharing, service bureau arrangements, or otherwise; or (iii) download, export, or re-export any software or technical data received hereunder, regardless of the manner in which received, without all required United States and foreign government licenses.

Client shall not, and shall not request that any third party, modify, reverse engineer or attempt to gain unauthorized access to any portion of the Services. Client shall, by commercially reasonable means, prevent unauthorized disclosure, publication, display or use of the Services. Client will promptly notify Stellar Technologies of any known or suspected misuse of any Services.

Unless otherwise agreed in the applicable Services Proposal, Client will pay all Fees no later than thirty (30) days after the date of each applicable invoice. Pursuant to Section 3.3, Stellar Technologies may change the Fees effective at least thirty (30) days after Stellar Technologies’ written notice of such. All payments shall be made in U.S. Dollars.

Excluding Stellar Technologies’ own payroll and income taxes, Client shall pay amounts equal to any taxes, shipping, insurance, duties or other amounts, including without limitation, national, state, and local sales, use, withholding and VAT taxes, however designated, which are levied or based on such payments or arise as a consequence of the transactions under this Agreement. If Client is claiming tax-exempt status, Client shall provide Stellar Technologies with tax-exemption certificates prior to the initiation of the applicable Services.

Unless otherwise provided for in the applicable Services Proposal, Stellar Technologies has the right, at its option and in its sole discretion, to increase the Fees for any Services once every twelve (12) months upon thirty (30) days’ advance written notice to Client. The amount of each increase in fees will not exceed five percent (5%) over the then-current Fees for such Services, and each such increase will be effective as of the next calendar, quarterly, or monthly payment due date as applicable according to Client’s billing terms more fully described in the applicable Services Proposal.

In the event Client connects any additional equipment to the System and such equipment requires the provision of Services by Stellar Technologies pursuant to any then-outstanding Services Proposal, Stellar Technologies has the right to increase the Fees pursuant to such Service Proposals to accommodate such additional equipment.

If timely payment of any Fees or other amounts due to Stellar Technologies is not received within ten (10) days of Stellar Technologies’ written notice of non-payment, Stellar Technologies reserves the right, in addition to any other rights it may have, to: (i) immediately suspend the Services until such payment is made in full; (ii) charge interest on the amount past due at the lesser of 1.5% per month or the maximum allowed by law, beginning as of the original due date of such past due amount; and (iii) invoice Client for all costs of collection including, but not limited to, reasonable attorneys’ fees. STELLAR TECHNOLOGIES SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY DEGRADATION OF SERVICES OR ANY LOSS (INCLUDING ANY SECURITY RELATED LOSS OR EXPOSURE) AS A RESULT OF, OR IN CONNECTION WITH, STELLAR TECHNOLOGIES’ SUSPENSION OF SERVICES PURSUANT TO THIS SECTION 3.5.

(a) The terms and conditions of this Agreement shall apply to all Services Proposals agreed to in writing between Stellar Technologies and Client. Services Proposals are solely for the purpose of specifying services to be performed pursuant to the Services Proposal, requesting delivery dates, identifying quantities and the amount of all fees associated with the Services Proposal. Once agreed to in writing by the Parties, Services Proposals are non-cancellable by Client, except as set forth in Section 10.3 of this Agreement.

(b)  Client System requirements and Services exclusions will be as set forth in the applicable Services Proposal.

(c) Unless otherwise agreed upon in an applicable Services Proposal, Client shall be solely responsible for providing, maintaining and ensuring the compatibility of any hardware, software, electrical or other physical requirements necessary for Client to access or use the Services, including, without limitation, any computer hardware, software, telecommunications equipment, internet access or other equipment, programs or services necessary to access and use the Services. Client is responsible for all maintenance, support and licensing agreements with third party vendors, unless expressly set forth in this Agreement or the applicable Services Proposal. Further, Client shall be responsible for the application, operation, maintenance and support of its System, hardware and software including, but not limited to, the implementation of appropriate procedures, training and safeguards, performing routine backups, and keeping backup information in a safe and separate location. Stellar Technologies shall not be required to support altered, damaged or modified software, software which is not the most current version, or software not previously approved by Stellar Technologies in writing as an Stellar Technologies supported version.

(d)  Stellar Technologies is responsible for backing up or replicating Client’s System and restoring any lost software or data only as agreed to in writing in the applicable Services Proposal.

(e) Client must provide Stellar Technologies with access to and permission to use its information, internal resources, and facilities as requested by Stellar Technologies to provide the Services.

(f) Client may provide Stellar Technologies with certain content to be included in the Work Product. Client understands and agrees that it is solely responsible for obtaining the necessary licenses, registrations, rights and permissions to use such content, including, without limitation, all Intellectual Property, rights of publicity or privacy and any other similar rights. Client hereby grants Stellar Technologies a non-exclusive, sublicensable, fully-paid, worldwide right and license to use, reproduce, modify, edit, adapt, translate, create derivative works upon, publish, publicly display, publicly perform, distribute, transmit and otherwise make such content available in any form, medium or technology now known or later developed solely as part of the Work Product.

(g)  Client may request Stellar Technologies to install software on Client’s System and Stellar Technologies may recommend and install software on Client’s System. Client understands and agrees that Client is solely responsible for complying with software vendor end-user license agreements and any applicable state and federal laws.

(h)  Client shall be solely responsible for, and Stellar Technologies shall not be responsible or liable for: (i) any delay or failure of performance caused, in whole or in part, by Client’s delay in performing or failure to perform any of its obligations under this Agreement; or (ii) any final decisions, actions or inactions undertaken by Client as a result of the Services or any recommendations or advice provided by Stellar Technologies.

(i) Unless otherwise agreed upon in an applicable Services Proposal or addendum, in any event where the Customer adds assets or devices to be supported under an applicable Services Proposal, Stellar shall have the right to automatically adjust the billing to reflect the then-current total number of devices supported. This adjustment will be calculated based on the previously agreed-upon rates in the Services Proposal or as per the standard rates applicable at the time of such addition. Upon request by the Client, Stellar shall furnish an amendment to the Services Proposal that outlines these changes. This amendment will detail the assets or devices added, the adjusted billing rate, and any other relevant terms and conditions. The furnishing of such an amendment will be subject to practicality and availability of resources, and Stellar shall communicate with the Client to ensure transparency and mutual agreement of any such amendments. It is the responsibility of the Client to inform Stellar in a timely manner about any such additions to the scope of services. Stellar reserves the right to conduct periodic reviews of the supported assets or devices, update asset or device counts on future invoices to reflect the then-current counts, and initiate communication with the Client for any adjustments to the Services Proposal.

(a) Stellar Technologies may upgrade, replace, remove, add or otherwise change the Stellar Equipment at Stellar Technologies’ discretion at any time any Service is active or following the termination of Service(s). Client consents to such changes including software, firmware and other code updates or downloads, with or without notice to Client, which may alter, add to, or remove features or functionalities of the Stellar Equipment or Service. Client acknowledges and agrees that Stellar Technologies’ addition or removal of or change to the Stellar Equipment may interrupt Client’s Service(s). Stellar Technologies may, at its option, install new or reconditioned Stellar Equipment, including replacing Client’s existing Stellar Equipment, for which Client may incur a fee. Client agrees that such changes may be performed within Stellar Technologies’ sole discretion at any time and in any manner. If Stellar Technologies requests that Client replace, or offers to replace, Client’s equipment in order to provide Client with better Service or stronger security, and Client does not do so, Stellar Technologies is not responsible for any resulting degradation of service or security vulnerabilities. If Stellar Technologies requires that Client add or replace Stellar Equipment, Client agrees to accept such replacement equipment, and if Client does not do so, Client’s Services may be suspended.

(b) Client is responsible, and may be liable, for all Stellar Equipment on the Premises and in Client’s possession. Client may not sell, lease, abandon, or give away the Stellar Equipment. Client agrees that Client will not, and Client will not permit others, including without limitation any other provider of information technology or other services, to use, rearrange, disconnect, abandon, remove, relocate, repair, service, alter, modify, tamper or otherwise interfere with the Services or any of the Stellar Equipment including software, firmware, or code changes without Stellar Technologies’ prior written consent, which Stellar Technologies may withhold in its sole discretion. Such prohibition includes, without limitation, attaching or permitting others to attach any unauthorized devices to the Services or the Stellar Equipment, using or permitting others to use equipment that causes interference with the Stellar Equipment, and altering identifying information such as serial numbers or logos. If Client makes or assists any person to make any unauthorized connection or modification to Stellar Equipment or the Service(s), Stellar Technologies may terminate the Service(s) and recover such damages as may result from Client’s actions. Client also agrees that Stellar Technologies may recover damages from Client for tampering with any Stellar Equipment or for receiving unauthorized Service(s). Client agrees that Client will not allow anyone other than Stellar Technologies or its agents to service the Stellar Equipment.

(c) Client agrees that in the event of termination of any Service, Client will return all Stellar Equipment within thirty (30) days of termination of such Service, unless otherwise instructed in writing by Stellar Technologies. If Client and Stellar Technologies agree, pursuant to this Agreement, to amend a Services Proposal to modify Service(s) and the Stellar Equipment that Client possesses is no longer the correct device(s) to support the modified or new Service(s), Client must promptly return such Stellar Equipment and, if applicable, exchange it for alternative Stellar Equipment. Such Stellar Equipment must be returned within thirty (30) days of such amendment to the applicable Services Proposal or modification to the Service(s), unless otherwise instructed in writing by Stellar Technologies. The returned Stellar Equipment must be in good condition and without any encumbrances, except for ordinary wear and tear resulting from proper use. This provision shall survive the termination or expiration of this Agreement.

(d) The Stellar Equipment may only be used at the Premises. Client agrees that Client will not remove any Stellar Equipment from the Premises without Stellar Technologies’ prior consent. At Client’s request, Stellar Technologies may, at its discretion, relocate Stellar Equipment for Client within the Premises at Client’s written request and at a time agreeable to Client and Stellar Technologies, for an additional charge. CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT IF CLIENT ATTEMPTS TO INSTALL OR USE THE STELLAR EQUIPMENT OR SERVICE(S) AT A LOCATION OTHER THAN THE PREMISES, THE SERVICE(S) MAY DEGRADE OR MAY FUNCTION IMPROPERLY. If Client relocates to a new address, Client may be charged a fee to relocate the Stellar Equipment.

(a) Client warrants that Client is either the owner of the Client Equipment or that Client has the authority to give Stellar Technologies access to the Client Equipment. If Client is not the owner of the Client Equipment, Client is responsible for obtaining any necessary approval from the owner to allow Stellar Technologies and its agents access to the Client Equipment. Client Equipment is Client’s sole responsibility including all costs of installation, maintenance and repair. Client agrees to allow Stellar Technologies and its agents the rights to insert hardware in the Client Equipment, send software, firmware, and/or other programs to the Client Equipment and install, configure, maintain, inspect and upgrade the Client Equipment. Client is responsible and liable for any degradation or any interruption of Service, damage to Stellar Equipment, loss of data, loss of stored content or other consequences that Client, Stellar Technologies or any third party may suffer resulting from Client’s use of Client Equipment, including any Client Equipment to which Stellar Technologies or its agents has sent software, firmware or other programs. Stellar Technologies has no responsibility or liability for any loss of stored content or any damage to Client Equipment.

(b) All Client Equipment must comply with Stellar Technologies’ technical requirements which Stellar Technologies may post on its website, specify in a Services Proposal or otherwise describe in written notifications from time to time (“Technical Requirements”). Stellar Technologies will not be obligated to provide Service or support where Client Equipment fails to conform to the Technical Requirements. NEITHER STELLAR TECHNOLOGIES NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS WARRANT THAT CLIENT EQUIPMENT NOT MEETING THE TECHNICAL REQUIREMENTS WILL ENABLE CLIENT TO SUCCESSFULLY INSTALL, ACCESS, OPERATE, OR USE THE SERVICE(S). CLIENT ACKNOWLEDGES THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE CLIENT EQUIPMENT TO FAIL TO OPERATE OR CAUSE DAMAGE TO CLIENT EQUIPMENT, CLIENT, THE PREMISES OR STELLAR EQUIPMENT. NEITHER STELLAR TECHNOLOGIES NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. Stellar Technologies reserves the right to deny Client customer support for the Service(s), suspend Service(s), and/or terminate Service(s) if Client uses Client Equipment not meeting the Technical Requirements.

(c) Client acknowledges that Stellar Technologies may install software and may send firmware and other code updates or downloads to Client Equipment which will ensure full functionality of the Service(s) and may alter, add to, or remove features or functionalities of Client Equipment with or without notice to Client and Client agrees that such changes may be performed at any time and in any manner. Periodically Client may need to acquire new or additional Client Equipment to continue to use the Service(s) or receive the best quality of Service(s).

The relationship of Stellar Technologies and Client established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either Party the power to direct and control the behavior or day-to-day activities of the other; (ii) constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint undertaking; or (iii) allow Client to create or assume any obligation on behalf of Stellar Technologies for any purpose whatsoever. All financial and other obligations associated with Client’s business are the sole responsibility of Client. 

Stellar Technologies reserves the right to employ agents and subcontractors to assist Stellar Technologies when providing any part of the Services. Any reference to Stellar Technologies’ personnel in this Agreement includes agents and subcontractor staff. Stellar Technologies will remain liable to Client with respect to any Services provided, subject to the other provisions of this Agreement. Where Client requires Stellar Technologies to contract the services of a subcontractor specified by Client, Client will be responsible for the work to be performed by such subcontractor. Stellar Technologies’ agreement to integrate the work to be performed by such subcontractor for the purposes of this Agreement is on the basis that Stellar Technologies will not be responsible for, or liable to Client or to any other third party for the work performed by, or any acts, omissions, or defaults of, such subcontractor(s), or Stellar Technologies’ reliance thereon. In such circumstances, Client will be responsible and liable for, and will indemnify and hold harmless Stellar Technologies against and from, all claims, demands, proceedings, damages, losses, costs and expenses (including reasonable Attorneys’ Fees and Costs), made against, suffered or incurred by Stellar Technologies, directly or indirectly as a result of or in connection with the work performed by any such subcontractor.

Neither Client nor Stellar Technologies will recruit any personnel from each other during the Term of this Agreement or for at least one (1) year after termination or expiration of this Agreement, unless agreed in writing. If Client hires any Stellar Technologies personnel during the aforementioned period, and prior written authorization has not been obtained, Client shall pay a conversion fee equal to the then current annual salary of each Stellar Technologies personnel converted in contradiction of this Section. Such conversion fees shall be invoiced to Client and due to Stellar Technologies as set forth in Section 3.1.

Client agrees that nothing in this Agreement shall be construed to preclude Stellar Technologies from marketing, distributing, selling or providing any services to or for any other party, including other entities that may compete with Client. 

All Work Product shall be, and remain, the sole property of Stellar Technologies. If by operation of law or otherwise any portion of the Work Product is not exclusively owned in its entirety by Stellar Technologies immediately upon the creation thereof or at any point thereafter, then Client hereby assigns its portion of the Work Product to Stellar Technologies. Notwithstanding the foregoing, Stellar Technologies grants Client a worldwide, royalty-free, non-exclusive, non transferrable license to use the Work Product during and after the Term of this Agreement. Upon termination of this Agreement for any reason, the Work Product License will be deemed immediately revoked.

Except for the limited rights granted to Client under this Agreement to the Work Product, all right, title and interest in and to the Services and the Work Product, including without limitation all concepts, methods, processes, software, text, graphics, images, designs, databases, data, inventions and any improvements, enhancements, modifications, and derivative works thereto, and all Intellectual Property therein are, and at all times shall remain, the sole and exclusive property of Stellar Technologies (“Stellar Property”). All rights not expressly granted to Client are retained by Stellar Technologies. Where Stellar Technologies’ rights to any portion of the Stellar Property arise under agreement with a third party supplier, such supplier shall have the benefit of Stellar Technologies’ rights set forth in this Agreement, and may enforce such rights directly against Client.

In connection with this Agreement, each Party (“Recipient”) may be exposed to or acquire Confidential Information of the other Party (“Discloser”)or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form and regardless of the method of acquisition that the Discloser designates as confidential to Recipient or which, due to the nature of such information or under the circumstances surrounding disclosure, ought to be treated as confidential by the Recipient. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality. For purposes of clarity and without limitation, all Services and Work Product shall be considered the Confidential Information of Stellar Technologies and its suppliers. Upon Discloser’s written request, Recipient shall either return or destroy the Confidential Information and any copies or extracts thereof.

Recipient shall hold Discloser’s Confidential Information in confidence using commercially reasonable efforts and shall not disclose any such Confidential Information to any third party, other than to its Representatives and its Affiliates and their Representatives who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to, and no less restrictive than, those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than to carry out the terms of this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Discloser’s Confidential Information. Recipient shall promptly notify Discloser of any breach of this Agreement of which it becomes aware, and in any event, shall be responsible for any breach of this Agreement by any of its Affiliates, Representatives or Affiliates’ Representatives.

Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self regulatory or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall give the Discloser prompt written notice of such requirement or request prior to such disclosure and reasonable assistance (at Discloser’s expense) in obtaining an order protecting the information from public disclosure. Stellar Technologies and Client agree that the terms and conditions of this Agreement shall be treated as Confidential Information.

Stellar Technologies represents that: (i) the Services will be performed with such reasonable care and skill as is consistent with industry standards for such Services; (ii) it is duly organized, validly existing and in good standing under the laws of its state of domicile; (iii) it has the power and authority to execute and perform under this Agreement; and (iv) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.

Client represents that: (i) the information provided to Stellar Technologies for completing the Services is and will be accurate and complete in all material respects; (ii) it is duly organized, validly existing and in good standing under the laws of its state of domicile; (iii) it has the power and authority to execute and perform under this Agreement; and (iv) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.

STELLAR TECHNOLOGIES IS BEING ENGAGED ONLY TO PROVIDE THE SERVICES SET FORTH IN THIS AGREEMENT AND IN THE APPLICABLE SERVICES PROPOSAL AGREED BY THE PARTIES IN WRITING, INCLUDING ANY AGREED WORK PRODUCT. THE FOREGOING LIMITED WARRANTIES DO NOT APPLY TO MODIFICATIONS TO THE SERVICES OR THE WORK PRODUCT. STELLAR TECHNOLOGIES SHALL NOT BE LIABLE FOR ANY LOSS OF DATA AND SHALL NOT BE RESPONSIBLE FOR RESTORING ANY LOST DATA OR SOFTWARE EXCEPT AS SPECIFICALLY DESCRIBED IN THE APPLICABLE SERVICES PROPOSAL. STELLAR TECHNOLOGIES DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SYSTEMS. HOWEVER, AND TO THE EXTENT PERMITTED, STELLAR TECHNOLOGIES WILL PASS THROUGH ANY WARRANTIES FROM SUPPLIERS OF PRODUCTS OR SERVICES. WITH THE EXCEPTION OF THE FOREGOING LIMITED WARRANTIES, STELLAR TECHNOLOGIES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES OR WORK PRODUCT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STELLAR TECHNOLOGIES MAKES NO WARRANTY THAT THE SERVICES AND ANY WORK PRODUCT WILL MEET CLIENT’S REQUIREMENTS OTHER THAN THOSE SET FORTH IN THE APPLICABLE SERVICES PROPOSAL, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING WILL BE SATISFACTORY, ACCURATE OR RELIABLE, OR THAT THE SERVICES OR WORK PRODUCT WILL MEET CLIENT’S EXPECTATIONS. THE REPRESENTATIVES OF STELLAR TECHNOLOGIES HAVE NO AUTHORITY TO GIVE ANY WARRANTIES ON BEHALF OF STELLAR TECHNOLOGIES. CLIENT IS SOLELY RESPONSIBLE FOR THE SCOPE, GOALS AND OVERALL DIRECTION OF THE SERVICES, AS WELL AS THE IMPLEMENTATION OF ANY COURSE OF ACTION BASED ON SUCH SERVICES. 

Stellar Technologies shall defend at its own expense any third-party claim, suit or proceeding brought against Client insofar as it is based on a claim that Work Product infringes a valid United States patent. Stellar Technologies shall pay all damages, costs and expenses finally awarded to third parties as a result of a final judgment against Client or settlement of such claim negotiated by Stellar Technologies, but shall not be responsible for any compromise made without its written consent. To qualify for such defense and payment, the Client must: (i) give Stellar Technologies prompt written notice of any such claim; and (ii) allow Stellar Technologies to control, and fully cooperate with Stellar Technologies in, the defense and all related settlement negotiations. Upon notice of an alleged infringement, or if, in Stellar Technologies’ opinion, such a claim is likely, Stellar Technologies shall have the right, at its option, to obtain the right for the Client to continue to use the applicable Work Product, substitute other work with similar capabilities or performance, or modify Work Product so that it is no longer infringing. In the event that none of the above options are commercially practicable in Stellar Technologies’ sole discretion, Stellar Technologies may terminate this Agreement and all accompanying licenses. In the event of such termination, Client may, as its sole and exclusive remedy, obtain a refund from Stellar Technologies of any pre-paid Fees paid for the Work Product, pro-rated over a period of five (5) years. Stellar Technologies shall not be responsible for any claim of infringement that arises from: (i) unauthorized modifications to Work Product; (ii) use of Work Product in a manner or in combination with products not provided or approved in writing by Stellar Technologies; or (iii) any use of Work Product not in accordance with this Agreement or the applicable Services Proposal. THE FOREGOING STATES CLIENT’S EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT TO ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.

Client (as the “Indemnitor”) shall defend, indemnify and hold harmless the Stellar Technologies and its officers, directors, employees, and agents (collectively, “Indemnitees,”), for, from and against any and all third party (the modifier third party applying to all of the following listed categories) losses, damages, liabilities, deficiencies, claims, actions, causes of action, judgments, settlements, assessments, demands, interest, awards, penalties, fines, costs, or expenses, including, without limitation, reasonable Attorneys’ Fees and Costs (as defined below) that are incurred by Indemnitee or awarded against Indemnitee (collectively, “Losses”) that an Indemnitee may incur or be subject to as a result of or arising out of: (i) Client’s failure to comply with applicable law or regulation; (ii) the gross negligence or willful misconduct of Client (or any third party for whom Client is responsible); (iii) Client’s obligations and duties to any third party, whether in law, equity or contract, including its obligations and duties in connection with any third party provider of software or hardware; (iv) Client’s breach of any other agreement or any judgment, order, or decree by which Client is bound; and (v) Client’s decisions and actions taken (or not taken) in connection with or resulting from the Services or any recommendations and advice provided by Stellar Technologies.

The Indemnitor shall pay all damages, costs and expenses finally awarded under Section 8.2 to third parties as a result of a final judgment against an Indemnitee or settlement of such claim negotiated by the Indemnitor, but shall not be responsible for any compromise made without its written consent. To qualify for such defense and payment, the Indemnitee must: (i) give the Indemnitor prompt written notice of any such claim; and (ii) allow Indemnitor to control, and fully cooperate with Indemnitor in, the defense and all related settlement negotiations.

IN NO EVENT (I) SHALL STELLAR TECHNOLOGIES’ LIABILITY TO THE CLIENT EXCEED THE AGGREGATE AMOUNTS PAYABLE BY CLIENT TO STELLAR TECHNOLOGIES IN THE NINETY (90) DAYS PRECEDING WRITTEN NOTICE OF ANY CLAIM, AND THE EXISTENCE OF MORE THAN ONE CLAIM OR CAUSE OF ACTION WILL NOT ENLARGE THE FOREGOING LIMIT; OR (II) SHALL STELLAR TECHNOLOGIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM BREACH OF WARRANTY, LOST PROFITS, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY IS AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

This Agreement shall begin on the Effective Date and shall remain in full force and effect until terminated by either Party pursuant to this Section (the “Term”).

Either Party may terminate this Agreement or any applicable Services Proposal at any time without cause upon ninety (90) days prior written notice to the other Party.

Either Party may terminate this Agreement upon thirty (30) days written notice of a material breach of this Agreement if such breach is not cured within such thirty (30) day period.

In the event of termination of this Agreement for any reason, this Section and Section 1.0 (Definitions), Section 2.0 (Restrictions on Services), Section 3.0 (Purchase Terms), Section 4.1(f) (Client Obligations), Section 4.2(c) (Stellar Equipment); Section 4.4 (Independent Contractor Relationship), Section 4.5 (Subcontracting), Section 4.6 (Non-Solicitation), Section 5.0 (Intellectual Property), Section 6.0 (Confidentiality), Section 7.0 (Limited Warranties), Section 8.0 (Indemnification Obligations), Section 9.0 (Limitation of Liability), Section 10.5 (Effect of Termination) and Section 11.0 (Miscellaneous) shall survive.

Termination of any Services Proposal by either Party pursuant to Section 10.2 or Section 10.3 shall not terminate this Agreement or any other Services Proposals. Termination of this Agreement by either Party pursuant to Section 10.2 or Section 10.3 shall automatically terminate all Services Proposals under this Agreement as of the termination date. Upon termination by either Party of this Agreement or a specific Services Proposal, Client shall pay Stellar Technologies (a) all amounts due and unpaid under the terms of this Agreement and/or such Services Proposal(s), and (b) all amounts that would be payable to Stellar Technologies under the terms of this Agreement or such Services Proposal(s) during the Term of the Agreement or such Services Proposal(s) had not been terminated. Termination shall not preclude a non-breaching Party from pursuing any and all remedies available to it at law or equity.

Client may not assign this Agreement without the prior written approval of Stellar Technologies. For the purposes of this Section, a change in the persons or entities that control fifty percent (50%) or more of the equity securities or voting interest of Client shall be considered an assignment. 

The waiver by either Party of a breach of any provision shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or a continuing waiver of the provision itself. 

Except for Stellar Technologies’ suppliers, the terms and provisions of this Agreement are intended solely for the benefit of each Party hereto and their respective successors and assigns, and it is not the intention of the Parties to confer third-party beneficiary rights upon any other person.

(a) This Agreement shall be governed in all respects by the laws of the State of Arizona, without regard to its choice of law rules. No action arising out of this Agreement, regardless of the form, may be brought by either Party more than one (1) year after the cause of action has accrued. No legal action regardless of the form, relating in any matter to this Agreement may be brought by either Party more than one (1) year after recognition of the event giving rise to the cause of action with the exception of non-payment hereunder, breach of the confidentiality obligations, or actions for breach of Stellar Technologies’ intellectual property rights.

(b) If a dispute arises between the Parties relating to this Agreement that cannot be resolved informally, the Parties shall resolve the dispute by arbitration. Arbitration shall be commenced by written notice from either Party that such Party has elected to have such dispute settled by arbitration.  Any dispute shall be settled by arbitration in the Phoenix Metropolitan Area, Arizona and judgment upon the award rendered may be entered in any court having jurisdiction thereof, under the then current Commercial Arbitration Rules of the American Arbitration Association (the “Association”).  The arbitration shall be held at a mutually agreeable location in Phoenix Metropolitan Area, Arizona by a single arbitrator agreed upon by the Parties (the “Arbitrator”). If the Parties cannot agree upon the Arbitrator, each Party shall select an arbitrator and such selected arbitrators will together select the Arbitrator.  Not later than ten (10) days after the delivery of a written notice of a dispute, the Parties shall submit the matter to the Association.  Not later than ten (10) days after the Arbitrator is appointed, the Arbitrator shall schedule the arbitration for a hearing to commence on a mutually convenient date.  The hearing shall commence no later than thirty (30) days after the Arbitrator is appointed.  The Arbitrator shall issue his or her award in writing no later than twenty (20) calendar days after the conclusion of the hearing. 

(c) Notwithstanding anything to the contrary, the Parties acknowledge and agree that a remedy at law for any breach or attempted breach of the provisions of Section 4.4 (Non-Solicitation), Section 5.0 (Intellectual Property) and Section 6.0 (Confidentiality) may be inadequate, and therefore, either Party is entitled to specific performance and injunctive or other equitable relief in the event of any such breach or attempted breach, in addition to any other rights or remedies available to either Party at law or in equity; provided, that, Client is not entitled to specific performance or injunctive or other equitable relief in the event of Stellar Technologies’ suspension of Services pursuant to Section 3.5 or Stellar Technologies’ termination of this Agreement or any Services Proposal pursuant to Section 10.2. Each Party waives any requirement: (i) for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief; and (ii) for proving actual damages. For clarification, a Party does not have to follow the arbitration procedures set forth in Section 11.4(b) in the event this Subsection is applicable.

(d)  The prevailing Party in any action between the Parties relating to this Agreement will be entitled to an award of its reasonable Attorneys’ Fees and Costs incurred in connection with such action. “Attorneys’ Fees and Costs” means: (i) fees and out-of-pocket costs of a Party and a Party’s attorneys, as applicable, including costs of such Party’s in-house counsel, support staff costs, costs of preparing for arbitration, computerized research, telephone and facsimile transmission expenses, mileage, deposition costs, postage, duplicating, process service, videotaping and similar costs and expenses; (ii) costs and fees of expert witnesses, including appraisers; and (iii) investigatory fees. 

In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such provision shall be changed and interpreted so as to best accomplish the objectives within the limits of applicable law or if necessary to maintain the validity of the remaining terms, removed from the Agreement. 

Neither Party shall be liable for any delay or failure to perform arising from any cause beyond its reasonable control, except for the payment of money, including without limitation, to the extent that performance is rendered impossible by strike, fire, flood, wars, sabotage, civil unrest, governmental acts, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming Party.

All notices given pursuant to this Agreement shall be in writing and effective: (i) upon receipt if hand delivered; (ii) on the next business day after being sent by confirmed email or facsimile; (iii) on the third business day following deposit with the postal service and addressed to the receiving Party’s respective address listed in an applicable Services Proposal to this Agreement, unless otherwise agreed to in writing.

Stellar Technologies shall have the right, during normal business hours and with reasonable advance notice, to inspect Client’s premises or audit Client’s network for the purpose of verifying Client’s compliance with its obligations under this Agreement.

The Parties agree that this Agreement was negotiated fairly between them at arm’s length and that the final terms of this Agreement are the product of the Parties’ negotiations. The Parties further agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party on the grounds that the Party drafted or was more responsible for drafting the provision(s).

This Agreement and any Services Proposals, as well as any written amendments, completely and exclusively state the agreement of the Parties regarding the subject matter described. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of Stellar Technologies and Client by their duly authorized
representatives.

This Agreement and any signed agreement or instrument entered into in connection with this Agreement (including Service Proposals), and any amendments hereto or thereto, to the extent delivered by means of a facsimile machine or electronic mail (any such delivery, an “Electronic Delivery”), will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party hereto or to any such agreement or instrument, each other Party hereto or thereto will re execute original forms thereof and deliver them to all other Parties. No Party hereto or to any such agreement or instrument will raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense related to lack of authenticity.

By entering this Agreement, Client expressly consents for Stellar Technologies or its affiliates to communicate with Client via SMS messages at the telephone number that Client provides for service authentication purposes. Client understands that its carrier’s standard message and data rates apply. Notwithstanding anything to the contrary in this Agreement, Stellar Technologies shall not be responsible or liable for any losses, damages, costs, or expenses incurred by the Client as a result of any authorizations, transactions, or actions made by a person who has gained unauthorized access to the Client’s phone number capable of receiving SMS messages due to a SIM swap fraud or any other form of unauthorized access.

In the event of any conflict between this Agreement and any Services Proposal, the terms if this Agreement will control.