9STAR ANNUAL SUPPORT AND MAINTENANCE AGREEMENT
9STAR Annual Support, Services and Maintenance Agreement (“Agreement”) made by and between 9STAR Research, Inc. (“9STAR”), located at 3801 North Capital of TX Hwy, Austin, Texas 78746-1482, and the Client indicated below (“Client”). THE ADDITIONAL TERMS, CONDITIONS AND DESCRIPTIONS SET FORTH ON SUBSEQUENT PAGES HEREOF AND ON THE ATTACHMENTS HERETO ARE AN INTEGRAL PART OF THIS AGREEMENT. THIS AGREEMENT SHALL BECOME A BINDING CONTRACT ONLY UPON ACCEPTANCE BY 9STAR.
1. System: For purposes of this Agreement, “System” means Shibboleth or ElasticSSO Software obtained by Client under the licensed terms.
2. Maintenance: Commencing on the Initial Annual Maintenance Period Start Date indicated on the Attachment hereto, and subject to all terms and conditions of this Agreement, 9STAR shall provide Client upon request and as necessary, the following technical support services and deliverables, and as set forth on the Attachment hereto: (i) technical assistance during the hours of 8:30 a.m. – 5:30 p.m. US CST excluding weekends and holidays, (ii) up to three designated employees or contractors (“Support Contacts”) of the Client with 9STAR, and (iii) such other services as are set forth on the Attachment (all of the foregoing are collectively “Maintenance”). The designated Support Contacts can be changed anytime by the Client. Any changes to the terms of Maintenance provided hereunder must be agreed to in writing by both parties as an amendment hereto. Client shall at all times reasonably cooperate with 9STAR in the provision of Maintenance. The parties agree that all Maintenance will be provided remotely by 9STAR. Client expressly acknowledges that 9STAR’s ability to provide Maintenance with respect to the System or given portions thereof may be subject to rights, permissions or performances of third parties (including without limitation licensors, owners or manufacturers of software or hardware in connection with which the System is used), and 9STAR’s obligations to provide Maintenance hereunder shall be expressly subject to such rights, permissions or performances of third parties. To the extent that Maintenance involves 9STAR accessing or interacting with computer systems owned or controlled by Client (as set forth on the Attachment or as requested by Client and agreed to by 9STAR), Client hereby consents to such access and interaction (remotely or otherwise) for the limited purpose of 9STAR’s performance hereunder.
3. Payment for Annual Support, Services and Maintenance: Each Maintenance Period will run for a period of twelve (12) months. Client shall only be entitled to Maintenance during a given Maintenance Period upon 9STAR’s timely receipt of the Subscription Fee (as outlined in the quote document provided separately) to such Maintenance Period. Client is solely responsible for payment of all local, state, and federal sales, use excise, personal property or other similar taxes or duties, and any other such taxes, which may now or hereafter be imposed upon Client in connection with this Agreement or Client’s possession or use of the System or Maintenance, excluding taxes measured on 9STAR’s income. Client agrees to hold harmless 9STAR for all claims and liability arising from Client’s failure to report or pay such taxes (other than to the extent 9STAR is required by law to collect or pay same). At Client’s request and at 9STAR’s option, 9STAR may provide to Client additional technical support services not encompassed by Maintenance, and Client agrees to pay for same upon invoice at 9STAR’s then-specified rates and charges. In all cases when additional technical support requested by Client is not included as Maintenance and Client will be required to pay additional charges for such work, 9Star shall so notify Client in advance of conducting any of the additional work for Client.
4. Termination. This Agreement may be terminated by either party with notice given to the other, with such termination becoming effective at the end of the then-current Maintenance Period. Unless terminated as provided herein, at the end of each then-current Maintenance Period, this Agreement shall automatically terminate unless both parties agree in writing in advance to extend the Maintenance Period. In addition, 9STAR may terminate this Agreement with 30 days’ written notice to Client if Client is in material breach of any provision of this Agreement and provided that Client has failed to reasonably cure such breach within such 30 days after receipt of such written notice.
5. Confidentiality. (a) Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party to this Agreement (“Disclosing Party”) disclosed to the other party to this Agreement (“Receiving Party”), whether orally or in writing or by a party fulfilling its obligations under this Agreement, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing general definition, Confidential Information includes, without limitation, the Software, any of your data, business and marketing plans, technology and technical information, product designs, financial information, personal identifying information, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; or (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party. (b) Use and Protection of Confidential Information. Except as expressly permitted hereunder, the Receiving Party shall not disseminate or reveal or make available in any manner or form any portion of the Confidential Information to any individual other than its employees on a “need to know” and confidential basis. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. (c) Remedies. The parties acknowledge that, should the Receiving Party violate any provision of this Section 5, the Disclosing Party will be without any adequate remedy at law, and shall be entitled to seek an injunction against such breach from any court of competent jurisdiction, in addition to all other remedies available to it. This Section 5 shall survive expiration or termination of this Agreement for any reason whatsoever and the parties’ obligations under this Section 5 shall continue (i) with respect to Confidential Information constitutes a trade secret under applicable law, until such time as such information no longer constitutes a trade secret under applicable law due to no fault of the Receiving Party, and (ii) with respect to all other Confidential Information, for a period of three (3) years after the date such information is disclosed to the Receiving Party. Nothing in this Section 5 shall be construed to limit any rights or remedies afforded to the parties under any applicable law. Notwithstanding the foregoing, the parties’ obligations under this Section 6 shall cease with respect to Confidential Information which is: (a) made publicly available or lawfully disclosed by a non-party to this Agreement; (b) independently developed by your personnel which is not based on or derived from the Confidential Information the parties’ are obligated to hold confidential hereunder; or (c) previously known to the Receiving Party without an obligation to keep it confidential. (d) Compelled Disclosure. If the Receiving Party s compelled by law to disclose the Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent permitted by law) and reasonable assistance, at Disclosing Party’s costs, if the Disclosing Party wishes to contest the disclosure. (d) This Section 5 shall survive the expiration or earlier termination of this Agreement.
6. Client’s Representations and Warranties; Indemnity. (a) Client represents and warrants that (i) Client will use its commercially reasonable efforts to furnish materially accurate information to 9STAR in connection with this Agreement, , (ii) Client will use the System and Maintenance only in accordance with all applicable laws and regulations of any jurisdiction in which the System or Maintenance are used by Client, and (iii) Client has, and shall have throughout the term hereof, all licenses, rights and permissions necessary to use the hardware and software in connection with which Client uses the System and Maintenance and to permit 9STAR to perform its obligation hereunder with respect to the System. Client shall immediately notify 9STAR of any change in Client’s licenses, rights and/or permissions which may adversely affect 9STAR’s ability to provide Maintenance hereunder.
(b) 9STAR represents, warrants and covenants that (i) it has and will have all necessary lawful rights and authority to enter into this Agreement, perform its obligations hereunder under this Agreement, (ii) it will not breach any contracts with other entities by entering into this Agreement, (iii) it will comply with all laws, statutes, regulations, rules and ordinances (“Laws”) applicable to its performance of its obligations under this Agreement, (iv) the System, the Maintenance, and all other related materials, including documentation, and any updates to any of the foregoing which 9Star makes available to Client (a) when used or provided in accordance with this Agreement does not infringe, misappropriate or otherwise violate any third-party intellectual property rights (including, without limitation, rights relating to copyrights, patents, trademarks, trade secrets, rights of attribution, integrity and other moral rights, and all other intellectual property or proprietary rights of any kind under applicable law) or violate any applicable Laws, and (b) is free from any, and does not link to any, “worm”, “virus” or other disabling device (as such terms are understood in the computer industry), and (v) it will provide the Maintenance described in this Agreement to Client in a professional and workmanlike manner.
(c) Client shall defend, indemnify and hold harmless 9STAR and its successors or assigns (if permitted hereunder), subsidiaries, officers, directors, employees, agents, and independent contractors (collectively “9Star Indemnitees”) against any and all third-party claims, liability, loss, damage, or harm (including without limitation reasonable legal and accounting fees)(collectively, “Claims”) suffered by such 9Star Indemnitees (including without limitation claims, liability, loss, damage, or harm in connection with death, bodily injury or injury to real or personal property) to the extent arising from or in connection with (i) Client’s breach of any provision of this Agreement, or (ii) any fraud, gross negligence or willful misconduct by or on behalf of Client in connection with this Agreement or its performance hereunder.
(d) 9STAR shall defend, indemnify and hold harmless Client and its successors or assigns (if permitted hereunder), subsidiaries, officers, controlling shareholders, directors, employees, agents, and independent contractors (collectively “Client Indemnitees”) against any and all third-party Claims suffered by such Client Indemnitees (including without limitation claims, liability, loss, damage, or harm in connection with death, bodily injury or injury to real or personal property) to the extent arising from or in connection with (i) 9STAR’s breach of any provision of this Agreement, (ii) any fraud, gross negligence or willful misconduct by or on behalf of 9STAR in connection with this Agreement or its performance hereunder, and (iii) any actual or alleged infringement of the intellectual property, privacy or other rights of any third party by the System, the Maintenance, or any other related materials, including documentation, and any updates to any of the foregoing which 9STAR makes available to Client.
(e) Any party seeking indemnification hereunder (an “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”): (i) reasonably prompt notice of the relevant Claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure, (ii) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such Claim; and (iii) the right to control the defense and settlement of any such Claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any Claim in any manner that adversely affects the Indemnified Party’s rights or interests. The Indemnified Party shall have the right to participate in the defense at its own expense. The indemnification obligations contained in this Section 6 are the parties’ sole and exclusive obligations and their sole and exclusive remedies for the Claims described in this Section 6.
(f) The indemnification obligation of this Section 6 shall survive expiration or termination of this Agreement for any reason whatsoever.
7. Disclaimer of Warranties; Limitation of Liability: EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, 9STAR MAKES NO REPRESENTATIONS OR WARRANTIES TO CLIENT CONCERNING THE MAINTENANCE, AND 9STAR HEREBY EXCLUDES AND DISCLAIMS, WITHOUT LIMITATION, ANY AND ALL WARRANTIES CONCERNING THE MAINTENANCE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY EXPRESS OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGE OF THE TRADE. CLIENT ACKNOWLEDGES THAT 9STAR HAS NOT REPRESENTED OR WARRANTED THAT THE MAINTENANCE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT FOR BREACHES OF SECTION 5 OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, EACH PARTY’S LIABILITY FOR ANY LOSSES OR DAMAGE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FROM ANY CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO ACTUAL, DIRECT DAMAGES. EXCEPT FOR BREACHES OF SECTION 5 OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, IN NO EVENT SHALL A PARTY’S LIABILITY HEREUNDER EXCEED AN AMOUNT EQUAL TO THE PARTY’S AVAILABLE INSURANCE. EXCEPT FOR BREACHES OF SECTION 5 OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA OR LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF A PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Client. They also may not apply to Client because Client’s country may not allow the exclusion or limitation of incidental, consequential or other damages. The remedies of Client are limited by this Section 7. This Section 7 shall survive expiration or termination of this Agreement for any reason whatsoever.
8. General Provisions: In the event any portion of this Agreement is or becomes or is declared invalid or void by any court or tribunal of competent jurisdiction, such term(s) shall be null and void and shall be deemed severed from this Agreement, and all remaining terms of this Agreement shall remain in full force and effect. To the extent permitted by applicable law, this Agreement shall be governed solely by the laws of the State of New York (except any of such laws of the State of New York as would apply the laws of any other jurisdiction) and controlling United States federal law. ANY DISPUTES, ACTIONS, CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE MAINTENANCE SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION OF THE STATES AND FEDERAL COURTS LOCATED IN OR FOR THE STATES OF NEW YORK AND TEXAS, AND THE PARTIES HERETO HEREBY CONSENT TO THE PERSONAL JURISDICTION OF SUCH COURTS, PROVIDED THAT ANY ACTIONS INITIATED BY 9STAR SHALL BE INITIATED IN THE COURTS LOCATED IN THE STATE OF NEW YORK AND ANY ACTIONS INITIATED BY CLIENT SHALL BE INITIATED IN THE COURTS LOCATED IN THE STATE OF TEXAS. Any delay or nonperformance by either party of any provision of this Agreement caused by conditions beyond its reasonable control shall not constitute a breach of this Agreement by such party, and the time for performance of such provision shall be deemed to be extended for a period of time equal to the duration of the conditions preventing performance; provided that if such conditions caused by conditions beyond the reasonable control of 9Star result in the failure of the System to perform substantially in accordance with its specification and documentation for a period of more than 15 consecutive days, then upon written notice to 9STAR Client may terminate this Agreement. Except for the Quote, the 9Star Elastic SSO Enterprise IDP Software License Agreement and the 9Star SSO Services Agreement, this Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and is intended as the parties’ final expression and complete and exclusive statement of the terms thereof, superseding all prior or contemporaneous agreements, representations, promises and understandings, whether written or oral, and may be amended or modified only by an instrument in writing signed by the parties hereto. This Agreement shall be binding upon and shall inure to the benefit of the parties and their permitted successors and assigns. Neither party may assign or subcontract any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other party, except that, without such consent, a party may assign this Agreement to any current or future subsidiary, parent or other affiliate, or to any purchaser of all or substantially all of the stock or assets of, or to the surviving entity in any merger or consolidation with, such party (or the applicable division or divisions thereof). The System and Maintenance may be subject to United States export laws and regulations. With respect to Client’s use of the System, Client shall comply with all applicable domestic and international laws and regulations that apply to the System and Maintenance, including restrictions on destinations, end users and end use. None of the following shall apply to this Agreement: The United States Convention on the International Sale of Goods; the United Nations Convention on the Formation of Contracts for the International Sales of Goods; or the Uniform Computer Information Transactions Act, in whatever form enacted. This Agreement may be executed in counterparts, each of which shall be deemed an original, and each party thereto may become a party hereto by executing a counterpart hereof. This Agreement and any counterpart so executed shall be deemed to be one and the same instrument. The exchange (by facsimile or email transmission) of copies of executed counterparts of this Agreement shall be deemed execution and delivery thereof:
I. Initial Annual Maintenance Period Start Date:
III. Description of Annual Support, Services and Maintenance
In the event that 9STAR must travel to Client-controlled locations to provide Maintenance, Client shall pay (in addition to any Maintenance Fee if applicable) 9STAR’s reasonable expenses (including reasonable travel, lodging and meals) in connection therewith upon 9STAR’s invoice for same, provided that such travel and expenses have been pre-approved in writing in advance by Client and 9Star provides proper substantiation of same (e.g., receipts).
IV. SLA Credits:
If 9STAR fails to respond to Client’s request for Support as outlined in this agreement, then the Client is eligible to receive Service Credits. Service Credits are available in the form of additional equivalent hours added to the TERM at no additional charge. In order to receive any of the Service Credits described above, Client must notify the Company within thirty days from the time Client becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Client’s right to receive a Service Credit. To receive any SLA Service credit, Client must contact their assigned business specialist.