ELASTIC SSO SOFTWARE LICENSE AGREEMENT

YOU SHOULD READ THE FOLLOWING CAREFULLY AS IT CONSTITUTES A LEGALLY-BINDING AGREEMENT BETWEEN YOU AND US WHICH GOVERNS YOUR USE OF THE SOFTWARE.  “WE”, “US”, AND “OUR” REFER TO 9STAR RESEARCH, INC dba 9STAR. “You” and “Customer” refers to Cumberland Farms, Inc., together with each of their subsidiaries.

“Software” means the 9STAR Elastic SSO Enterprise Shibboleth SAML CAS Identity Provider (IDP) Software we provide to you in connection with this Agreement, along with all other related materials, including, but not limited to documentation of the Software (including such documentation as available on our website as well as on the Shibboleth website) and any updates to any of the foregoing which we make available to you.

“Agreement” means this 9STAR Elastic SSO Enterprise (IDP) Software License Agreement, any Exhibits and Appendices referred to herein, and any and all Quotes and Additional Terms, including without limitation, the 9Star Solution Quote dated Feb 2018 (“Quote”) and the Additional Terms attached thereto.

1. License Grants & Restrictions. In consideration of the licensing fees you pay to us, you are hereby granted a license to use the Software.  You are not granted any right to make any use of the Software except as specifically permitted by the License which you purchased. We agree to make the Software available to you pursuant to the terms of this Agreement and we further agree that this Agreement the Software shall perform as specified in this Agreement, the user documentation, the Software specifications, and the Service Level Agreement, all which are incorporated herein by reference.
2. Terms Applicable to License. The following terms in this Section 2 are applicable to you and your use of the Software, along with all other terms and conditions of this Agreement.

2.a.           Terms of License.  Subject to your payment of the applicable fee(s) therefor in accordance with the terms of the accepted price quote (the “Quote”), we hereby grant you a License to use the Software.  “Enterprise License” means a non-exclusive, non-transferable, right, subject to the applicable terms and conditions of this Agreement and the Quote, to install the Software for your own personal or business purposes only, on up to a maximum of six (6) server machines, and in connection with Unlimited number of Users and SAML Service Providers (SPs), and you can have one back-up copy.  If you wish to increase the scope of your usage rights (for example, to install the Software on additional servers or VM’s), you must purchase new additional licenses of the Software for an additional fee.  We will provide you with copies of all new versions, updates and upgrades of the Software (collectively “Upgrades”) without additional charge, promptly after commercial release.  Upon delivery to you, the Upgrades will become part of the Software and will be subject to the applicable provisions of this Agreement.

2.b.          Basic Technical Support, Bronze Subscription.  Subject to all terms and conditions of this Agreement, we will provide you, at no additional charge, with our basic technical support (“Bronze Subscription”) for help with the installation and configuration of the Software via email at support@9starinc.com. Responses to your email support questions will be provided within three (3) business days or less during the hours of 8:30 a.m. – 5:30 p.m. US CST (excluding weekends and holidays). Any additional technical support beyond that referenced in this Section will be provided to you only if we have entered into a separate written agreement (“Exhibit C”) for technical support with us, and any such additional technical support will be governed by that written agreement.  We are under no obligation under this Agreement whatsoever to provide, and shall have no liability under this Agreement whatsoever for, providing technical support or other assistance with respect to (i) any hardware, software (other than the Software), services or materials not provided to you by us, even if such hardware, software, services or materials interact with, or are necessary for the operation or use of, the Software, or (ii) the Software if the Software has been modified in any way except for modifications, updates, error corrections and/or technical support provided by us.  Customer will, at its own expense, respond to questions and complaints from end users or third parties relating to Customers’ or end users’ use of the Software. Customer will attempt to resolve support issues before escalating them to us.

2.c. Restrictions on Use. Unless we specifically agree in writing, Customer will not, and will not authorize or assist  a third party to : (a) sell, resell, lease, or the functional equivalent, the Software to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Software or any component; (c) attempt to create a substitute or similar software through use of, or access to, the Software;  or (d) use the Software to store or transfer, in violation of applicable law, any data that is controlled for export under U.S. Export Control Laws.

2.d.          Major Defects; Remedy.   If during the Term the Software fails to perform  substantially in accordance with the documentation therefor (a “Major Defect”) and you notify us of such failure or we otherwise become aware of such failure during the term of the license, , we will, subject to all terms and conditions of this Agreement, will repair the Major Defect at no charge to you, and our exercise of such repair with respect to Major Defects will be your sole and exclusive remedy for any failure of the Software to perform in accordance with the documentation therefor, provided that if we cannot repair the Major Defect within 30 days of your notice to us, you may terminate this Agreement and we will promptly refund to you that portion of the license fees you have paid for the period of the Term after the effective date of the notice.  We will have no liability under this Agreement for any failure of the Software to perform substantially in accordance with the documentation therefor if:  (i) such failure is not reported by you to us within ninety (90) days after you become aware of such failure; (ii) to the extent such failure is caused by any hardware, software (other than the Software), services or materials not provided to you by us; or (iii) the Software has been modified in any way except for modifications, updates, error corrections and/or technical support provided by us.

2.e.           License Fee, Annual Subscription.  The license fee for the use of the Software is a flat fee per year for the use of the Software purchased by you. The fee is payable to us annually as per terms advertized and agreed in the Quote.  You agree that we have previously disclosed this license fee to you and that you have agreed to pay the same, and that that license fee is incorporated into this Agreement by this reference. Failure to pay the License fee in a timely manner will result in the termination of the License to use the Software, provided that we have provided you written notice via email of such failure and 30 days to cure it. Once the License is terminated, you agree to stop using the Software for any purpose and agree to delete all copies of the Software along with the related configurations permanently, and notify us in writing via email upon request of the same within thirty (30) days of such termination.

2.f. Third Party Libraries and Components. The Software includes and leverages third party software, frameworks and libraries for proper functioning of the Software. Examples third party components includes: Apache or IIS web server, Linux and Windows OS server, Shibboleth, OpenSAML, Java, and others and each may be governed by their respective licenses.

3. License Restrictions. Except as expressly permitted under this Agreement or expressly authorized by us, you shall not: i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software; or ii) copy, reverse-engineer, decompile, modify or make derivative works based upon the Software.  For the avoidance of doubt, you may make copies of documentation relating to the Software for your internal use, including for use in training, set-up, installation and configuration. We expressly retain all rights in the Software not expressly granted to you hereunder.
4. Payment. All amounts of money specified to you do not include any sales, use or other excise taxes.  You are 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 you in connection with this Agreement or your possession or use of the Software, excluding taxes measured on our income.  You agree to hold us harmless for all claims and liability arising from your failure to report or pay such taxes (other than to the extent we are required by law to collect or pay same).
5. Confidentiality. (a) You acknowledge that the Software is, as between you and us, solely our property, constitutes a valuable asset and trade secret of ours, that we have proprietary rights and interests in and to the Software and that all information with respect thereto is confidential, including without limitation the terms of this Agreement and any pricing terms with respect thereto.  We claim and reserve all rights and benefits afforded under United States federal copyright law in the Software, except for the limited license granted to you hereunder.

(b)  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.

(c)  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.

(d) 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 5 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.

(e)  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.

(f)  This Section 5 shall survive the expiration or earlier termination of this Agreement.

6. Term of Agreement. The term of this Agreement commences upon the date you agree to be bound by this Agreement and continues for a period of one year (“Initial Term”) or until this Agreement is terminated as provided herein.  Thereafter, the parties may agree, in a writing executed by both parties, to successive renewal terms (each an “Additional Term” and together with the Initial Term, the “Term”.   In the event of any material breach of this Agreement by you or by us, the non-breaching party may terminate this Agreement on notice to the other party if the breaching party has failed to cure such breach within thirty (30) days after written notice of such breach by the non-breaching party.  We acknowledge that you have other termination rights as set forth in Section 11 of this Agreement. Upon any termination of this Agreement for any reason whatsoever:  (i) all licenses to you hereunder shall immediately terminate, (ii) you will promptly destroy all copies of the Software in your possession, custody or control and certify to us in writing, upon request, that you have done same; and (iii) all amounts due from you hereunder shall immediately become due and payable, and to the extent such termination is due to our material breach or we terminate not due to your material breach, then we will refund that portion of the license fees you have paid for the period of the Term after the effective date of termination.
7. Warranties; Disclaimer of Warranties. We represent, warrant and covenant that (i) we have and will have all necessary lawful rights and authority to enter into this Agreement, perform our obligations hereunder and to grant the licenses and rights granted to you under this Agreement, (ii) we will not knowingly breach any contracts with other entities by entering into this Agreement, (iii) we will comply with all laws, statutes, regulations, rules and ordinances (“Laws”) applicable to our performance of our obligations under this Agreement, (iv) the Software, with all other related materials, including documentation, and any updates to any of the foregoing which we make available to you (a) when used in accordance with this Agreement does not knowingly 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 knowingly 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).  THE WARRANTIES HEREIN SET FORTH ARE MADE TO AND FOR THE BENEFIT OF YOU ONLY AND DO NOT RUN TO THE BENEFIT OF ANY THIRD PARTY WHATSOEVER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER CONCERNING ANY PRODUCT OR SERVICE, AND EACH PARTY HEREBY EXCLUDES AND DISCLAIMS, WITHOUT LIMITATION, ANY AND ALL WARRANTIES NOT EXPRESSLY SET FORTH IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED,  INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT AND ANY EXPRESS OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR FROM USAGE OF THE TRADE. YOU ACKNOWLEDGE THAT WE HAVE NOT REPRESENTED OR WARRANTED THAT ANY PRODUCT OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  If the Software becomes, or in either party’s reasonable opinion is likely to become, the subject of any claim, suit or proceeding arising from or alleging infringement of any intellectual property right, or in the event of any adjudication that the Software infringes any such right, we, at our sole cost and expense, will promptly take the following actions: (i) secure for you the right to continue using the Software; or (ii) if we are unable to secure the license, then replace or modify the Software to make it non-infringing, provided such modification or replacement will not materially degrade any functionality relied upon by you.
8. Limitation on Liability. (a) EXCEPT FOR BREACHES OF SECTION 5 OR OBLIGATIONS UNDER SECTION 9, 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 OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL A PARTY’S LIABILITY EXCEED AN AMOUNT EQUAL TO THE PARTY”S AVAILABLE INSURANCE.  (b) EXCEPT FOR BREACHES OF SECTION 5 OR OBLIGATIONS UNDER SECTION 9, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS 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 you. They also may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.
9. Indemnification. (a) You shall defend, indemnify and hold harmless us and our successors or assigns (if permitted hereunder), subsidiaries, officers, directors, employees, agents, and independent contractors (each individually a “9Star Indemnitee” and 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 to the extent arising from or in connection with (i) your breach of any provision of this Agreement, and/or (ii) any fraud, gross negligence or willful misconduct by or on behalf of Customer in connection with this Agreement or its performance hereunder. All 9Star Indemnitees are expressly made third party beneficiaries of this Section 9.

(b)  We shall defend, indemnify and hold harmless you and your successors or assigns (if permitted hereunder), subsidiaries, officers, directors, controlling shareholders, employees, agents, and independent contractors (each individually a “Customer Indemnitee” and collectively “Customer Indemnitees”) against any and all third-party Claims suffered by such Customer Indemnitees arising from or in connection with (i) our breach of any provision of this Agreement, (ii) any fraud, gross negligence or willful misconduct by or on behalf of us in connection with this Agreement or its performance hereunder, (iii) any actual or alleged infringement of the intellectual property, privacy or other rights of any third party by the Software, or any  other related materials, including documentation, and any updates to any of the foregoing which we make available to you (except to the extent used by Customer or any of its Customer Indemnitees in form or substance in a manner not permitted by you), (iv) our breach of any contracts with other entities by entering into this Agreement, and/or (v) the violation of any applicable Laws by the Software, or any  other related materials, including documentation, and any updates to any of the foregoing which we make available to you. All Customer Indemnitees are expressly made third party beneficiaries of this Section 9.

(c)  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 9 are the parties’ sole and exclusive obligations and their sole and exclusive remedies for the Claims described in this Section 9.

(d)  This Section 9 will survive the expiration or earlier termination of this Agreement for any reason whatsoever.

10. Audit. We may, at our own expense upon not less than thirty (30) days’ notice in writing to you and during your normal business hours, audit your performance under this Agreement (including the usage and location of Software).  Such audit will not unreasonably interfere with your business activities. We will not conduct more than one audit during the term.
11. General. 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 and your use of the Software shall be governed solely by the laws of the State of Texas (except any of such laws of the State of Texas as would apply the laws of any other jurisdiction) and controlling United States federal law. 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 Software to perform substantially in accordance with its specification and documentation for a period of more than fifteen (15) consecutive days, then upon written notice to us Customer may terminate this Agreement. This Agreement constitutes the entire agreement and understanding between you and us 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 Software may be subject to United States export laws and regulations. With respect to your use of the Software, you shall comply with all applicable domestic and international laws and regulations that apply to the Software, 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.
12. Insurance. We now carry and agree we will continue during the term of this Agreement to carry, as a minimum, insurance as shown in the attached insurance certificate Exhibit, which is incorporated herein, and made a part hereof.

The parties hereto acknowledge that they have read this Agreement, understand it, and agree to be bound by its terms.  Each representative signing below warrants that he or she is duly authorized to bind his or her respective party.