Software License Agreement

This Software License Agreement is between StarQuest Ventures Inc d/b/a Stelo (“Stelo”) and Licensee. This Software License Agreement covers the licensed software and accompanying documentation (collectively the “Product”). Capitalized terms used in this Software License Agreement and not otherwise defined herein shall have the same meaning as set forth in the Sales Order.

STELO IS WILLING TO LICENSE THE PRODUCT TO LICENSEE ONLY UPON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY PURCHASING, LICENSEE IS CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.  LICENSEE’S USE OF THE PRODUCT INDICATES LICENSEE’S ASSENT TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW.

1. GRANT OF LICENSE.

1.1 License Grant. Subject to the terms of this Agreement, Stelo grants to Licensee a nonexclusive, nontransferable license to install and use the Product for Licensee’ internal use and solely in accordance with the Sales Order accompanying this Agreement.

1.2 License Conditions.(a) Ownership. Stelo retains all rights, title, and interest in and to the Product and any Derivative Works (“Derivative Works” being defined as any work based on or incorporating all or any portion of a Product, including mechanical or electronic reproduction, translation, adaptation, change of media or other form, which would represent a violation of Stelo’s, or its supplier’s, copyright in the Product if done without Stelo’s consent) of the Product. Stelo’s rights in the Products includes all Intellectual Property Rights. “Intellectual Property Rights” means patents, inventions, utility models, trademarks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered, and including applications for registration of any of them), rights in know-how, moral rights, trade secrets and rights of confidence and all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may exist anywhere in the world. Stelo shall exclusively own any and all developments, inventions and work product created under any professional services, including but not limited to Standard Support Services, Extended Support Services, installation services and Product customization services (collectively, “Services”). Licensee hereby assigns to Stelo all Intellectual Property Rights in Licensee’s, and its end users’, suggestions, enhancement requests, recommendations and other feedback relating to the Product and Services. All rights not expressly granted to Licensee herein are expressly reserved by Stelo.

(b) Copying. Licensee may make a reasonable number of copies of each Product solely for back-up purposes. All copies of the Product and Stelo Information, as defined below, must contain Stelo’s copyright notice.

(c) Application Service Provider. Licensee may not use the Product on an application service provider, in connection with a service bureau or for the benefit of any third party.

(d) Reverse Engineering. Licensee may not attempt to decompile, disassemble or reverse engineer any Product.

(e) Acceptance. Each Product will be deemed accepted by Licensee upon receipt of a license key delivered by e-mail from Stelo to the Licensee, which allows Licensee to use the Product.

1.3 Confidentiality. Licensee will use no less than a reasonable standard of care to prevent unauthorized access to or disclosure of the Stelo Information (as defined in Section 6.3 below). Licensee will notify and cooperate with Stelo in enforcing Stelo's rights if it becomes aware of a threatened or actual violation of Stelo's confidentiality requirements by a third party.

2. WARRANTY AND DISCLAIMER.

2.1 Warranty. Stelo warrants that, on the Product receipt, and for a period of thirty (30) days thereafter, the Product will substantially conform to its documentation. Licensee may test the Product for up to thirty (30) days from receipt of the Product to determine whether it performs in accordance with its documentation. Licensee may notify Stelo in writing of its intent to return the Product for non-conformance during this period. Upon receipt of this notice, Stelo will have an additional thirty (30) days to cure the non-conformance. If Stelo is unable to cure the non-conformance, Licensee may return the nonconforming Product, and will immediately cease using the Product. The license will be considered terminated with regard to the returned Product. Stelo will refund fees paid, if any, for returned Product.

2.2 Disclaimer. EXCEPT AS PROVIDED ABOVE,

STELO EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, CONDITIONS AND UNDERTAKINGS WITH RESPECT TO THE PRODUCT AND DOCUMENTATION, STELO INFORMATION AND THEIR PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

3. LIMITATION OF LIABILITY. Stelo's liability for any cause of action arising under or in connection with this Agreement or otherwise (whether arising in tort, contract or otherwise) will be limited to the amount of fees Licensee actually paid for the Product giving rise to the cause of action in the twelve (12) months preceding such cause of action. Under no circumstances will either party be liable for any incidental, special, punitive, or consequential damages arising out of or in connection with this Agreement or otherwise, including but not limited to, liability for lost profits, business interruption, or loss of business.
4. SUPPORT. Licensee may elect to receive Stelo's Standard Support Services and/or Extended Support Services by paying Stelo's then-current fees for such Services in accordance with the accompanying Renewal Notice and/or entering into the applicable Standard Support Services Agreement and/or Extended Support Services Agreement.
5. INDEMNITIES.

5.1 Indemnification By Stelo. Stelo will, at its expense, defend and indemnify Licensee against any actual or threatened action or proceeding by a third party (a ”Claim") that a Product developed by Stelo infringes a patent or copyright of any third party in any country authorized for that Product's use and will pay all losses, liabilities, damages and claims and all related costs and expenses (including reasonable attorneys' fees, litigation, settlement, judgment, interest and penalties) either awarded by a court or agreed to in an out-of-court settlement approved in advance in writing by Stelo. Stelo may, at its option, either procure for Licensee the right to continue using the Product or replace or modify the Product so that it becomes non-infringing. If, in Stelo's reasonable business or legal opinion, neither option is feasible, Licensee will return the infringing Product to Stelo, the license will be terminated and Stelo will reimburse Licensee a pro rata portion of the license fees paid for the returned Product, depreciated over a four-year life. If Licensee elects to continue using the Product rather than return it to Stelo, Stelo will have no further liability to Licensee. Stelo will not indemnify Licensee for infringement if Licensee has modified the Product without Stelo's assistance, or if Licensee uses the Product in conjunction with software, hardware or other equipment not provided by Stelo, if the use of the Product as originally provided or alone would not be infringing.

5.2 Indemnification Procedures. If Licensee becomes aware of a claim, which may require indemnification, Licensee will promptly notify Stelo in writing of the claim and will allow Stelo to assume sole and full control of the defense and settlement of the claim. Licensee will provide Stelo with reasonable assistance and information necessary to defend and settle the claim. Licensee’s counsel will have the right to participate in the defense and settlement of the claim, at Licensee’s own expense.

6. TERM AND TERMINATION.

6.1 License Term. This Agreement commences upon purchase and continues for the License Term specified in the Sales Order.

6.2 Termination for Breach. Stelo may terminate this Agreement or any license to a Product by giving written notice to the Licensee, if the Licensee fails to remedy any breach of this Agreement within thirty (30) days after receipt of notice of breach and intent to terminate.

6.3 Effect of Termination. On termination of this

Agreement or any license to any Product, the following will occur:

(a) All rights granted to the affected Product(s), and all related documentation, and information furnished by Stelo in oral, written or machine-readable form, which (i) has value because it is not generally known, and (ii) Stelo uses reasonable efforts to protect ("Stelo Information"), will immediately terminate.

(b) Licensee must either return to Stelo the affected Product(s), and all related documentation, Derivative Works and Stelo Information, or destroy them and certify such destruction to Stelo.

(c) All rights and obligations granted under Sections 1.3, 2, 6, 7, and 8 will survive. The confidentiality obligations of Section 1.3 will survive for three (3) years from the termination date of this Agreement; provided, that, to the extent Stelo has disclosed information under Section 1.3 or otherwise to Licensee that rises to the level of a trade secret under law, Licensee agrees to protect such trade secret(s) for so long as the information qualifies as a trade secret under applicable law.

(d) Neither party will be liable to the other for damages, losses, costs or expenses of any kind due to the termination of this Agreement including those arising from the loss of prospective sales, or expenses incurred or investments made in connection with establishing, developing or maintaining either’ party's business.

(e) Except as provided in Section 6.3(d), termination will not affect any claim, liability or right of Licensee or Stelo arising prior to the termination.

7. AUDIT

7.1 In order for Stelo to confirm Licensee’s ongoing compliance with Section 1.1 above during the License Term, (A) Licensee shall grant Stelo the right, directly or through an independent third party, to inspect the premises of Licensee’s facilities, including without limitation Licensee’s computer servers, hard drives, laptops, and other computing devices utilized by Licensee in connection with the Product, and (B) Licensee shall comply with Stelo’s self-audit reporting requests by returning to Stelo, in a form acceptable to Stelo, a report indicating that exact quantities and scope of the Licensed Software that Licensee has deployed as of the date of such report.

7.2 If it is determined that Licensee is utilizing the Product beyond that which is licensed in the Sales Order, Stelo, in its sole discretion, shall have the right to: (A) terminate the license upon written notice to Licensee; or (B) allow Licensee thirty (30) days to deliver payment of such underpayment based on Stelo’s then-current license fees plus a penalty fee of twenty percent (20%).

7.3 All books and records relative to Licensee’s obligations under this Section 7 shall be maintained and made accessible to Stelo for inspection at a location in the United States for at least three years after termination of this Agreement. Stelo shall have the right to make any copies thereof. All such books and records shall be deemed “Stelo Information” pursuant to Section 6.3 of this Agreement.

7. GENERAL.

8.1 Restricted Rights Legend - U.S. Government. The Product acquired by the United States of America, its agencies and/or instrumentalities are and will be provided with RESTRICTED RIGHTS FOR SOFTWARE DEVELOPED AT PRIVATE EXPENSE. Use, duplication or disclosure by the U.S. government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 48 C.F.R. 252.227 or DFAR 52.227, as applicable.

8.2 Export. Licensee will not export the Product in violation of the export laws of the United States or of any other country.