STELLIUM SERVICES GENERAL TERMS AND CONDITIONS – STELLIUM AS A SUBCONTRACTOR (“GTCs”)

1.DEFINITIONS

1.1.“Affiliate” means any legal entity in which STELLIUM, Prime Contractor or Customer, directly or indirectly, holds more than 50% of the entity’s share or voting rights or such legal entity is Controlled by the Customer. “Control” means in reference to a legal entity is defined as the ability to solely direct the management of such legal entity and the right to appoint or remove the majority of the board of directors (where applicable). Any legal entity will be considered an Affiliate for only such time as that interest or Control is maintained.

1.2.“Agreement” means the agreement as defined in the applicable Order Form.

1.3.“Authorized User” means any individual to whom Customer grants access authorization to use the Cloud Service or STELLIUM Software under the License Agreement.

1.4.“Change Request” means a change request made in accordance with Section 4 below and in the form made available by STELLIUM from time to time or included in the Order Form.

1.5. “Cloud Service” means any distinct subscription based, hosted, supported and operated on-demand solution provided by STELLIUM, or a STELLIUM Affiliate under an Order Form for Cloud Services.

1.6. “Confidential Information” means all information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its Representatives designates as confidential, internal and / or proprietary at the time of disclosure; (ii) or should reasonably be understood to be confidential at the time of disclosure given the nature of the information and the circumstances surrounding its disclosure.

1.7. “Consultants” means employees and third-party contractors which STELLIUM utilizes to provide Services to Prime Contractor.

1.8. “Customer” means the end customer of the Prime Contractor, with such Customer to be identified in the relevant Order Form.

1.9. “Customer Data” means any content, materials, data and information that Prime Contractor, Customer or Customer’s Authorized Users enter into the production system of a Cloud Service or that Prime Contractor or Customer derives from its use and stores in the Cloud Service (e.g. Customer-specific reports). Customer Data does not include any component of the Cloud Services, Services, or STELLIUM Materials. Customer Data and its derivatives will not include STELLIUM’s Confidential Information.

1.10. “Deliverables” means those specific Work Products which are explicitly identified as a “Deliverable” under the applicable Order Form.

1.11. “Export Laws” means all applicable import, export control and sanctions, including but without limitation, the laws of the United States, the EU, and Germany.

1.12. “Feedback” means input, comments or suggestions from or on behalf of the Prime Contractor or Customer or any of their Affiliates to STELLIUM, or any other STELLIUM Affiliate, or any representative thereof regarding STELLIUM’s business and technology direction or the possible creation, modification, correction, improvement or enhancement of the Cloud Services, STELLIUM Software or Services (as applicable) purchased by the Prime Contractor or Customer under the Agreement.

1.13. “Intellectual Property Rights” means patents of any type, design rights, utility models or other similar invention rights, copyrights and related rights, trade secret, mask right, know-how or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, whether registered or unregistered, including applications (or rights to apply) and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.

1.14. “License Agreement” means the agreement between STELLIUM (or a STELLIUM Affiliate) and the Customer under which Customer procured the rights to use STELLIUM Software or a Cloud Service.

1.15. “Material Defect” means the Deliverable fails to substantially comply with the applicable and corresponding acceptance criteria for that Deliverable set forth in the Order Form.

1.16. “Order Form” means the applicable ordering document for Services that references these GTCs.

1.17. “Representatives” means a party’s Affiliates, employees, contractors, sub-contractors, legal representatives, accountants or other professional advisors.

1.18. “STELLIUM Materials” means any materials (including statistical reports) provided, developed or made available by STELLIUM (independently or with Prime Contractor’s or Customer’s cooperation) in the course of performance under the Agreement. This includes but is not limited to Deliverables and the delivery of any Services to the Prime Contractor. STELLIUM Materials do not include the Customer Data or Prime Contractor Confidential Information.

1.19. “STELLIUM Software” means:

1. software products licensed and delivered to Customer as specified in software order forms between STELLIUM (or an STELLIUM) and Customer;
2. any new releases, updates or versions thereof made available under a License Agreement for STELLIUM Software and Support; and

iii. any complete or partial copies of any of the foregoing.

1.20. “Scope Document” means the document (if any) that is provided with and becomes part of the Order Form and which defines sometimes in conjunction with a Service Description (as applicable) the Services to be provided.

1.21. “Services” mean those service(s) as further defined by the specific Service Descriptions and/or Scope Documents provided to Prime Contractor under an Order Form that references these GTCs.

1.22. “Service Description” means pre-defined descriptions of services found at www.stellium.com current as of the effective date of the Order Form which in conjunction with a Scope Document (if any) defines the Services to be provided and becomes part of the Order Form.

1.23. “Taxes” means local sales tax, value added tax, withholding tax, use tax, property tax, excise tax, service tax or similar taxes.

1.24. “Work Product” means any work product or tangible results produced by or with STELLIUM, including works created for or in cooperation with Prime Contractor or Customer.

2. PROVISION OF SERVICES

2.1. Performance

2.1.1. STELLIUM will provide the Services in accordance with the Order Form and these GTCs.

2.1.2. If any Service, in whole or in part, cannot be provided by STELLIUM due to a Prime Contractor issue or a Customer issue and Prime Contractor fails to provide STELLIUM with reasonable advance notice, the time spent by the Consultants on such Service will be charged to Prime Contractor.

2.2. Time not of Essence

2.2.1. All dates with respect to performance of the Services are estimated and time shall not be deemed of the essence.

2.3. Acceptance

2.3.1. If the applicable Order Form expressly states that the Deliverables are subject to acceptance and does not otherwise specify an acceptance procedure, the following acceptance procedure applies:

1. a) Upon delivery by STELLIUM of a completed Deliverable, Prime Contractor shall have 10 calendar days to accept or reject the Deliverable due to a Material Defect based on the acceptance criteria set forth in the Order Form for that Deliverable (“Acceptance Period”).
2. b) If the relevant Deliverable passes the acceptance criteria set forth in the Order Form, Prime Contractor shall accept the Deliverable. Acceptance will not be unreasonably withheld by Prime Contractor. If Prime Contractor notifies STELLIUM that it has rejected the Deliverable due to a Material Defect, Prime Contractor shall provide written notice, within such 10-day period, specifying the basis of the Material Defect.

1. c) STELLIUM shall have a reasonable period to cure and redeliver the Deliverable for an additional Acceptance Period. If Prime Contractor fails to reject any Deliverable within the Acceptance Period, in a written document specifying the Material Defect, Prime Contractor shall be deemed to have accepted such Deliverable as of the 10th day of the Acceptance Period.
2. d) Upon acceptance of a Deliverable, all Services associated with such Deliverable shall be deemed accepted and STELLIUM shall have no further obligation with respect to an accepted Deliverable. Prime Contractor shall not make productive use and shall procure that Customer does not make productive use of a Deliverable unless it has been accepted by Prime Contractor (either expressly or by passage of time).
3. e) If the applicable Order Form does not expressly specify acceptance criteria for a Deliverable, such Deliverable will be deemed accepted upon delivery.
4. PRIME CONTRACTOR’S GENERAL RESPONSIBILITIES

3.1. Access, System Security and Data Safeguards

3.1.1. Prime Contractor will make the necessary arrangements to allow STELLIUM to perform the Services, including the availability of consistent, stable and fast remote connectivity and the necessary authorizations for remote access to Customer’s systems.

3.1.2.    If the Services are performed at Prime Contractor’s or Customer’s site, Prime Contractor agrees to provide necessary access to such site including appropriate access to Prime Contractor or Customer premises, computer systems and other facilities.

3.1.3. When STELLIUM is given access to Prime Contractor’s or Customer’s systems and data, STELLIUM shall comply with Prime Contractor’s reasonable administrative, technical, and physical safeguards to protect such data and guard against unauthorized access, that the Prime Contractor has notified to STELLIUM with reasonable prior written notice of. In connection with such access, Prime Contractor shall be responsible for providing Consultants with user authorizations and passwords to access its systems and revoking such authorizations and terminating such access, as Prime Contractor deems appropriate from time to time. Prime Contractor shall not grant STELLIUM access to Prime Contractor or Customer systems or personal information (of Prime Contractor, Customer or any third party) unless such access is essential for the performance of Services under the Agreement. Prime Contractor shall ensure Customer shall not store any personal data in non-production environments. No breach of this provision shall be deemed to have occurred in the event of STELLIUM’s non-conformance with the aforementioned safeguard but where no personal information has been compromised.

3.2. Prime Contractor Cooperation

3.2.1. Prime Contractor shall provide and make available all Prime Contractor personnel as may be further addressed in an applicable Order Form or that STELLIUM reasonably requires in connection with performance of the Services. Prime Contractor shall procure the availability of any Customer personnel that STELLIUM reasonably requires in connection with performance of the Services.

3.2.2. Prime Contractor shall appoint a contact person with the authority to make decisions and to supply STELLIUM with any necessary or relevant information expeditiously. Prime Contractor may instead appoint an employee of the Customer, however subject always to the condition that the employee of the Customer shall be given full authority to make decisions on behalf of the Prime Contractor in relation to this Agreement and as required by this section. In such a case, STELLIUM shall be entitled to fully rely on the decisions of the employee of the Customer as an authorized representative of the Prime Contractor.

3.3. Use Rights Prerequisites

3.3.1. Prime Contractor shall ensure it has all necessary use rights for the STELLIUM Software or Cloud Service as well as any relevant third party license or use rights required to perform the Services. Prime Contractor agrees to ensure that Customer has all necessary license rights including third party license rights required for STELLIUM’s performance of the Services.

4. CHANGE REQUEST PROCEDURES

4.1. Change Requests

4.1.1. Either party can request changes to the Services.

4.1.2. STELLIUM is not required to perform under a Change Request prior to the execution by the parties of the applicable Change Request.

5. SATISFACTION WITH PERSONNEL

If at any time Prime Contractor or STELLIUM is dissatisfied with the material performance of an assigned Consultant or a Prime Contractor project team member, the dissatisfied party shall promptly report such dissatisfaction to the other party in writing and may request a replacement. In the case of STELLIUM dissatisfaction with a Customer employee, STELLIUM shall report such dissatisfaction to the Prime Contractor. The other party shall use its reasonable discretion in accomplishing any such change (which also, in the case of STELLIUM, shall be subject to staffing availability).

6. FEES AND TAXES

6.1. Fees and Payment

6.1.1. Prime Contractor shall pay fees as stated in the Order Form. If Prime Contractor does not pay any fees (and Taxes) in accordance with the terms of the Agreement then, in addition to any other available remedies, STELLIUM may suspend the provision of Services until payment is made. STELLIUM shall provide Prime Contractor with prior written notice before any such suspension. Any fees (and Taxes) not paid when due shall accrue an administrative fee at the rate of 12% per annum but not to exceed the maximum amount allowed by law. Purchase orders are for administrative convenience only. STELLIUM may issue an invoice and collect payment without a corresponding purchase order.

6.1.2. STELLIUM’s remuneration (or STELLIUM’s receipt of such remuneration) shall not in any way be conditioned upon the Prime Contractor receiving payment from the Customer.

6.2. Taxes

1. a) All fees and other charges are subject to applicable Taxes, which will be charged in addition to fees under the Agreement.

STELLIUM and Customer agree to comply with the applicable Tax law in force for the duration of the Agreement. Any applicable direct pay permits or valid tax-exempt certificates must be provided to STELLIUM prior to the execution of this Agreement.

1. b) Withholding taxes. If Customer is legally required to withhold or deduct and pay any Taxes or duty to a local tax office before Customer remits from any payment which is due to STELLIUM, Customer shall promptly notify STELLIUM of such requirement and provide STELLIUM with evidence of receipt of the tax payment by the relevant tax authority any together with such other information or documents as STELLIUM may reasonably require for purposes of obtaining any available tax credit. Where Customer does not provide such evidence to STELLIUM, Customer shall be liable to pay STELLIUM the amount so deducted upon demand.

Customer hereby agrees to reimburse STELLIUM for any taxes and tax related costs, administrative fees and penalties paid or payable by STELLIUM as a result of Customer’s non-compliance in regard to this Section or delay with its responsibilities herein.

7. TERM AND TERMINATION

7.1. Term of the Agreement

The Agreement becomes effective as of the Effective Date specified in the Order Form and shall remain in effect until the end of the term as specified in the Order Form or on completion of the Services in accordance with the Agreement, unless otherwise terminated earlier by either party in accordance with these GTCs.

7.2. Termination of the Agreement

7.2.1. Either party may terminate the Agreement:

1. a) upon 30 days’ prior written notice of the other party’s material breach of any provision of the Agreement (including Prime Contractor’s failure to pay any money due hereunder within 30 days of the payment due date) unless the breaching party has remedied such breach during such 30 day period.
2. b) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches sections 9 of these GTCs.

7.2.2.    STELLIUM may terminate the Agreement immediately if Prime Contractor breaches sections 8, 15.4 or 15.6 of the GTCs.

7.2.3. Either party may terminate the Agreement (excluding agreements for fixed-price Services, Premium Engagement Services and subscriptions or monthly reoccurring Services) upon 30-days prior written notice to the other party, unless otherwise agreed in a Services Order Form.

7.2.4. The parties agree there is no requirement to obtain a court order to terminate the Agreement for any reason specified under this Agreement.

7.3. Effect of termination

7.3.1.    Prime Contractor shall be liable for payment of all costs, fees and expenses up to the effective date of termination for:

1. a) any completed, partially completed or scheduled Services from any phase or milestone;
2. b) any reasonable committed costs or expenses; and
3. c) any non-refundable travel costs including visa costs and related expenses.

7.3.2. The termination of any particular Service in accordance with this Section 7 shall not cause or result in termination of any other Services ordered under the same Order Form, nor shall termination of an Order Form or any particular Service under it result in termination of any separate Services Order Form between the parties.

7.4. Survival

Sections 1, 6, 7, 8, 9, 11, 13, 14 and 15 of these GTCs survive the expiry or termination of the Agreement.

8. INTELLECTUAL PROPERTY RIGHTS

8.1. STELLIUM Ownership

8.1.1. Except for any rights expressly granted to Prime Contractor under the Agreement, STELLIUM, STELLIUM SE, their Affiliates or licensors own all Intellectual Property Rights in and any derivative works of:

1. a) STELLIUM Materials; and
2. b) any Services, Deliverables and Work Products (including any techniques, knowledge or processes of the Services or Deliverables) whether or not developed for the Prime Contractor or Customer.

8.2. Prime Contractor shall execute such documentation and take such other steps as is reasonably necessary to secure STELLIUM’s or STELLIUM SE’s title over such rights.

8.3. Protection of Rights

8.3.1. Except for any rights expressly granted to Prime Contractor under the Agreement, Prime Contractor shall not remove STELLIUM’s copyright and authorship notices.

8.4. Any Services, Deliverables, and Work Products provided by STELLIUM to Prime Contractor prior to the execution of an applicable Order Form or a Change Request are the sole property and Confidential Information of STELLIUM and shall be governed by the terms of the Agreement. If no Order Form is completed, all Services, Work Products and Deliverables must be returned or deleted and must not be used.

8.5. Provided amounts due under an Order Form are paid in full in accordance with the terms of the Agreement, and all claims have been satisfied, Prime Contractor will be granted a non-exclusive, non-transferable license to use any Deliverables and Work Products provided to it by STELLIUM under a relevant Order Form under the Agreement solely to permit Prime Contractor to sub-license such STELLIUM Deliverables and Work Product to the Customer in order to run Customer’s and its Affiliates’ internal business operations. This sub-license shall be granted for the same term and to the same extent as Customer is granted a right to use the STELLIUM Software or the Cloud Service under the License Agreement. The foregoing will be subject to (i) Prime Contractor’s compliance with the terms of this Agreement; and (ii) Customer compliance with the terms of the License Agreement.

8.6. Prime Contractor must immediately notify STELLIUM in writing if any third party gains unauthorized access to STELLIUM proprietary materials or Confidential Information. Prime Contractor shall take all reasonable steps to stop such unauthorized access. Prime Contractor shall also undertake such notification and informing duties on behalf of the Customer and shall ensure that the Customer takes all necessary steps to stop such unauthorized access.

9. CONFIDENTIALITY

9.1. Use of Confidential Information

9.1.1. The receiving party shall:

1. a) maintain all Confidential Information of the disclosing party in strict confidence, taking steps to protect the disclosing party’s Confidential Information substantially similar to those steps that the receiving party takes to protect its own similar Confidential Information, which shall not be less than a reasonable standard of care;
2. b) not disclose or reveal any Confidential Information of the disclosing party to any person other than its Representatives whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in this Section 9;
3. c) not use or reproduce any Confidential Information of the disclosing party for any purpose outside the scope of the Agreement; and
4. d) retain any and all confidential, internal or proprietary notices or legends which appear on the original and on any reproductions.

9.1.2.    Prime Contractor shall treat all information about the Agreement, its terms and conditions, the pricing or any other facts relating thereto as Confidential Information of STELLIUM and protect the same from disclosure to third parties in accordance with Sections 9.1.1 and 9.2.

9.1.3.    Confidential Information of either party disclosed prior to execution of the Agreement will be subject to this Section 9.

9.2. Compelled Disclosure

The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law, regulation, court order or regulatory agency; provided, that the receiving party required to make such a disclosure uses reasonable efforts to give the disclosing party reasonable prior notice of such required disclosure (to the extent legally permitted) and provides reasonable assistance in contesting the required disclosure, at the request and cost of the disclosing party. The receiving party and its Representatives shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally requested to be disclosed and shall request that all Confidential Information that is so disclosed is accorded confidential treatment.

9.3. Exceptions

9.3.1.    The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that:

1. a) is independently developed by the receiving party without use or reference to the disclosing party’s Confidential Information;
2. b) has become generally known or available to the public through no breach by the receiving party;
3. c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions;
4. d) is lawfully acquired free of restriction by the receiving party from a third party having the right to furnish such Confidential Information; or
5. e) the disclosing party agrees in writing is free of confidentiality restrictions.

9.4. Destruction and Return of Confidential Information

9.4.1. Upon the disclosing party’s request or the effective date of expiration or termination of the Agreement, except to the extent it is legally entitled or required to retain the Confidential Information, the receiving party shall promptly destroy or return to the disclosing party, at the disclosing party’s election, all materials containing the disclosing party’s Confidential Information and all copies thereof, whether reproductions, summaries, or extracts thereof or based thereon (whether in hard-copy form or on intangible media), provided, however that:

1. a) if a legal proceeding has been instituted to seek disclosure of the Confidential Information, such material shall not be destroyed until the proceeding is settled or a final judgment with respect thereto has been rendered; and
2. b) the receiving party shall not, in connection with the foregoing obligations, be required to identify or delete Confidential Information held in archive or back-up systems, that are not generally accessible, in accordance with general systems archiving or backup policies.

9.4.2. The obligation in this Section 9.4 shall not apply to Work Products provided by STELLIUM to Prime Contractor under any Services (if applicable), unless the Agreement is terminated by STELLIUM in accordance with Section 7.2.1 or 7.2.2. above.

10. PUBLICITY

Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Prime Contractor will obtain Customer’s consent for STELLIUM to use Customer’s name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of STELLIUM’s marketing efforts (including reference calls and stories, press testimonials, site visits, STELLIUMPHIRE participation). Prime Contractor agrees that STELLIUM may share information on Prime Contractor with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Prime Contractor employee contact information with STELLIUM.

11. FEEDBACK

11.1. Prime Contractor may, at its sole discretion and option, provide STELLIUM with Feedback. In such instance, STELLIUM, STELLIUM SE and its Affiliates may in its sole discretion retain and freely use, incorporate or otherwise exploit such Feedback without restriction, compensation or attribution to the source of the Feedback.

12. WARRANTY

12.1. Good industry practices

12.1.1. STELLIUM warrants that:

1. a) its Services will be performed in a professional workman-like manner by Consultants with the skills reasonably required for the Services; and
2. b) for forty-five (45) days following provision of the Service, the Deliverables will materially conform with the applicable specifications for that Deliverable. For clarity, the warranty period for Deliverables (if any) resulting from any subscription-based Services will in no event exceed the termination date of the subscription based Services.

12.1.2. STELLIUM does not warrant error-free or uninterrupted operation of any Service or Deliverable or that STELLIUM will correct all non-conformities.

12.2. Notification

Prime Contractor shall notify STELLIUM within forty-five (45) days of provision of the Service or Deliverable in writing of the alleged warranty breach and provide STELLIUM with a precise description of the problem and all relevant information reasonably necessary for STELLIUM in order to rectify such warranty breach.

12.3. Remedy

12.3.1. Provided Prime Contractor has notified STELLIUM in accordance with Section 12.2 of a warranty breach and STELLIUM validates the existence of such warranty breach, STELLIUM will, at its option:

1. a) re-perform the applicable Services or Deliverable; or
2. b) refund the fee paid or reallocate quota for the specific non-conforming Service or Deliverable. This is Prime Contractor’s sole and exclusive remedy for a warranty breach.

12.4. Exclusions

This warranty shall not apply:

1. a) if the Services, Work Product or any Deliverables are not used in accordance with any applicable documentation provided; or
2. b) if the alleged warranty breach is caused by a modification to the Deliverable, by Prime Contractor, Customer or third-party software.

12.5. Except for the warranties, terms, conditions, representations or statements expressly set out in this Agreement, all other warranties, terms, conditions, representations or statements which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law, custom or otherwise, are hereby excluded to the fullest extent permitted by law, including any implied conditions, warranties or other terms as to quality or fitness for purpose or non-infringement of any third party’s rights or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of STELLIUM or product roadmaps in obtaining the Services.

13. THIRD PARTY CLAIMS

13.1. Claims Brought Against Prime Contractor

13.1.1. STELLIUM will defend Prime Contractor against claims brought against Prime Contractor by any third-party alleging that Prime Contractor’s pass-on of the Deliverables infringes or STELLIUM a patent claim, copyright or trade secret right. STELLIUM will indemnify Prime Contractor against all damages finally awarded against Prime Contractor (or the amount of any settlement STELLIUM enters into) with respect to these claims.

13.1.2. STELLIUM’s obligation under Section 13.1.1 will not apply if the alleged claim results from:

1. a) use of the Deliverables in conjunction with any other software, services or any product that STELLIUM did not provide;
2. b) use of the Deliverable provided for no fee;
3. c) Prime Contractor´s failure to timely notify STELLIUM in writing of any such claim if STELLIUM is prejudiced by Prime Contractor’s failure to provide or delay in providing such notice;
4. d) modification of the Deliverable by Prime Contractor or Customer or by a third party on behalf of Prime Contractor or Customer;
5. e) anything that Prime Contractor provides to STELLIUM including configurations, instructions or specifications in relation to the Services; or
6. f) any use of the Services not permitted under the Agreement.

13.2. If a third party makes a claim under Section 13.1.1 or in STELLIUM’s reasonable opinion is likely to make such a claim, STELLIUM may, at its sole option and expense:

1. a) procure for Prime Contractor the right to continue using the Deliverable under the terms of the Agreement; or
2. b) replace or modify the Deliverable to be non-infringing without material decrease in functionality.

13.3. If these options are not reasonably available, STELLIUM or Prime Contractor may terminate the Agreement relating to the affected Deliverable upon written notice to the other.

13.4. STELLIUM expressly reserves the right to cease such defense of any claim(s) in the event the applicable Deliverable is no longer alleged to infringe or STELLIUM the third party’s rights.

13.5. Claims Brought Against STELLIUM

13.5.1. Prime Contractor shall defend STELLIUM and its Affiliates against claims brought against STELLIUM by any third party arising from or related to:

1. a) any Prime Contractor or Customer use of the Services in violation of any applicable law or regulation; and
2. b) an allegation that the Customer Data, Prime Contractor’s use of the Services, Customer´s use of the Services or anything Prime Contractor has provided to STELLIUM including access to third party software or proprietary information violates, infringes or STELLIUM the rights of a third party.

13.5.2. The foregoing shall apply regardless of whether such damage is caused by the conduct of Prime Contractor or by the conduct of a third party using Prime Contractor or Customer’s access credentials.

13.6. Third Party Claim Procedure

13.6.1. All third party claims under Sections 13.1 and 13.2 shall be conducted as follows:

1. a) The party against whom a third party claim is brought (the “Named Party”) will timely notify the other party (the “Defending Party”) in writing of any claim. The Named Party will reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the Defending Party, subject to section b) below.
2. b) The Defending Party will have the right to fully control the defense.

Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by the Named Party.

13.7. Exclusive Remedy

13.7.1. The provisions of this Section 13 state the sole, exclusive and entire liability of the Defending Party, its Affiliates and subcontractors to the Named Party, and is the Named Party’s sole remedy, with respect to covered third party claims and to the infringement and STELLIUM of third party intellectual property rights.

14. LIMITATION OF LIABILITY

14.1 Unlimited Liability

Neither party’s liability is capped for damages resulting from:

1. a) death or personal injury arising from either party’s negligence; and / or
2. b) any failure by Customer to pay any fees due under the Agreement
3. c) fraud or fraudulent misrepresentation; and/or
4. d) any liability that cannot be excluded or limited by applicable law.

STELLIUM will not be liable for any Licensee activities not permitted under this Agreement including without limitation to the extent that any liability arises from any Service provided for no fee.

 14.2 Liability Cap

Except as set forth in Sections 14.1 and 14.3 under no circumstances and regardless of the nature of the claim (whether arising out of breach of contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, breach of warranty or claims by third parties from any breach (however minor) of this Agreement, from willful misconduct or otherwise) shall the maximum aggregate liability of Prime Contractor (and its Affiliates) and of STELLIUM (and its Affiliates, licensors or subcontractors) arising under or in connection with the Agreement to the other or any other person or entity shall not exceed (i) for Services (other than Premium Engagement or subscription based Services), the fees paid for the applicable Services under the relevant Order Form, or (ii) for Premium Engagement or subscription based Services, for all events (or series of connected events) arising in any

12 month period, the annual fees paid for Premium Engagement Services or subscription based Services associated with the damages arising in that 12 month period. Any “12 month period” commences on the start date of the Premium Engagement Services or subscription based Services or any of its yearly anniversaries.

14.3 Exclusion of damages:

Except as set forth in Section 14.1

Regardless of the nature of the claim (whether arising out of breach of contract, tort (including but not limited to negligence), misrepresentation, breach of statutory duty, breach of warranty or claims by third parties from any breach (however minor) of this Agreement, from, willful misconduct or otherwise) under no circumstances shall either party (or their respective Affiliates or STELLIUM’s subcontractors) be liable to the other or any other person or entity for any loss or damage arising under or in relation to this Agreement (whether or not the other party had been advised of the possibility of such loss or damage) in any amount, to the extent that such loss or damage is:

1. a) (i) loss of profits, (ii) loss of business, (iii) loss of business opportunity, (iv) loss of contracts, (v) loss of revenue,

(vi) loss of goodwill, (vii) loss resulting from work stoppage, (viii) loss of anticipated savings, (ix) lost or wasted management time or time of other employees or contractors, (x) loss resulting from wasted expenditure, (xi) losses from computer failure or malfunction, (xii) legal fees, or (xiii) interest or exemplary or punitive damages, (regardless of whether these types of loss or damage listed in this sub-clause (a) are direct, indirect, special or consequential); or

1. b) indirect, special, incidental or consequential loss or damages and whether or not the other party had been advised of the possibility of such loss or damage.

14.4 In no case will STELLIUM be liable for any damages caused by any Services provided for no fee.

14.5 The parties agree that the provisions of this Agreement appropriately allocate the risks between STELLIUM and Licensee and the Services reflect this allocation of risk and the limitations of liability herein.

15. MISCELLANEOUS

15.1. Severability

If any provision of the Agreement is held to be wholly or in part invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement. The invalid or unenforceable provision will be replaced by a valid and enforceable provision which approximates as closely as possible the intent of the invalid or unenforceable provision. This will also apply in cases of contractual gaps.

15.2. No Waiver

A waiver of any breach or obligation of the Agreement is not deemed a waiver of any other breach or obligation.

15.3. Counterparts

The Agreement may be signed in counterparts, each of which shall be deemed an original and which shall together constitute one Agreement. Electronic signatures via DocuSign or any other form as determined by STELLIUM are deemed original signatures.

 15.4. Trade Compliance

15.4.1. STELLIUM and Prime Contractor shall comply with Export Laws in the performance of the Agreement. The Services, Work Products and Confidential Information are subject to Export Laws. Prime Contractor and its Affiliates shall not directly or indirectly export, re-export, release, or transfer the Services, Work Products and Confidential Information in violation of Export Laws. Prime Contractor is solely responsible for compliance with Export Laws, including obtaining any required export authorizations if Prime Contractor exports or re-exports the Services, Work Products and Confidential Information. Prime Contractor must not use the Services or Work Products from Crimea/Sevastopol, Cuba, Iran, the People’s Republic of Korea (North Korea), so called Donetsk People’s Republic, so called Luhansk People’s Republic and Syria.

15.4.2. Upon STELLIUM’s request, Prime Contractor shall provide information and documents to support obtaining an export authorization. STELLIUM may immediately terminate the affected Services upon written notice to Prime Contractor if:

1. a) the competent authority does not grant such export authorization within 18 months; or
2. b) Export Laws prohibit STELLIUM from providing the Services to Prime Contractor.

15.5. Notice

All notices will be in writing and given when delivered to the address set forth in an Order Form. Notices from STELLIUM to Prime Contractor may be in the form of an electronic notice to the Prime Contractor´s authorized representative or administrator.

15.6. Assignment

Without STELLIUM’s prior written consent, Prime Contractor may not assign, delegate, or otherwise transfer the Agreement (or any of its rights or obligations) to any party. STELLIUM may assign the Agreement to STELLIUM SE or any of its Affiliates.

15.7. Subcontracting

15.7.1. STELLIUM may use subcontractors to provide all or part of the applicable Services under the Agreement.

15.7.2. STELLIUM is responsible for the performance of any Services by a subcontractor to the same extent as it would be if performed by its own employees

15.8.Relationship of the Parties

The parties to the Agreement are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.

15.9. Non-Solicitation

Neither party shall knowingly solicit or hire, any of the other party’s employees involved in the Services during the term of the applicable Order Form and for a period of 6 months from the termination thereof, without the express written consent of the other party. This provision shall not restrict the right of either party to recruit generally in the media.

15.10. Force Majeure

Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

15.11. Governing Law

15.12.  The Agreement and any claims (including any non-contractual claims) arising out of or in connection with this Agreement and its subject matter shall be governed by and construed under the laws of England and Wales. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

15.13. Arbitration

Except for the right of either party to apply to a court of competent jurisdiction for injunctive, or other equitable relief, any dispute or claim arising out of or in relation to this Agreement, including, without limitation, any question regarding its existence, validity or termination shall be settled by arbitration in Dubai International Financial Center in United Arab Emirates in accordance with the rules of arbitration of the London Court of International Arbitration (LCIA) which rules are deemed to be incorporated by reference into this clause. The language to be used in the arbitration shall be English. One or more arbitrators appointed in accordance with the following: (i) Arbitration by One Arbitrator: If the parties agree to a one-arbitrator, the parties shall agree upon and appoint an arbitrator, after first ascertaining that the appointee consents to act, within thirty (30) days from the date on which written notice of referral to arbitration by one party is received by the other party (the “Notice Date”) or (ii) Arbitration by Three Arbitrators: If the parties are unable to agree on a one-arbitrator, or, having so agreed, are unable to agree on the arbitrator within thirty (30) days from the Notice Date, then the arbitration shall be conducted by and before three

(3) arbitrators, who shall be appointed as follows. Each party shall appoint one arbitrator, after first ascertaining that the appointee consents to act, and notify the other party in writing of the appointment within sixty (60) days from the Notice Date. The appointed arbitrators shall agree upon and appoint the third arbitrator, who shall be the chairman, after first ascertaining that the appointee consents to act, and notify the parties in writing of the appointment within ninety (90) days from the Notice Date. The chairman shall be a qualified lawyer, and the other arbitrators shall have a background or training in computer law, computer science, or marketing of computer products. The arbitrators shall have the authority to grant injunctive relief, in a form substantially similar to that which would otherwise be granted by a court of law. The parties irrevocably agree to submit to arbitration and the parties each agree that any award made by the arbitrators shall be enforceable in any country, without further inquiry into the disputed matters which are the subject of the award. The provisions of this section shall survive termination of this Agreement.

15.14.  Statute of Limitation

Customer must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one year from the date when Customer knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).

15.15. Entire Agreement

1. a) This Agreement constitutes the complete and exclusive statement of the agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, communications, arrangements, promises, assurances, warranties, representations, discussions, collateral contracts and understandings (the “Statements”) between the parties (both oral and written) relating to that subject matter and no Statements of any kind, oral or written, shall be binding upon the parties unless incorporated herein. Each party acknowledges and agrees that in entering into this Agreement it has not relied on and shall have no remedy in respect of any Statements (whether negligently or innocently made) except those expressly set out in this Agreement. Each party agrees that it shall have no rights or remedies which, but for this section, might otherwise be available to it in respect of any such Statements whether made innocently or negligently or otherwise. Nothing in this Agreement shall limit or exclude the liabilities or the rights or remedies of either party that cannot be limited or excluded by law.
2. b) The Agreement may not be modified except as agreed by both parties by an executed written amendment, or as otherwise permitted under the Agreement. Terms and conditions of any Customer-issued purchase order shall have no force and effect, even if STELLIUM accepts or does not otherwise reject the purchase order. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may appear in any clickwrap end user agreement included in the Software. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) shall be deemed original signatures. This Agreement does not create any partnership, joint venture or principal-and-agent relationship.

15.16.  Hierarchy

In the event of any inconsistencies the following order of precedence shall apply:

1. Order Form including Scope Document;
2. Service Description (if any);

iii. DPA;

1. these GTCs.

15.17. Contracts (Rights of Third Parties) Act 1999

Notwithstanding any other provision in this Agreement, nothing in this Agreement shall create or confer (whether expressly or by implication) any rights or other benefits whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise in favour of any person not a party hereto.