THIS STELLARMOBILEQ™  AFFILIATE AGREEMENT (“Agreement”) is entered into by and between Homespun Websites, LLC d/b/a Stellaractive, d/b/a StellarMobileQ , StellarMobileQ .com ( referred to as “Stellar", "we", "our", or "us") on this website.); and you (“Affiliate”), and is made effective as of the date of electronic acceptance.  This Agreement sets forth the general terms and conditions of your license of Stellar products and services (individually and collectively, the “Services” or “Stellar Services”) purchased or accessed through Stellar, or the StellarMobileQ website (this “Site”), and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services you purchase or access through Stellar or this Site.


This Agreement is a legal agreement between Stellar and you.  By clicking "WE AGREE," indicating your acceptance of this Agreement you will signify that you have read, understand, acknowledge, and agree to be bound by this Agreement, along with the following policies and agreements for using or accessing Services, which are incorporated herein by reference.  If you do not agree to this Agreement, then click “WE DECLINE”, and do not use the Services. 

WHEREAS, Stellar provides mobile landing pages that enables the distribution of Stellar’s proprietary StellarMobileQ on the Stellar Site (defined below) through separate discrete sub domain names; and

 

WHEREAS, the parties desire that Stellar grant a distribution license authorizing Affiliate to distribute Stellar’s StellarMobileQ, subject to the terms and conditions hereof;

 

NOW, THEREFORE, in consideration of the foregoing, and in reliance on the mutual agreements contained herein, the parties agree as follows:

Definitions

 

"Stellar Services” means, StellarMobileQ (defined below) services more particularly identified on Exhibit A, attached; that are accessible and provided through the Stellar Site.  Stellar Services will be accessible through a single sub domain name to be provided by Stellar.  Stellar Services include any updates to such services that may be provided by Stellar hereunder.


StellarMobileQ, means a co-branded, low cost, high performance QR Code generator coupled with a i) mobile landing page; and ii) a content management system that is easy to manage and effortlessly updated; and  iii) set-up, searching, tracking and marketing performance measurement for Affiliate and End-Users; and iv) Affiliate directory.   

"Stellar Site” means, the Internet website that is controlled and managed by Stellar and/or its contractors and designated by Stellar as the server for purposes of serving the Stellar Services.

 

 “Set-Up Fee(s)”, means the one-time fee required to set up a StellarMobileQ™ for a Affiliate as described in Exhibit A, attached. 

 

“Subscription Fee”, means a regularly scheduled fee, payable to Stellar, to maintain StellarMobileQ™ for an End User.

 

Wholesale Subscription Fee means the portion of the Subscription Fee retained by Stellar as described in the Exhibit B, attached.

 

“Affiliate Payment” means, the Subscription Fee less the Wholesale Subscription Fee, payable to Affiliate.

 

“Upgrade-SubscriptionFee(s)”, means, a regularly schedule fee, in addition to the Subscription Fee resulting from providing an End-User with additional functionality and/or services including but not limited to domain registration, hosting, un-limited pages and photos, newsletter, calendar, blog, password protection, Stellar SC™  or a simple shopping cart.

 

“Add-On Fee(s)” means, one time fees in addition to the Set-Up Fee for services offered by or through Stellar including, but not limited to, copywriting, logo design, social media, custom stock photos, animation, video, custom headers, SEO, web site marketing, and strategy consultation.

 

“End-User”, means a Affiliate contact that contracts StellarMobileQ™ and enters into a Subscription and Terms of Service Agreement with Stellar and is responsible for regularly schedule fees payable to Stellar.

Subscription and Terms of Service Agreement” means, the agreement entered into between Stellar and the End-User, which will appear on the Stellar Site and will require electronic approval by the End-User.


 

"Internet Data Centers" means, any of the facilities owned or controlled by Stellar or its third party vendors and used by Stellar to provide the Stellar Services.  These facilities house Stellar’s technology used for the provision of Stellar Services.

 

"Branding Features" means, a party’s proprietary trade names, service marks, trademarks, logos, and indicia of origin and other distinctive branding features.

Proprietary Materials" means, materials to be delivered by one party to the other, or used by a party in connection with the delivery of services or the Stellar Services, or for the performance of obligations hereunder.

Proprietary Rights" means, any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.

 


1. Use License.  Subject to the terms and conditions hereof, and only for term hereof, Stellar hereby grants to Affiliate the right and license to access and use the Stellar Site for purposes of facilitating the distribution of Stellar Services to Affiliate’s End-Users.

 

2. Distribution License For Stellar Services.  Subject to the terms and conditions hereof and only for the term hereof, Stellar hereby grants to Affiliate the non-exclusive, non-transferable worldwide right and license to market and distribute Stellar Services only to End-Users and only for purposes of use, and not to resellers for purposes of resale.  Affiliate is authorized to grant sublicenses to End-Users of the Stellar Services only in conformity with Sublicense Terms provided to and electronically agreed to by Stellar.

 

3. Contracting Procedures for End-Users.  Stellar is authorized and will offer and enter into its own agreement with End-Users for the purchase terms, pricing, and payment of the Subscription Fee for Stellar Services, which Subscription Fee will be collected by Stellar from the End-User and a Affiliate Payment will be paid to the Affiliate in accordance with Section 5, below.  In addition, Stellar shall require each End-User of the Stellar Services to enter into the Subscription and Terms of Services Agreement.

 

4. Procedure For Payable to Affiliate.  Stellar will pay Affiliate and on-going Affiliate Payment in accordance with Exhibit B attached.

 

5. Set-Up Fee Payment Procedures Payable to Stellar.  Affiliate will pay Stellar one-time fee for setting up the Affiliate accounting accordance with Exhibit A attached.

 

6. Non-Exclusive Licenses.  The licenses granted herein are non-exclusive.  Stellar may compete with Affiliate, and Stellar may grant licenses to third parties who may compete with Affiliate, in connection with the Stellar Services.

 

7. Co-Branding Requirements.  Stellar shall incorporate mutually agreed-upon Affiliate Branding Features and Stellar Branding Features into the Stellar Services; provided, however, that the parties acknowledge that the intent of the co-branding is to provide dominant positioning and commercial impression to Affiliate Branding Features.  All distribution rights and licenses granted herein for Stellar Services are subject to the forgoing branding requirements. All use of the Branding Features provided by either party shall inure to the benefit of the providing party. Neither party (i) apply for registration of the Branding Features of the other party (or any marks or features confusingly similar thereto) anywhere in the world, (ii) alter, modify or change the Branding Features of the other party in any manner, or (iii) use any of the Branding Features of the other party, except as expressly authorized herein or by prior written approval of the party providing the Branding Features.

 

8. License Restrictions.  Affiliate shall not, nor shall it permit or assist others, (i) to modify or fraudulently use the Stellar Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use Stellar Services; or (iii) to access, alter, or destroy any information of any customer of Stellar by any fraudulent means or device, or attempt to do so.

 

9. Reservation of Rights.  All rights not expressly granted to Affiliate herein are expressly reserved by Stellar.

 

10. Set-Up of Stellar Site And Stellar Services.  In accordance with a mutually agreed-upon schedule, Stellar will complete all tasks required to configure the Stellar Site and to make the Stellar Services accessible to Affiliate, including (i) delivering to Affiliate related documentation necessary to access and use the Stellar Services, and (ii) assigning all security access, passwords, sub domain(s), and user IDs necessary to access and use the Stellar Services.

 

11. Access Codes For Stellar Services.  Stellar will permit access to the Stellar Services by End-Users over the Internet using only the sub-domain(s) and passwords provided by Stellar.  All such information will be deemed the Confidential Information of both parties.

 

12. Minimum Technical Requirements for Stellar Site and Stellar Services.

12.1.        Capacities: The Stellar Site and Stellar Services shall be rendered in a manner that will support the requirements provided in Exhibit A attached.

12.2.        Scalability: The Stellar Site and Stellar Services shall be scalable in a manner that allows the Stellar Services to meet any forecasted increase provided in Exhibit A. Affiliate acknowledges that increasing the requirements and/or data storage requirements may lead to increases in the fees charged for the Stellar Site and Stellar Services.

12.3.        No Commingling of Customer Data: The Stellar Site and Stellar Services shall be operated in an environment where (i) customer data of Affiliate’s users shall be stored on files totally separate from those of other customers of Stellar, or (ii) all files containing such customer data are partitioned sufficient to protect the security and privacy of such customer data.

12.4.        Internet Data Centers: The Stellar Site and Stellar Services will be provided through Internet Data Centers that are configured consistent with reasonable and appropriate safeguards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions.  Stellar may outsource its Internet Data Center operations to subcontractors.

 13. Backups.  At no additional charge to Affiliate, Stellar shall make daily incremental backups (the "Incremental Backup") and weekly full backups (the "Full Backups") of Customer Data archived with the Stellar Technology. The prior day incremental backup and a copy of the weekly backup shall be stored off-site in a secure facility designed to store and maintain backups for emergency use. Upon storage of a weekly backup in the off-site facility, the prior weekly backup can be made available to Affiliate by electronic delivery.

 

14. Monitoring of Affiliate’s Use.  Stellar reserves the right to internally monitor Affiliate’s usage of the Stellar Site and Stellar Services.

 

15. Security.

15.1.        Maintenance: Affiliate shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet.

15.2.        Security: As part of the Stellar Services, Stellar shall implement reasonable and appropriate security procedures consistent with prevailing industry standards to protect customer data of Affiliate’s users from unauthorized access by physical and electronic intrusion; provided, however, unless resulting from the failure of Stellar to perform the forgoing obligations, the parties agree that Stellar shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Stellar at the time. Stellar will promptly report to Affiliate any unauthorized access to customer data promptly upon discovery by Stellar, and Stellar will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such customer data is required, Affiliate shall be solely responsible for any and all such notifications at its expense.

 

16. Stellar Site Operations.  Stellar shall undertake commercially reasonable efforts to operate and maintain its web servers that provide access to the Stellar Services sufficient for access twenty-four (24) hours per day, seven (7) days per week, except for routine maintenance. Stellar shall monitor such servers and undertake commercially reasonable efforts to restore promptly all failures of service at Stellar’s expense.

 

17. Affiliate Site Operations.  Affiliate shall undertake commercially reasonable efforts to continuously operate the Affiliate Site twenty-four (24) hours per day, seven (7) days per week, except for routine maintenance. Affiliate shall monitor affected web servers and undertake commercially reasonable efforts to restore promptly all failures of service at Affiliate’s expense. Affiliate shall be solely responsible at its expense: (i) for its Internet connection, internal network, and hardware and software sufficient to access the Stellar Services, (ii) all registration and transaction processing in connection with the distribution of Stellar Services, and (iii) all data processing, storage, archival, back-up, privacy, and security relating to the forgoing.

 

18. Marketing And Support Obligations.  Each party shall perform the marketing and support obligations in accordance with Exhibit C attached.

 

19. Affiliate’s Resale Policies.  Affiliate is free to determine its own resale policies and pricing, but all Subscription Fees will be collected by Stellar directly from End-Users in accordance with Exhibit B attached.

 

20. Representations and Warranties; Indemnities.

20.1.        Legal Rights: Each of the parties represents and warrants to the other that: (i) each party has full legal right, power and authority to enter into and perform this Agreement (including all Exhibits hereto); (ii) the Stellar Services and Client Software, Stellar Site, Proprietary Materials, and any branding features of either party specified herein do not infringe or misappropriate any Proprietary Right of any third party, or constitute defamation, invasion of privacy, or violate the privacy rights of any third party; (iii) all Proprietary Rights or other rights in the Stellar Services and Client Software, Stellar Site, Proprietary Materials, and any branding features of either party specified herein are either owned by the providing party or are properly sublicensed from third parties granting such party the right to use same as contemplated hereunder; (iv) regarding the collection and use of End-User data, each of the parties represents and warrants to the other that neither party shall violate any rights of any person or entity, including, without limitation, rights of publicity, privacy or personality; and (v) any and all Subscription Agreements granted by Stellar in connection with the Stellar Services shall be in compliance with the terms of SUBSCRIPTION AND TERMS OF SERVICE AGREEMENT provided on the Stellar Site.

20.2.        Indemnity: Each party shall defend, indemnify and hold harmless the other, its affiliates, successors, assigns, officers, directors, and employees from and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments and expenses (including actual attorneys’ fees and expenses regardless of whether litigation was commenced) arising out of or in connection with a breach/untruth of any express representation and warranty made above in this Section (a "Claim"), provided that: (i) the indemnified party promptly notifies the indemnifying party in writing of the claim promptly upon the indemnified party becoming aware of such Claim; (ii) the indemnifying party shall have exclusive control of the settlement or defense of any action to which the Claim relates; and (iii) the indemnified party cooperates with the indemnifying party in every reasonable way to facilitate such defense or settlement. Once given notice of such Claim, if the indemnifying party does not defend any such Claim, the indemnified party may take any of the above actions and shall be fully indemnified by the indemnifying party.

 

21. Warranty Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH ABOVE, TO THE EXTENT ALLOWED BY LAW, EACH PARTY ON BEHALF OF ITSELF AND ITS SUPPLIERS HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY.  NEITHER PARTY WARRANTS NOR GUARANTEES THAT THE OPERATION OF THE STELLAR SITE OR THE AFFILIATE SITE OR THE PERFORMANCE OF THEIR RESPECTIVE ONLINE FUNCTIONS AND WEB SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER PARTY GUARANTEES THAT DATA SUBMITTED OR HELD IN STORAGE ON OR THROUGH ITS SYSTEMS ASSOCIATED WITH THE INTERNET WILL BE SECURE FROM UNAUTHORIZED ACCESS.  FURTHER, EACH PARTY ACKNOWLEDGES AND AGREES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY THE OTHER PARTY, THAT NEITHER PARTY HAS CONTROL OVER THE INTERNET, AND THAT NEITHER PARTY IS LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT WEB SERVICES, THE STELLAR SITE, OR THE AFFILIATE SITE, OR THE PERFORMANCE OF THEIR RESPECTIVE ONLINE FUNCTIONS. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION THAT IS NOT EXPRESSLY SET OUT HEREIN.

 

22. Disclaimer of Incidental and Consequential Damages.  EXCEPT FOR INDEMNITIES AND OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

23. Liability Cap.  Except for indemnities and obligations regarding Confidential Information expressly provided herein, in no event shall the aggregate liability of the parties, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the following: (i) Stellar’s maximum liability shall not exceed the total amount of Set-Up Fees paid by Affiliate to Stellar and the Subscription Fees paid by End-Users hereunder during the six (6) months immediately preceding the claim, and (ii) Affiliate’s maximum liability shall not exceed the total amount of net proceeds (Subscription Fee, less commissions and portion paid to Affiliate) collected by Affiliate from the End-User hereunder during the six (6) months immediately preceding the claim.

 

24. Ownership of Stellar Elements.  Title to the Proprietary Rights embodied in the Stellar Site, including without limitation, the Stellar Services, the Stellar Services content, and the Proprietary Materials and Branding Features originated or provided by Stellar shall remain in and be the sole and exclusive property of Stellar and/or its licensors.

 

25. Ownership of Affiliate Elements.  Title to the Proprietary Rights embodied in the Proprietary Materials and Branding Features originated or provided by Affiliate, shall remain in and is the sole and exclusive property of Affiliate and/or its licensors.

 

26. Reciprocal Disclosure of Confidential Information.  The parties anticipate that each may disclose confidential information to the other.  Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party ("Owner") may disclose to the other party ("Recipient").  For purposes hereof, "Confidential Information" means the terms and conditions hereof, and other information of an Owner (i) which relates to Stellar Services, including business models and plans, and technical information and data of Owner or its customers or suppliers, or (ii) which, although not related to the Stellar Services, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or an affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care.  Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner; or (iv) is independently developed by Recipient without reference to Confidential Information.

 

27. Confidentiality of Stellar Services Software And Systems.  Notwithstanding the forgoing, specifically regarding the software if any and systems that enable the Stellar Services, Affiliate acknowledges Stellar's claim that the software and systems that enable the Stellar Services embody valuable trade secrets proprietary to Stellar.  Accordingly, Affiliate shall take reasonable measures to protect such software and systems, and the Stellar Services, from unauthorized access, disclosure, and use, including without limitation, the placement of any Proprietary Rights notice that is reasonably requested by Stellar.  Affiliate shall not: (i) distribute, transfer, loan, rent, or provide access to the Stellar Services, except as provided herein; (ii) remove or add any Proprietary Rights notice associated with the Stellar Services without the express written permission of Stellar; or (iii) disassemble or decompile the software and/or systems that enable the Stellar Services for any purpose.

 

28. Injunctive Relief.  The parties hereby agree that any breach of any provision of this Agreement regarding confidentiality or protection of Proprietary Rights would constitute irreparable harm, and that the aggrieved party shall be entitled to specific performance and/or injunctive relief in addition to other remedies at law or in equity.

 

29. Term of Agreement.  The initial term of this Agreement shall commence as of the Effective Date hereof and shall continue for a period of two (2) year.  The initial term hereof shall automatically renew for successive one (1) year terms unless either party notifies the other in writing not less than ninety (90) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein.

 

30. Automatic Termination.  Unless Affiliate promptly after discovery of the relevant facts notifies Stellar to the contrary in writing, this Agreement will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against Affiliate, any assignment or attempted assignment by Affiliate for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for Affiliate.

 

31. Termination for Cause.  Both parties may terminate this Agreement and all rights granted herein for a material breach by the other party which remains uncured after fifteen (15) days from receipt of written notice describing the nature of the breach. Stellar acknowledges that any uncured failure to pay Affiliate timely in accordance with Exhibit B is a material breach of this Agreement. Notwithstanding the forgoing, Affiliate acknowledges that strict compliance with all applicable laws (federal, state, and otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws, is a condition of remaining a party to this Agreement, and Stellar reserves the right to suspend or terminate this Agreement immediately upon notice to Affiliate in the event of any violation by Affiliate of such laws.

 

32. Effect of Expiration or Termination.  Upon the expiration or termination hereof, Affiliate shall cease distribution of the Stellar Services.  The expiration or termination hereof will not cause the rights of existing End-Users to terminate, and Stellar will assume responsibility for delivery of the Stellar Services to such End-Users under terms and conditions that are mutually agreeable between Stellar and the End-Users.

 

33. Arbitration.  Except for actions to protect Proprietary Rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect.  There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules.  The arbitration shall take place in Portland, Oregon.  The arbitrator shall apply the laws of the State of Oregon, to all issues in dispute.  The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement.  Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.  Legal fees shall be awarded to the prevailing party in the arbitration.

 

34. Jurisdiction And Venue.  The courts of Multnomah County in the State of Oregon, USA, and the nearest U.S. District Court shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement.

 

35. Notices.  Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth above or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section.  Such notice will be deemed to be given when received.

 

36. Assignment.  This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law.  Except as provided above, Affiliate shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without Stellar’s prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.

 

37. Continuing Obligations.  The following obligations shall survive the expiration or termination hereof: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money to Stellar hereunder.

 

38. Independent Contractors.  The relationship of the parties is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. Affiliate shall have no authority to enter into agreements of any kind on behalf of Stellar and shall not have the power or authority to bind or obligate Stellar in any manner to any third party.

 

39. Force Majeure.  Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.  Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.

 

40. Miscellaneous.  This Agreement shall be construed under the laws of the State of Oregon, without regard to its principles of conflicts of law.  This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements.  This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof.