Users of the Services offered by Stageforce acknowledge and accept these terms and conditions.

Owner of Stageforce and related services

Stageforce®

1619 S. Rancho Santa Fe Road

San Marcos, CA

The service provided by the owner, Stageforce, allows the user to track inventory items online (eg. Website, mobile app) As part of its service the owner allows the User to create an account, add users, create products to track location, store data regarding products and manage logistics of inventory.

This Agreement sets forth the terms and conditions under which Stageforce will provide Stageforce Software (as defined below).  Customer’s access to and use of Stageforce is governed solely by the terms of this Agreement which supersedes the terms of any other prior writing or understanding between the parties.

TERMS AND CONDITIONS

1. Definitions.   As used in this Agreement:

1. “ Affiliate ”   means in relation to a party any other person controlling, controlled by or under common control with that party where “control” and related terms means having control of more than 50% of such party’s voting shares, and control of the day to day operations.
2. “ Confidential Information ” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary.  Confidential Information includes the Customer Data, information derived from or concerning The Stageforce System, Stageforce Software or the Documentation and the terms of this Agreement.
3. “ Customer Data ” means any data, information or information contained in any database, template or other similar document submitted by Customer through Stageforce, Stageforce Software or provided by Customer to Stageforce as part of the Stageforce Software.
4. “ Documentation ” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by Stageforce that describe the features, functionality or operation of the Stageforce System.
5. “ Fees ”   is defined in Section 4  hereof.
6. “ Order Form ” means collectively the order documents representing the initial subscription to Stageforce for use of the Stageforce Software (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of Exhibit A to this Agreement from time to time.  Unless mutually agreed between the parties, and Order Forms are non-cancelable.
7. “ Stageforce Software ” means the on-line service delivered by Stageforce to Customer using the Stageforce System, as made available by Stageforce from time-to-time as specified in Exhibit A .
8. “ The Stageforce System ” means the technology, including hardware and software, used by Stageforce to deliver Stageforce Software to Customer in accordance with this Agreement.
9. “ Subscription Administrator ” means the individual assigned by Customer having responsibility over all administrative and billing matters relating to Customer’s use of Stageforce Software, as identified in Exhibit  A .
10. “ UserID ” is defined in Section 3.1  hereof.
11. “ Users ” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use Stageforce Software on behalf of Customer and have been supplied user identifications and passwords for this purpose.

2. Stageforce .  

1. Subscription to Stageforce .  Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Stageforce hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use of Stageforce Software by the number of active RFID tags Exhibit A   in accordance with this Agreement solely for Customer’s internal business purposes and not for resale .  If Customer places an order on behalf of an Affiliate, or an Affiliate of Customer places an order, upon such execution, such Affiliate shall be bound by the terms of this Agreement and such Affiliate entity shall be deemed “Customer” for purposes of the applicable Order Form and this Agreement.  Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Stageforce with respect to future functionality or features.
2. Service Levels.   Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4  hereof, Stageforce shall (a) maintain the security of Stageforce Software; (b) provide the support services described in Exhibit B ; (c) perform regular (once daily) backups for the Customer Data and (d) make Stageforce Software available in accordance with this Agreement.  

3. Customer’s Use of Stageforce  Software.  

1. Access and Security Guidelines .   One User will be assigned a unique user identification name and password (“ UserID ”) for access to and use of Stageforce Software.  Customer shall be responsible for ensuring the security and confidentiality of its UserIDs.  UserIDs may be shared within the Customer’s organization. provided that  UserIDs may not be provided to any individual who is not a User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, Stageforce Software, and notify Stageforce promptly of any such unauthorized use. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using Stageforce Software.  
2. Customer Data .  Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information.  Stageforce may take remedial action if Customer Data violates this Section 3.2 , however, Stageforce is under no obligation to review Customer Data for accuracy or potential liability.  
3. Use Restrictions.   Customer is responsible for all activities that occur under Customer's User accounts.  Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of Stageforce System; (b) interfere in any manner with the operation of the Stageforce Software, or the hardware and network used to operate Stageforce System; (c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use Stageforce for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of Stageforce System; or (e) otherwise use Stageforce Software in any manner that exceeds the scope of use permitted under Section 2.1 hereof.  

4. Fees, Payment and Suspension of Services .  As consideration for the subscription to Stageforce Software and the support services provided by Stageforce under this Agreement, Customer will pay Stageforce the fees (“ Fees ”) set forth in and in accordance with Exhibit A .   Stageforce Software fees will be billed in advance monthly and are due within (30) days of receipt of invoice, unless otherwise agreed to in the order documents. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes assessed upon, withheld or incurred in connection with this Agreement or the transactions contemplated by this Agreement.  Stageforce reserves the right (in addition to any other rights or remedies Stageforce may have) to discontinue Stageforce Software and suspend all Customer’s access to Stageforce Software if any Fees are more than forty-five (45) days overdue until such amounts are paid in full.  Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5. Confidential Information .

1. Obligation .  Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder.  Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1  with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice (to the extent the provision of such notice is permissible by law) of such disclosure in order to permit the other party to seek confidential treatment of such information.
2. Exceptions .  The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.

6. Ownership .

1. Stageforce System and Technology .  Customer acknowledges that Stageforce retains all right, title and interest in and to the Stageforce System and all software, materials, formats, interfaces, information, data, content and the Stageforce Software proprietary information and technology used by Stageforce Software or provided to Customer in connection with Stageforce Software (the “Stageforce Technology” ), and that The Stageforce Technology is protected by intellectual property rights owned by or licensed to Stageforce.  Other than as expressly set forth in this Agreement, no license or other rights in Stageforce Software are granted to the Customer, and all such rights are hereby expressly reserved by Stageforce.  Stageforce shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into Stageforce Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to Stageforce Software.
2. Customer Data .  Customer retains all right, title and interest in and to the Customer Data.  Stageforce will only use Customer Data to provide Stageforce Software under this Agreement.  Customer will be solely responsible for providing all Customer Data required for the proper operation of Stageforce Software.  Customer grants to Stageforce all necessary licenses in and to such Customer Data solely as necessary for Stageforce to provide the Stageforce Software to Customer.  Stageforce will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, Stageforce will access and use such Customer Data only as required to perform requested services on behalf of Customer.   See Stageforce Privacy Policy.

7. Term and Termination .  

1. Term .  The initial term of this Agreement will commence on the Effective Date and continue for three (12) months, unless otherwise agreed to in the order documents.  Thereafter, this Agreement may be renewed for additional one (1) to (5) year terms upon the mutual agreement of the parties hereto.  Pricing for any renewal terms shall be determined upon the agreement of both parties and shall not exceed the rates in effect in the immediately prior term by more than five percent (5%).
2. Early Termination .  Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach.  Upon the termination of this Agreement for any reason, (a) any amounts owed to Stageforce under this Agreement prior to the date of such termination will become immediately due and payable (all amounts paid in advance shall be refunded to Customer on a pro rata basis within thirty (30) days of such termination); and (b) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party in its possession or control.  Stageforce agrees that upon any early termination of this Agreement, Stageforce will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Stageforce) for a reasonable time period after termination. Thereafter, Stageforce will remove all Customer Data from Stageforce System and all Customer access to or use of Stageforce System and Stageforce Software will be immediately suspended.  The rights and duties of the parties under Sections 4, 5, 6, 8, 9, 10, 11.3, 11.4 and  11.6 will survive the termination or expiration of this Agreement.

8. Warranty; Disclaimer .     During the term of this Agreement, (the “Software Warranty Period”), Stageforce warrants that Stageforce Software, when used in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects. Other than the express warranty in the foregoing sentence as well as the Maintenance and Support requirements set forth in Exhibit B hereto, Stageforce makes no warranty concerning Stageforce System or Stageforce Software and Customer acknowledges that Stageforce’s sole obligation with regard to the Stageforce Software is to provide the support services described in Section 2.3 and Exhibit B hereof.   Accordingly, Stageforce, Stageforce System, Stageforce Software and all other data, materials, and documentation provided in connection with this Agreement by Stageforce and its suppliers are provided “as is” and “as available,” without representations or warranties of any kind.  Stageforce and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of noninfringement, merchantability or fitness for a particular purpose or any implied warranties arising out of course of performance, course of dealing or usage of trade.  Stageforce does not warrant that Stageforce Software will be provided error-free, uninterrupted, completely secure, or virus-free.  
9. Indemnity .  

1. By Stageforce.   If any action is instituted by a third party against Customer based upon a claim that Stageforce System or Stageforce Software, as delivered, infringes a United States patent, copyright or trademark, Stageforce shall indemnify, hold harmless and defend Customer from such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are awarded against Customer or paid in settlement of such claim.  Stageforce may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using Stageforce Software, (b) replace or modify the Stageforce System or Stageforce Software so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to Stageforce Software and refund any amounts previously paid for Stageforce Software attributable to the remainder of the then-current term of this Agreement.  Stageforce shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Stageforce System or Stageforce Software  after it has been modified by Customer or a third party without Stageforce’s prior written consent.  This Section sets forth the entire obligation of Stageforce and the exclusive remedy of Customer against Stageforce or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by Stageforce the Stageforce System or Stageforce Software.
2. By Customer. If any action is instituted by a third party against Stageforce (a) arising out of or relating to Customer’s use of Stageforce System or Stageforce Software (including claims by any customer or business partner of Customer); or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Stageforce and shall pay all damages attributable to such claim which are finally awarded against Stageforce or paid in settlement of such claim.  Customer shall have no obligation under this Section for any claim or action that is described in Section 9.1 above or arises out of a breach of this Agreement by Stageforce.
3. Conditions.   Any party that is seeking to be indemnified under the provision of this Section 9  (an “Indemnified Party” ) must (a) promptly notify the other party (the “Indemnifying Party” ) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim” ), and (b) give the Indemnifying Party the sole control over the defense of such Claim.  However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure.  The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert   in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party.   Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.  

10. Limitation of Liability .  Excluding the indemnification obligations set forth in section 9 herein, each party’s total cumulative liability to the other party for any and all claims arising from or in connection with this Agreement (under any legal theory including claims in contract or tort), the Stageforce System and the Stageforce Software will not exceed the amounts actually paid to Stageforce by Customer in the twelve (12) month period immediately preceding the claiming party’s formal written notice of the claim for liability hereunder. In no event will either party be liable for special, incidental, indirect or consequential damages arising out of or in connection with this agreement (under any legal theory including claims in contract or tort), including, but not limited to, lost profits, and damages that result from inconvenience, delay or loss of use of any information or data of the Stageforce System or Stageforce Software even if Stageforce has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy provided herein.  
11. General Provisions

1. Publicity .  Stageforce and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties.  All public announcements by either party concerning this Agreement are subject to prior written approval by Customer and Stageforce.  The parties will use reasonable efforts to review and approve public announcements within seven (7) days of submittal.  Customer agrees to allow Stageforce to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Stageforce and a user of Stageforce Software.  
2. Assignment .  Neither party may assign any rights or obligations arising under this Agreement, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Customer agrees that Stageforce may subcontract certain aspects of Stageforce Software to qualified third parties, provided that any such subcontracting arrangement will not relieve Stageforce of any of its obligations hereunder.  Subject to the foregoing limitation, this Agreement shall inure to the benefit of and shall be binding on the successors and assignees of the parties.  
3. Governing Law and Venue .  This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to principles of conflict of laws.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.    
4.         Force Majeure.   Both parties will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond such party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer failures involving hardware or software not within Stageforce's possession or reasonable control, but only if such unavailability results notwithstanding the exercise of reasonable care and diligence to avoid or mitigate the same in anticipation of or in response to such causes.
5. Notices.   Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth above or as provided on Exhibit A  (each party may change its address from time to time upon written notice to the other party of the new address).  Unless otherwise set forth below, notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via e-mail (deemed delivered upon transmission), (d) sent via fax (with confirmation of receipt), or (e) sent by recognized air courier service.
6. Entire Agreement .  This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof.  Only a writing signed by both parties may modify it.  
7. Severability and Waiver.   In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.  
8. Relationship of the Parties .  The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
9.       Counterparts.   This Agreement may be executed in counterparts, which taken together shall form one legal instrument.