Each order placed between the party indicated on an Order Form as the Customer, with Scale To Win, LLC, a California limited liability company, located at 13742 Harper Street, Santa Ana, California 92703 (“STW”) is subject to these standard terms and conditions (“Terms and Conditions”) as they may be amended from time to time. By executing such Order Form, Customer shall be deemed to have agreed to be bound by these Terms and Conditions. Customer and STW are hereafter referred to individually as a “party” and collectively as the “parties.”
“ACH” means an automated clearing house used to process electronic bank-to-bank payments.
“Candidate” means an individual that has publicly announced his or her intention to run for nomination or election to a political office, or the campaign affiliated with such individual, and may be identified in the Candidate Personal Guaranty.
“California Consumer Privacy Act of 2018” (or “CCPA”) means California Civil Code § 1798.100, et seq.
“Confidential Information” means all secret, confidential or proprietary information or data, whether provided in written, oral, graphic, video, computer, electronic or other form, provided pursuant to this Terms and Conditions by one Party (in such capacity, the “Disclosing Party”) to the other Party (in such capacity, the “Receiving Party”), including but not limited to: (a) technical, financial and business information and models, names of potential customers or partners, proposed business deals, reports, budgets and unpublished financial statements and reports, documents, agreements, files, plans, new products, new services, financial and market projections, marketing and selling plans, software programs, source and object codes, data, business strategies and plans; (b) records, research, patents, patent applications, trademarks, trademark applications, trade names, domain names, works of authorship, operational manuals, copyrights and copyrights applications; (c) algorithms, ideas, inventions, discoveries, development designs, techniques, processes, formulas, know-how, improvements, trade secrets or other intellectual property rights owned by, or controlled by, or licensed by a third party to the Disclosing Party; (d) confidential information of third persons that the Disclosing Party has a contractual, fiduciary or other legal obligation to properly use and keep confidential including Personal Data; and (e) any other confidential and proprietary information of or relating to the Disclosing Party.
“Customer” means the party listed on an Order Form, and has or will have an account created in the STW Solution to facilitate the provision of Services.
“Fees” means all costs, fees, and expenses associated with the provision of Services including without limitation those fees listed on the Customer(s) Order Form, reasonable attorney’s fees, and those costs, expenses and fees associated with the collection of any unpaid amounts due and owing to STW.
“Industry Standards” means rules and guidelines issued by the Cellular Telecommunications Industry Association, including but not limited to, the CTIA Short Code Monitoring Handbook.
“Intellectual Property” means inventions, discoveries, or improvements (whether patented or able to be patented and whether or not reduced to practice), including patents, patent applications, certificates of invention, continuations, continuations-in-part, provisionals, divisions, reissues, renewals, re-examinations and extensions thereof; trade secrets as defined under the Defend Trade Secrets Act § 2(b)(1) (18 USC § 1839(3)), know-how, designs, methodologies, processes, or similar rights; copyrights, droit-moral rights, and the protection of works of authorship or expression (whether or not registered); and similar rights under any laws or international conventions throughout the world, whether now existing or hereafter arising or developed, including the right to apply for registrations, certificates, or renewals with respect thereto, the rights to prosecute, enforce, and obtain damages.
“Order Form” means the order form(s) executed by and between the Customer and STW, by and through which STW has agreed to provide the delineated Services.
“Person(s)” means an individual, general partnership, limited partnership, limited liability company, corporation, trust, estate, real estate investment trust association or any other entity.
“Personal Data” means any information, data, or document, whether or not protectable Intellectual Property, which is created, developed, or collected by a Party, regarding any Person, as well as personal information of such Party’s employees and consumers. For the avoidance of doubt, Personal Data includes, but is not limited to, (a) all “nonpublic information,” as defined by the Gramm-Leach-Bliley Act (15 USC § 6801 et seq.), (b) personal information as defined by California Civil Code §§ 1798.29, 1798.82, and 1798.140 (California Consumer Privacy Act of 2018, effective January 1, 2020) (and as amended and expanded by California Privacy Rights Act of 2020 (effective January 1, 2023)), (c) protected health information or individually identifiable health information as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Health Information Technology for Economic and Clinical Health (HiTECH) Act or as defined by the Code of Federal Regulations (45 CFR § 160.103), and/or (d) personal data as defined by the EU General Data Protection Regulation (Regulation (EU) 2016/679). For the further avoidance of doubt, Personal Data is not limited to proprietary or confidential information, and need not constitute trade secret information.
“Services” has the meaning given to that term on the Customer’s Order Form(s).
“STW Solution” means STW’s proprietary Software-as-a-Service (SaaS) platforms and solutions that allow a Customer or User to either (i) send and receive custom peer-to-peer (“P2P”) text messages, or (ii) make outbound calls to Customer or User-provided target Persons using Personal Data. Subject to the Customer’s Order Form, the STW Solution may include hosting, outbound SMS, outbound MMS, inbound SMS, or the ability to make phone calls.
“Telephone Consumer Protection Act of 1991” (or “TCPA”) means Public Law 102-243 at section 227 of the Communications Act of 1934, as amended (47 United States Code § 227), including all Federal Communication Commission Regulations related to the TCPA and all other rules, decisions, and regulations issued by the FCC and other federal agencies or courts. Such rules and decisions include, but are not limited to, the decision of the Supreme Court of the United States in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021); the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED ACT”) and its implementing regulations; FCC Declaratory Ruling (DA 20-670) adopted June 25, 2020 addressing peer-to-peer (P2P) text messaging and automated dialing services under the TCPA.
“Territory” means the 48 continental states of the United States of America, Alaska, Hawaii, and the District of Columbia.
“User” means any officers, employees, volunteers, members, or agents of Customer (including those agents of STW that send messages on behalf of Customer, if turnkey Services are provided for in the Order Form) who create a login to Customer’s STW Solution account to utilize the STW Solution pursuant to the Order Form and this Terms and Conditions on behalf of Customer.
Any defined terms not defined within this Terms and Conditions have the meanings given to them in the applicable Order Form.
II. Term and Termination.
- Term. Subject to the Customer’s Order Form, this Terms and Conditions shall be in effect upon execution of the Order Form between STW and Customer, and shall remain in effect:
- if the Customer is a Candidate, (i) until 30 days after the date of the primary election, but only if Customer does not qualify as a Candidate for the general or runoff election, (ii) until 30 days after the date of the general or runoff election in which Customer is a Candidate;
- if the Customer is not a Candidate, the last day of the month, one year from the date of the execution of the applicable Order Form; or
- upon termination by either party (“Term”).
- Termination by Customer. Customer may terminate the Order Form at any time, with or without cause by providing a notice of termination in writing to STW which shall become effective immediately as of the date of such notice of termination (“Termination Date”).
- Termination by STW. STW may terminate the applicable Order Form either (i) upon 7 day prior written notice, with or without cause; or (ii) immediately in the case of material breach by Customer, including Customer’s failure to timely pay Fees when due. For the avoidance of doubt, STW expressly reserves the right to terminate the applicable Order Form in the event that Customer utilizes the STW Solution for purposes that STW, in its sole discretion, deems offensive or politically objectionable.
- Following the Notice of Termination, STW will cease provision of the Services. Customer shall be responsible for all Fees already accrued by or on the Termination Date;
- As of the Termination Date the License granted to Customer pursuant to this Terms and Conditions shall immediately terminate and Customer shall cease using the STW Solution; and
- For thirty (30) days following the Termination Date, STW shall make Customer Data available to Customer for electronic retrieval by Customer.
- License Grant. Subject to the terms of this Terms and Conditions, STW hereby grants to Customer a nonexclusive, non-assignable license to access and use the STW Solution in the Territory during the Term. On behalf of Customer, Users may access and use the STW Solution.
- Intellectual Property Restrictions. Customer acknowledges and agrees that it shall not, except as specifically licensed herein:
- copy, modify, distribute, publish, display or create derivative works of the STW Solution;
- remove, modify or obscure any copyright, trademark or other proprietary notices contained in the STW Solution;
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used to provide the STW Solution; or
- use the STW Solution for timesharing or service bureau purposes, or otherwise for the benefit of a third party.
- Use Restrictions. Customer acknowledges and agrees that it shall not, except as specifically licensed herein, use the STW Solution for the following purposes:
- Non-Commercial Purposes. Customer shall only use the STW Solution for predominantly non-commercial purposes such as public education, electoral contact, volunteer and member coordination, fundraising for a not-for-profit entity, or academic research.
- Territory. Customer shall only use the STW Solution to contact phone numbers identified within the Territory.
- Consent and Permission. If and when required under all relevant state and federal laws, Customer shall only use the STW Solution related to phone numbers for which the Customer has sufficient consent and permission from any relevant Person to send or receive messages or make calls in any form or format including without limitation SMS or MMS messages or phone calls via the STW Solution’s P2P messaging or dialer platforms. For the avoidance of doubt, such consent and permission must be sufficient under the CCPA, TCPA, and applicable Industry Standards during the Term as they may be amended from time-to-time.
- Requests from Persons; Opt-Out. Customer shall comply with any demand or request from any Person who receives any call directed by Customer via the STW Solution to be removed from one’s contact list. For the avoidance of doubt, subject to the Customer’s Order Form, Customer shall comply with any Person’s request that indicates their desire to no longer receive calls or messages from Customer.
- Content. Customer shall not use the STW Solution to send any messages or make any calls that:
- are obscene, libelous, defamatory, fraudulent, discriminatory, or abusive,
- promote, incite, or instruct on criminal behavior,
- are false, misleading, or deceptive,
- infringe the proprietary rights, including Intellectual Property rights, of any Person,
- are directed to minors or otherwise unsuitable content for minors, or
- otherwise violate any applicable state or federal law.
- Election and Lobbying Laws. Customer shall not use the STW Solution in a manner that violates any federal, state or local election, campaign finance or lobbying law, regulation or rule.
- Texting & Calling Hours. Customer shall only make calls or send messages using the STW Solution during the hours of 9:00am to 9:00pm in the relevant contact’s time zone. Customer represents and warrants that they will be responsible to identify and comply with the time zone restrictions for each relevant Person.
- “Do Not Call” lists; other limitations. Subject to the Order Form, Customer shall comply with the national “Do Not Call” list rules and regulations and any comparable state rules. Customer also shall comply with such other rules such as the limitations on the number of times calls may be placed to an individual under the TRACED ACT and implementing FCC regulation and notification and disclaimer requirements.
- Intellectual Property Restrictions. Customer acknowledges and agrees that it shall not, except as specifically licensed herein:
IV. STW Services and Solutions.
- STW Platform. Subject to Customer’s compliance with this Terms and Conditions, STW shall use commercially reasonable efforts to provide Customer with (i) the access and use described in the Order Form and this Terms and Conditions and (ii) technical support. If STW fails to meet these commitments, Customer’s sole remedy is termination pursuant to Section II(B).
- Turnkey Services. If Customer’s Order Form provides for turnkey Services, STW agrees to engage independent contractors to send P2P SMS or MMS text messages through the STW Solution on behalf of Customer. Customer must provide STW with the language of the messages, and further agrees that STW shall not be responsible for creating, drafting, or otherwise producing messages on Customers behalf. For avoidance of doubt, STW does not provide any of the enumerated activities of 11 C.F.R. § 109.21(d)(4)(ii) as part of turnkey Services. Customer acknowledges and agrees that STW may engage volunteers or independent contractors (“Turnkey Service Providers”) on Customer’s behalf, in order to complete the turnkey Services. STW does not attempt to control the manner, timeline, or effectuation of turnkey Services by such Turnkey Service Providers. Customer agrees that STW shall not be responsible if the messages sent by Turnkey Service Providers in satisfaction of the turnkey Services are not sent in a timely manner, or have failed, are incomplete, or otherwise violate applicable federal or state laws, including the CCPA, TCPA, or Industry Standards. Customer agrees to be responsible for all Fees accrued by the Turnkey Service Providers on behalf of Customer.
V. Fees & Payment.
- Payment of Fees. Customer agrees to pay STW the Fees provided for in the Order Form. All Fees paid by Customer are nonrefundable. If Customer believes that STW has billed Customer incorrectly, Customer must contact STW no later than thirty (30) days after the billing statement or invoice date in which the alleged error or problem appeared. In its sole and exclusive discretion, STW may utilize any of the following payment methodologies:
- Payment Method. Customer agrees to provide STW with valid ACH or credit card information, and authorizes STW to automatically charge Customer’s ACH payment method on the first of the month for the previous month’s usage for all accrued Fees. Customer may withdraw authorization for STW to automatically charge the payment method with thirty (30) days prior written notice to STW. Should Customer’s payment method fail to satisfy the Fees then currently due and owing to STW, such failure shall be deemed a material breach of this Terms and Conditions. Upon notice by STW of the failed payment, Customer must provide updated payment information, and fully satisfy the outstanding Fees within five (5) days of the failed payment.
- Monthly Invoice. In STW’s sole discretion, STW may issue an invoice to Customer on the first business day of each month for all outstanding Fees then due and owing by Customer to STW. Customer must satisfy the invoice in compliance with Section V(C).
- Threshold Payments. At STW’s sole and exclusive discretion, STW may, and Customer authorizes STW to automatically charge Customer’s payment method for the full amount then currently due and owing by Customer, every time Customer accrues one thousand dollars ($1,000.00) in Fees. On an ongoing basis, STW may charge Customer’s payment method for the accrual of Fees on the first business day following such accrual by Customer. Prior to utilizing this automatic payment method, STW must provide Customer with written notice under Section V(D) that STW has elected to begin charging Customer under this Section V(A)(3).
- Election-Related Payments.
- Payment. If Customer is a Candidate or campaign affiliated with a Candidate, Customer authorizes STW to automatically charge Customer’s payment method (i) ten (10) days before the Candidate’s impending election and (ii) five (5) days after the Candidate’s election. If Customer engages STW within five (5) days of the Candidate’s upcoming election, Customer is required to provide payment information, and hereby authorizes STW to charge the payment method for accrued Fees on the days, as STW believes in STW’s sole and exclusive discretion, that are reasonable and appropriate given the truncated timeline prior to the Candidate’s election.
- Pre-Election Invoices. Regardless of the payment method on file, STW may send Customer an invoice for all accrued Fees ten (10) days prior to the Candidate’s election.
- Post-Election Invoice. Regardless of the payment method on file, STW may send Customer an invoice for all accrued Fees one (1) day after the Candidate’s election.
- Unpaid Fees. When STW remits an invoice to Customer, payment on that invoice must be received by STW within thirty (30) days of the invoice date. Unpaid amounts are subject to an interest charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Failure to remit payment within thirty (30) days of the invoice date shall be deemed a material breach of this Terms and Conditions. To the maximum extent permitted under the law, Scale To Win will consider a Candidate personally liable for any unpaid invoices of their campaign committee.
- Changes in Fees. STW reserves the right to change the Fees, applicable charges, methodologies for payment, and to institute new charges, Fees, and methodologies pursuant upon thirty (30) days’ prior notice to Customer (which may be sent by email).
- No Taxes. The Fees do not include any sales tax, services tax, levies, duties, or similar governmental assessments of any nature. Customer is responsible for paying all taxes, if any, associated with the STW Solution provided under this Terms and Conditions, other than the income, property, and employment tax STW incurs in its ordinary course of business.
VI. Privacy & Data Security.
- Customer Compliance. Customer acknowledges and agrees that the access and use of the STW Solution requires that Customer receive sufficient consent and permission from Persons along with compliance with all applicable state and federal laws related to the collection, storage, use, distribution and deletion of Personal Data. Customer agrees that it will comply with all applicable state and federal laws, including those related to the privacy of Personal Data. Customer specifically agrees that it shall comply at all times with the CCPA, TCPA, and Industry Standards.
- Data Storage. During the Term, STW shall use commercially reasonable efforts to protect the privacy of all Customer information, including Confidential Information, that the Customer provides to STW or that the Customer uploads to the STW Solution.
- Access Control Information. Customer acknowledges and agrees that it shall be solely responsible for the identification, creation, delegation, decisions and security of User identification names, passwords, access codes or other User account-specific information for access. Customer shall immediately notify STW if Customer has actual knowledge of, or information suggesting, a security incident, data breach or other unauthorized access to the STW Solution.
- Definition of Confidential Information. The Disclosing Party has developed and continues to develop commercially valuable technical and nontechnical information (“Confidential Information”) that is proprietary and confidential and/or constitutes “trade secrets” as defined under the Defend Trade Secrets Act § 2(b)(1) (18 USC § 1839(3)), and pursuant to state and federal laws. Such Confidential Information, which is vital to the success of its business, includes, but is not necessarily limited to: computer programs, system documentation, data compilations, manuals, methods, techniques, processes, know-how, research, pricing policies, cost information, financial information, business plans, specialized requests, and documents developed by or for the Disclosing Party. No information shall be considered Confidential Information if Recipient Party can show by competent proof that such information was:
- at the time of disclosure, already known by, or is otherwise obvious to, Recipient or anyone skilled in the general field (although not necessarily as an expert or specialist), as shown by verifiable written records in the possession of Recipient;
- at the time of disclosure, or subsequently became, through no fault of Recipient, known to the general public through publication or otherwise;
- subsequent to disclosure, lawfully and independently received by Recipient from a third party who had the right to disclose it without restriction; or
- ordered to be released (publicly or otherwise) by a court order or the requirement of a government agency.
- Non-Disclosure of Confidential Information. Unless authorized or directed by the Disclosing Party in writing, the Recipient Party shall not, at any time during the Term, directly or indirectly, appropriate, disclose or divulge any Confidential Information to any person not then employed by the Recipient Party, or to any other person or entity (“Third Party”).
- Non-Use of Confidential Information. The parties agree that they shall use the Confidential Information solely for the mutual benefit of the parties in furtherance of this Terms and Conditions, as specifically approved by the Disclosing Party.
- Non-Circumvention of Confidential Information. Recipient expressly agrees that the Confidential Information disclosed, discussed and made available by the Disclosing Party is made solely with respect to the STW Solution and this Terms and Conditions. Recipient Party shall not seek to by-pass, compete, avoid or circumvent the Disclosing Party from any business, research or scientific opportunity that relates to the Terms and Conditions by utilizing any Confidential Information or by otherwise exploiting or deriving any benefit from the Confidential Information.
VIII. Representations and Warranties.
Customer hereby represents and warrants:
- The signatory to the Order Form is authorized on behalf of Customer to execute the Order Form, and open an account with STW.
- Execution of the Order Form does not violate or breach any other Customer obligation or contract.
- Customer’s access or use of the STW Solution pursuant to this Terms and Conditions shall not violate the personal or proprietary rights, including Intellectual Property rights, of any Person.
- That Customer shall not recklessly or with gross negligence place any virus, ransomware or other harmful code (“Virus”) into the STW Solution. For purposes of this representation and warranty, it shall constitute recklessness or gross negligence if the Customer fails to actively investigate, evaluate and/or prevent a Virus that is known to (i) a majority of the business entities with similar products and services to the Customer or (ii) any of the business entities that provide commercially available anti-virus software or applications.
- That it will use STW Solution in a manner consistent with any federal, state or local election, campaign finance, or lobbying law, regulation, or rule.
- Customer represents and warrants that it will use the STW Solution in compliance with the TCPA and any similar state laws. Without limiting the generality of the foregoing, Customer further represents and warrants that it will comply with all relevant rules, guidelines and industry specifications of mobile carriers and Industry Standards. STW may rely on this representation if STW provides information about Customer to register with the 10DLC or other registries.
- That it will comply with all state and federal laws related to privacy, including without limitation, state attorney general or federal agency guidelines including requirements for the collection, storage, use, distribution and deletion of personal information.
IX. Disclaimer of Warranties; Limitation of Liability; Insurance.
- EXCEPT AS PROVIDED IN THIS TERMS AND CONDITIONS, THE STW SOLUTION IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. STW MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. STW DOES NOT WARRANT OR REPRESENT THAT THE SOFTWARE OR SERVICES, INCLUDING AS TO THE STW SOLUTION, WILL BE UNINTERRUPTED OR ERROR-FREE. STW DOES NOT WARRANT THE RESULTS OR ACHIEVEMENT OF ANY SERVICES, AND DISCLAIMS ALL LIABILITY FOR ANY SERVICES PROVIDED BY TURNKEY SERVICES PROVIDERS PURSUANT TO CUSTOMER’S ORDER FORM(S). CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL STW BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SOFTWARE OR SERVICES WHICH GAVE RISE TO SUCH DAMAGES.
- Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL STW BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.
- THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
- Indemnification by STW. Subject to Section IX(B) (Limitation of Liability), STW will indemnify Customer from liability to third parties resulting from and against all claims and damages which claim alleges an infringement, misappropriation or violation of any third party’s Intellectual Property rights by the STW Solution. The foregoing obligations do not apply with respect to portions or components of the STW Solution: (i) not supplied by or originating with STW; (ii) that are modified after delivery by STW; (iii) that are combined with other products, processes or materials where the alleged infringement relates to such combination; (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (v) where Customer’s use of the STW Solution is not strictly in accordance with this Terms and Conditions.
Customer acknowledges and agrees that its sole remedy for the infringement obligation under this section is, at the sole election and discretion of STW, (a) replace or modify the software or service to be noninfringing, (b) obtain for Customer a license to continue using the STW Solution, or (c) terminate this Terms and Conditions and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees.
- Indemnification by Customer. The Customer shall defend, indemnify, and hold harmless from liability to third parties resulting from and against all claims and damages related to:
- any acts or omissions of the Customer or its Users, agents, or employees;
- any breach, or alleged breach, of the Order Form and this Terms and Conditions;
- any breach, or alleged breach, of Section VI (Privacy & Data Security); or
- any breach, or alleged breach, of Customer representations and warranties in Section VIII.
- Without limiting the generality of the foregoing, Customer shall indemnify and hold harmless STW from and against all fines, penalties, charges, fees or other costs as a result of Customer’s failure to comply with mobile carrier codes of conduct (“Carrier Fees”) including, without limitation, violations of acceptable use policies, codes of conduct, 10DLC requirements, evasive practices to avoid carrier or regulatory compliance, or other mobile carrier restrictions as may be implemented from time-to-time. Customer agrees to pay all such Carrier Fees upon demand by STW.
XI. General Provisions.
- Complete Agreement. These Terms and Conditions govern all Order Forms executed by and between STW and a Customer. Subject to the Order Form(s), this Terms and Conditions is the complete and exclusive statement of the mutual understanding of the parties regarding the services delineated on the applicable Order Form(s), and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Terms and Conditions. STW may modify or amend this Terms and Conditions by providing thirty (30) day advanced notice to the Customer by (i) email message at the address provided by the Customer, (ii) the Customer’s STW account interface, or (iii) other direct means as reasonably determined by STW. Customer’s continued use of the STW Solution following the effective date of such modification or amendment will constitute consent to the modified Terms and Conditions. If Customer does not agree to the modification or amendment, Customer must immediately stop using the STW Solution. The Customer may not modify the Terms and Conditions.
- Document Priority. In the event of a conflict between this Terms and Conditions, Order Form, attachments, or a modification or amendment, the conflict shall be resolved giving priority to a modification or amendment, then, in order, the Order Form, this Terms and Conditions, and any attachments.
- Assignment. This Terms and Conditions may not be assigned by either party without the prior written approval of the other party, which shall not be unreasonably refused, provided however that either party may assign the Order Form without consent in the event of a merger, sale, or reorganization in which the surviving entity owns or controls more than fifty percent (50%) of the acquired party and agrees in writing to assume the obligations under this Terms and Conditions.
- No Employment Relationship. Each party agrees that it is an independent contractor in relation to the other party with respect to all matters arising under this Terms and Conditions. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. Each party shall remain responsible, and shall indemnify and hold harmless the other party, for the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social security, workers’ compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements now existing or hereafter enacted and attributable to themselves and their respective people. Customer does not have any authority of any kind to bind STW in any respect whatsoever. Should any Turnkey Service Providers engaged by STW to provide turnkey Services pursuant to Customer’s Order Form(s), and such Turnkey Service Providers are determined to have been misclassified as independent contractors by the applicable governmental agency, Customer expressly agrees that it shall pay fifty percent (50%) of any amounts deemed due and owing, including without limitation to back-pay, penalties, fines, fees, and expenses associated with the misclassification of the Turnkey Service Providers as an independent contractor.
- California Law. This Terms and Conditions shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties agree to the personal jurisdiction by and venue in Orange County, California, and waive any objection to such jurisdiction or venue.
- Good Faith Resolution; Arbitration. The parties shall endeavor to resolve any dispute with respect to this Terms and Conditions in good faith within thirty (30) days of a dispute being raised. Any unresolved controversy or claim arising out of or relating to this Terms and Conditions, or the breach thereof, shall be settled by confidential binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be Santa Ana, California. The arbitration shall be governed by the laws of the State of California. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrators, all of their costs and fees. For the purpose of this provision, “costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys’ fees. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
- Publicity/Promotion. Except for the identification of Customer by its name and logo on STW’s website and in other written marketing materials as a customer of STW, neither party shall release any announcement, statement, press release, or other public materials relating to this Terms and Conditions or use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation, or sponsorship without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. STW retains the right to share its client list in non-public forums (e.g. phone calls, person-to-person emails. in-person conversations).
- Notices. All notices under this Terms and Conditions will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- Waiver. The failure of either Party to (a) insist upon or enforce strict performance by the other Party of any provision of this Terms and Conditions, or (b) exercise any right under this Terms and Conditions, shall not be construed as a waiver or relinquishment, to any extent, of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, such provision or right shall be and shall remain in full force and effect.
- UN Convention on Contracts and UCITA Not Applicable. This Terms and Conditions and the transactions contemplated herein are not and will never be subject to United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act (prepared by the National Conference of Commissioners on Uniform State Laws) as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction.
- Export Controls. Both Parties will adhere to all applicable laws relating to the export of technical data and will not export or re-export any technical data, any products received from the other Party or the direct product of such technical data to any proscribed country listed in such applicable laws unless properly authorized.
- Survival. Notwithstanding anything to the contrary that may be contained elsewhere in this Terms and Conditions, the following sections of this Terms and Conditions shall survive, and remain in full force and effect, following the expiration or the termination, for any reason, of this Terms and Conditions or the STW Solution license rights granted herein: Sections I, II(D), III, V, VI(A), VII, VIII, IX, X, and XI(B), (E), (F), (J), and (L-O).
- Severability. If any provision of this Terms and Conditions is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Terms and Conditions will otherwise remain in full force and effect and enforceable.
- Force Majeure. Neither Party will be liable for, or be considered in breach of or default under this Terms and Conditions on account of, any delay or failure to perform as required by this Terms and Conditions as a result of strike, fire, explosion, flood, riot, insurrection, governmental acts, labor conditions, epidemics or pandemics as declared by any agency of the US or California or the World Health Organization, acts of God, war, terrorism or business shutdowns as a result of a threat or suspected threat of terrorism or natural disaster, provided that the nonperforming Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party, including prior notice if and to the extent practicable.