General Terms & Conditions

Last updated on December 17, 2020

These Terms & Conditions are between Stirista, LLC (“Stirista”) and the Company identified on the initial Order Form (“Company”). Company and Stirista are hereinafter referred to jointly as the “Parties” or singularly as a “Party.” The Parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows:

  1. DEFINITIONS. Terms used in these General Terms & Conditions with their initial letters capitalized have the meanings ascribed to them in this section or where they are elsewhere defined in this Agreement. Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in this Agreement:
    1. “Affiliate” means any corporation or other entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, another corporation or entity. The term “control” with respect to any entity means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
    2. “Agreement” means the Terms & Conditions and all Attachments.
    3. “Attachment” means all Order Forms, Statements of Work, and all other documents referred to herein, and all other written exhibits, schedules, addenda, or other similar documents executed by the parties pertaining to the Services.
    4. “Change Order” means a written request to amend, expand, or reduce the agreed upon Services.
    5. “Certificate of Data Destruction” means a document signed by an authorized person of Company or Stirista that confirms destruction of all applicable data has been completed.
    6. “Confidential Information” means all non-public information disclosed by one Party to the other in connection with this Agreement which the disclosing Party marks as confidential or which the receiving Party should reasonably know to be the confidential information of the other party.
    7. “Creative” means without limitation, text-based, graphical, interactive, rich media, social, e-mail or video formats developed by the Company and used within the Platform.
    8. “End User” means Company’s employees who are authorized to access and use the Platform or Licensed Data in accordance with this Agreement.
    9. Indemnified Party” means Stirista, its respective Affiliates, the successors and permitted assigns of each such entity and the directors, officers, personnel, agents and representatives of each such entity.
    10. “Licensed Data” means proprietary information and/or data provided to the Company by Stirista.
    11. “Order Form” means the written documentation, once accepted by Stirista, that describes Stirista’s provision of the Services to Company.
    12. “Platform” refers to certain hosted cloud-based solutions provided by Stirista that enables the execution of omnichannel digital campaigns, access to analytics, reporting, and other functions as may be set forth in the applicable Statement of Work.
    13. “Representatives” means any employees, contractors, and agents of either Party.
    14. “Services” means all the services to be provided by Stirista to Company as set forth in applicable Order Forms and the Statement of Work, and includes, for purposes of clarity, the provision of access to and use of the Platform.
    15. “Statement of Work” or “SOW” means that written document referenced in the applicable Order Form, which describes and/or defines the Services offered by Stirista, as Stirista may amend such document from time to time.
    16. “Term” means the length of the Agreement set forth in the applicable Order Form, including any renewal periods.
    17. “Third-party Software” means technology and computer software made available to Company by a third-party.
  2. AGREEMENT.
    1. Stirista objects to the inclusion of any different or additional terms by Company in Company’s acceptance of this Agreement and/or the Order Form. Transactions and the Services between Stirista and Company will be solely governed by this Agreement and/or the Order Form, and any terms and conditions on Company’s internet site will be null and void and of no legal effect on Stirista. If this Order Form has been issued by Stirista in response to an offer by Company, and if any of the terms within this Agreement and/or Order Form are different from or additional to any terms of Company’s offer, then the issuance of this Agreement and/or Order Form by Stirista will constitute a conditional acceptance of Company’s offer as amended by this Agreement and/or the Order Form and will result in a binding contract if company assents by execution or performance thereof. If Company includes or attaches any such different or additional terms in Company’s purported and executed acceptance, then Company expressly agrees that such execution constitutes an acceptance of Stirista’s Agreement and/or Order Form and a binding contract will result solely upon Stirista’s terms and conditions as stated in this Agreement and/or Order Form, which contract will not include Company’s different or additional terms or conditions. If any part of this Agreement conflict with any specific terms included within the Order Form issued by Stirista, then such specific terms shall control, except as provided in elsewhere herein.
    2. To the extent permitted by applicable laws, the Parties shall not be bound by or be liable for any statement, representation, promise, inducement or understanding of any kind or nature not set forth herein.
    3. No changes, amendments, waivers or modifications of the terms or conditions of this Agreement and/or the Order Form shall be valid unless reduced to writing and signed by both Parties.
  3. PRIVACY POLICY. By enrolling in or using the Services, the Company acknowledges and consents to Stirista’s Privacy Policy available at https://www.stirista.com/privacy-policy.
  4. SERVICES.
    1. This Agreement shall apply to the delivery of Services as further described in any Order Form that may be proposed and mutually approved in writing by the Parties. Company and Stirista will execute one or more Order Forms, each of which will include, at a minimum, a listing of the Services being ordered and the associated fees. Except as otherwise provided on the Order Form or this Agreement, each Order Form is non-cancellable by Company and will be subject to the terms and conditions of this Agreement.
    2. The Services may include Licensed Data, access to and/or use of the Platform, or other services as determined by Stirista in its sole and exclusive discretion. Services may be defined by and are subject to the definitions and terms within the SOW attached to the Order Form. Stirista hereby grants to Company a limited, revocable, non-exclusive, non-transferable license to use and access the Services in accordance with this Agreement and during the Term of this Agreement subject to a material default and breach of the Agreement or Order Form by Company.
    3. Stirista will make the Services available to the Company’s End Users via password-protected online access accessible by Company with usernames and passwords, via a mutually agreed upon access point by the Parties. Stirista shall provide the Company and its End Users ongoing support to assist with accessing the Platform and License Data. Stirista will make its personnel available between the hours of 9 A.M. and 6 P.M. Central Time (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours, subject to any applicable holidays. Nothing herein or anything in any other agreement or document, including the Order Form or in any warranty, shall obligate Stirista to deliver support services in excess of what is described herein.
    4. Throughout the Term of the Agreement, Stirista may update Licensed Data on an ongoing basis according to the scope of the subscribed Services. Company understands the Licensed Data may change throughout the Term as data is updated and/or changes based on industry standards which are constantly evolving, and that Company has the right to access and use the Licensed Data as it exists at any time pursuant to these terms and conditions and the Order Form. Features and functions of the Platform are provided “as is” and they may be modified, supplemented, or removed from time to time by Stirista. Stirista assumes no liability due to any modifications, supplementations, removals, updates, or terminations to/of any Service, provided the product or service does not materially change based on the description in the Order Form or SOW.
    5. Stirista shall use commercially reasonable efforts to promptly correct, at no charge to Company, any errors that Stirista is solely and exclusively responsible for, in the Licensed Data that are made known to Stirista by written notice from Company describing such errors in sufficient detail with any necessary backup information or documents. However, Company acknowledges that some corrections/prevention of errors in the Licensed Data shall be dependent on the availability of the source of the applicable data. Under no circumstances shall Stirista be obligated to correct, or otherwise be responsible for, errors in any of the Company’s data or information, or Third-Party Software, on-premise and cloud-based databases, or separately owned or licensed software due to errors in the Licensed Data or errors in the Licensed Data that were caused all or in part by errors in any of the systems stated or caused by Company’s actions or inactions.
    6. Company shall cooperate with Stirista as reasonably required by Stirista in its sole and exclusive discretion, for Stirista to perform the Services in a timely and professional manner in accordance with applicable industry standards and in accordance with the Order Form.
    7. From time to time throughout the life of this Agreement, either Party may submit a Change Order. Neither Party shall be responsible for any Change Order unless agreed to in writing by both Parties. Stirista shall not commence work related to any Change Order until both Parties have signed such in writing, the signing of which shall not be unreasonably withheld, conditioned, or delayed. The Parties shall discuss and negotiate in good faith any schedule and cost adjustments arising from such Change Order and such shall be paid in accordance with the terms of the Order Form.
  5. THIRD-PARTY SOFTWARE. Company may ask for Stirista’s Platform, Licensed Data or other Services be compatible with Company’s Third-Party Software, including CRM, marketing automation tools, or other software separately licensed or owned by the Company. Stirista will work with the Company to integrate with its Third-Party Software using pre-built integrations, or custom integrations for an additional cost based on the scope of work required. Stirista is not responsible for and does not endorse any Third-Party Software or websites which integrate with Stirista’s Platform.
  6. OWNERSHIP.
    1. Company may not reverse engineer, dissemble, copy (in whole or in part), reproduce, appropriate, assemble, compile or decompile any part of the Platform, except to the extent required to obtain interoperability with Third-Party Software as expressly agreed to between Company and Stirista , and in each instance only with Stirista’s prior written consent. Company agrees that it will not receive, expressly or implicitly, by estoppel or otherwise any ownership right, title, or interest in the Platform, nor any ownership nor license in or to use any patent, copyright, trade secret, trademark, or other intellectual property rights therein or of Stirista’s except solely for the limited extent required by Company to use the Platform or to receive the Services. Stirista reserves all rights and license to exclusively use in and to the Platform and the Services which it does not expressly grant to Company under this Agreement.
    2. AUTHORIZED USES. Company shall not use the Licensed Data for any purpose outside of business to business sales, marketing, or business development activities and any such permitted use shall clearly and unequivocally state that the Licensed Data is the sole and exclusive property of Stirista. Company shall not access or use the Licensed Data for any other entity or person except Company and even then, solely and exclusively for the purposes permitted in the Order Form and this Agreement. Company may use the Services to: (i) view the Licensed Data, (ii) communicate with any Licensed Data contact as it relates to their profession or business interests, (iii) identify prospective sales opportunities, researching existing customers or prospects, or (iv) for any other purpose listed on the SOW and as expressly agreed to by Stirista. Company shall not allow anyone who is not an End User to access or use the Services, including Licensed Data or usernames and passwords. Company shall not distribute, sublicense, transfer, sell, offer for sale, disclose, or make available any of the Licensed Data or any part of the Services to any third-party. Company shall not incorporate any portion of the Services or Licensed Materials into Company’s own products or services. Any failure of the Company to comply with the terms of this Section 6.3 shall be a default and breach of this Agreement which shall cause Stirista to incur damage in an unknown and immeasurable amount and which are hard to ascertain and as such Company shall be liable to Stirista, as liquidated damages and not as a penalty, a sum equal to $50,000.00 for each individual breach of this Section 6.3. THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY THE STIRISTA FOR A VIOLATION OF THIS SECTION AND THAT THE AMOUNTS OF DAMAGES SET FORTH HEREIN IS FAIR AND REASONABLE COMPENSATION FOR SUCH LOSS.
  7. LIMITATION ON USE.
    1. Company shall not make efforts to override or circumvent any security feature, control, or use limits of the Platform and any attempt by Company to do so shall be a default and breach of this Agreement and Company shall indemnify, defend, and hold harmless Stirista and Indemnified Parties (including the payment of reasonable attorneys’ fees and costs) for any claims, proceedings, demands, liabilities, obligations, lawsuits, settlements, or any other similar matter that arise as a result or are caused by, directly or indirectly, a security breach or such other default or breach of this Section 7.1 (the “Indemnification Obligations”). Company shall not use the Platform or Licensed Data in any way not permitted by this Agreement and any such actions on the part of Company shall be a default and breach of this Agreement and shall trigger the Company’s Indemnification Obligations. If Company’s access to the Services are limited in any way by this section of the Agreement, Company may request the limitation be removed, and Stirista may, but is not required to, modify the limitation at its sole and exclusive discretion.
    2. Under no circumstances shall the Licensed Data be used by any person: to advertise, sell, or exchange any products or services that involve any illegal or illicit activities, including but not restricted to (a) illegal drugs, and (b) pornography and any such actions shall constitute a default and breach of this agreement and shall trigger Company’s Indemnification Obligations.
  8. STIRISTA OBLIGATIONS. Subject to Company’s compliance with the terms and conditions of this Agreement, Stirista shall (i) conduct business in a courteous and professional manner under commercially reasonable standards with Company; (ii) use commercially reasonable efforts to provide the Services as set forth in the Order Form and SOW; (iii) comply with applicable state, federal, and international laws, including, but not limited to the California Consumer Privacy Act (CCPA); (iv) not use or sell data, as defined by applicable laws, provided by Company for any other purpose except as requested by Company, except for, any anonymized benchmarking or analytics conducted for the benefit of Stirista or another client of Stirista.
  9. COMPANY OBLIGATIONS. Company shall at all times (i) submit information and requests relating to the Services to the designated Stirista contact; (ii) take all necessary precautions to protect and secure the data owned by Stirista and delivered to the Company as a part of the Services; (iii) comply with applicable state, federal, and international laws, including, but not limited to the California Consumer Privacy Act (CCPA) and comply with the terms of this Agreement and the terms of the Order Form; (iv) utilize voter or political identifying data for political use only; (v) provide written documentation for all requests, including those made over phone calls or in person; (vi) follow appropriate notification procedures as defined by Stirista and Company; (vii) be willing and available to provide critical information within one (1) business day of a request submitted to Stirista Representatives.
  10. COMPENSATION.
    1. Company is deemed to have satisfied itself as to the correctness and sufficiency of the compensation Company is required to pay for the Services listed in the Order Form and as the same may be modified from time to time by any applicable Change Order (the “Order Form Price”). Such Order Form Price is exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with, any of the Services rendered.
    2. Although not expected, pre-approved expenses associated with personnel travel or third-party fees related to the provision of the Services may be invoiced to the Company for reimbursement. Additionally, Company will be responsible for reimbursing Stirista for any and all third-party fees Stirista incurs associated with the SOW or the work laid out on the Order Form. Stirista will invoice the Company within the month Stirista incurs the expense. All invoices are due net 30 unless otherwise provided in the applicable Order Form.
    3. Company will pay Stirista the fees as further described in the applicable Order Form. All invoices shall provide details regarding the fees due. Company shall pay all invoices within thirty (30) days after receipt of such invoice. Any invoice not paid within such thirty (30) day period will incur interest at five percent (5%) annually compounded on a monthly basis. If Company has not paid within forty-five (45) days of the invoice date, Stirista has the right to suspend services. This section shall apply to all invoices, unless otherwise provided in the applicable Order Form, in which case the terms of the Order Form will govern. Company waives its right to dispute any invoice after sixty (60) days following the date Stirista issues the invoice or any invoice that has been paid by Company.
  11. CONFIDENTIALITY.
    1. Each Party may be exposed to the other Party’s Confidential Information during each Party’s performance under this Agreement. Each Party, on behalf of itself and its Representatives and agents, agrees not to, except as set forth below or as required by applicable law or regulation, use or disclose Confidential Information during or after the term without the prior written consent of the other party. To protect Confidential Information, each Party agrees to: (i) limit dissemination of Confidential Information to only those Representatives and agents on a “need to know” basis in connection with this Agreement; (ii) advise each Representative/agent who receives Confidential Information of the confidential nature of such information; and (iii) have appropriate agreements, policies and/or procedures in place with such Representatives/agents sufficient to enable compliance with these confidentiality obligations. Nothing in this section will prohibit either party from disclosing Confidential Information to that party’s professional advisors who are bound by a duty of confidentiality at least as restrictive as set forth in this Agreement. This section will survive termination of this Agreement for so long as each party considers particular information to be Confidential Information.
    2. Stirista reserves the right to utilize Company’s submitted queries for the sole purpose of corroborating the association of data points within Stirista’s data repositories for the delivery of the solutions provided to Company.
  12. AVOIDANCE OF INFRINGEMENT.
    1. RESERVED.
    2. Company represents, warrants, and covenants to Stirista that the Services Company is requesting Stirista perform and the Licensed Data Company is providing to Stirista in order for Stirista to perform such Services does not infringe, directly or indirectly, in whole or in part, upon any patent, copyright, trade secret, trademark, trade name, or other intellectual property right of any third party. If Company becomes aware that the data provided to Stirista possibly infringes on one or more patents, copyright, trade secret, trademark, trade name, or other such intellectual property rights of any third party, Company shall immediately notify Stirista in writing. IN REGARD TO CLAIMS MADE AGAINST STIRISTA AND OR ANY OTHER INDEMNIFIED PARTY BY ANY THIRD PARTY, COMPANY AGREES TO RELEASE, DEFEND, PROTECT, INDEMNIFY AND HOLD STIRISTA, AND ANY OTHER INDEMNIFIED PARTY, THEIR AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, CONTRACTORS, AGENTS, SUPPLIERS, USERS, SUCCESSORS, AND ASSIGNS, HARMLESS FROM AND AGAINST ANY AND ALL COSTS (INCLUDING ATTORNEY FEES AND COURT COSTS), EXPENSES, FINES, PENALTIES, LOSSES, DAMAGES, AND LIABILITIES ARISING OUT OF ANY ALLEGED OR ACTUAL PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE NAME, OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT OR OTHER CLAIM, DEMAND OR ACTION ARISING FROM OR RELATED TO THE SERVICES OR PERFORMANCE OF THE SERVICES.
  13. RELATIONSHIP OF THE PARTIES. The Parties expressly intend and agree that Stirista is acting as an independent contractor and not as an agent, employee, or partner of Company or its franchisees. Stirista understands and agrees that it shall not be entitled to any of the rights and privileges established for Company’s employees, including but not limited to retirement benefits; medical or life insurance, or disability coverage; severance pay; and paid vacation or sick pay. Stirista understands and agrees that Company shall not pay or withhold from the compensation paid to Stirista any sums customarily paid or withheld for or on behalf of employees for income tax, unemployment insurance, social security, workers compensation, or any other withholding tax, insurance, or payment, and all such payments as may be required by law are the sole responsibility of Stirista. Stirista understands and agrees that Company shall, when required, issue Stirista an IRS Form 1099. Stirista shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Stirista’s performance of the Services and receipt of fees under this Agreement or any applicable Order Form.
  14. WARRANTIES.
    1. Stirista represents and warrants to Company that:
    2. Stirista has the full right, power, and authority to enter into this Agreement and the Order Form and perform the Services and its other obligations hereunder.
    3. Stirista warrants that during the term of this Agreement, Stirista shall remain in full compliance with all applicable laws, regulations, and permit requirements, including but not limited to labor, safety, environmental, data privacy (including the CCPA after it is enforceable), and telecommunications laws (the Telephone Consumer Protection Act, the CAN-SPAM Act, and the Canadian Anti-Spam Legislation). Any time Stirista reasonably believes that it is not in full compliance hereof or Company reasonably determines Stirista to be in breach of this provision, Stirista shall promptly notify Company in writing and indicate the specific plan to cure the breach of this warranty.
    4. Stirista further warrants that all Services performed pursuant to this Agreement and/or the Order Form or any applicable SOW will be performed in accordance with the general standards and practices of the web and mobile design and development and digital marketing industry in existence at the time the Services are being performed.
    5. RESERVED
    6. Company represents and warrants to Stirista that:
    7. Company has the full right, power, and authority to enter into this Agreement and agree to its other obligations hereunder, and its execution of this Agreement and in so doing shall not result in a breach of or default under any other agreement to which Company is a party or by which it is bound.
    8. RESERVED
    9. Company warrants that during the term of this Agreement, Company shall remain in full compliance with all applicable laws, regulations, and permit requirements, including but not limited to labor, safety, environmental, data privacy, and telecommunications laws (such as the Telephone Consumer Protection Act, the CAN-SPAM Act, and the Canadian Anti-Spam Legislation) and Company’s failure to remain in such compliance will result in a material default and breach of this Agreement and the Order Form. Should Company discover it is not in compliance with any applicable laws, regulations, and permit requirements, Company shall within twenty-four (24) hours notify Stirista of such noncompliance and any steps taken or being taken in order to comply with such applicable laws (“Non-Compliance Notice”). Company shall indemnify, defend, and hold harmless (including court costs and attorneys’ fees) Stirista from and against any and all claims, allegations, demand, lawsuits and any other similar matter arising from Company’s failure to comply with all applicable laws, regulations, and permit requirements.
  15. LIMITATION OF LIABILITY. NOTHING CONTAINED IN THIS AGREEMENT OR ANY STATEMENT OF WORK SHALL MAKE STIRISTA LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE ORDER FORM. IN NO EVENT SHALL STIRISTA BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, LOST DATA, OR LOST SAVINGS), EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES.
  16. INDEMNIFICATION.
    1. RESERVED
    2. COMPANY AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS STIRISTA, AND ANY OTHER INDEMNIFIED PARTY INCLUDING THEIR AFFILIATES, EMPLOYEES, PARTNERS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS, AGAINST ANY COSTS (INCLUDING ATTORNEY FEES AND COURT COSTS), FINES, PENALTIES, DAMAGES, AND LIABILITIES, ARISING FROM, ALLEGED TO ARISE FROM, OR IN ANY WAY ASSOCIATED WITH ANY DEFECT IN THE SERVICES OR PERFORMANCE OF THE SERVICES, FURNISHED UNDER THE ORDER FORM, THIS AGREEMENT, OR THE NEGLIGENCE OR FAULT OF COMPANY, COMPANY’S AGENTS, OR THOSE FOR WHOM COMPANY IS RESPONSIBLE. COMPANY FURTHER AGREES TO RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS STIRISTA, AND ANY OTHER INDEMNIFIED PARTY, INCLUDING THEIR AFFILIATES, EMPLOYEES, PARTNERS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS to the fullest extent permitted by law, from and against any and all liabilities, losses, damages (including damages CAUSED BY A SECURITY BREACH OR A DATA BREACH) and, without limitation, ANY CLAIMS ARISING FROM THE SERVICES AND/OR PERFORMANCE OF THE SERVICES AND AGAINST ANY fines, settlement amounts, costs, expenses, legal fees, investigative fees and court costs incurred in connection with any action, suit, proceeding, claim, demand, investigation, inquiry (formal or informal), or any settlement thereof (whether or not a formal proceeding or action has been instituted) which may arise out of, or in connection with, THE SERVICES OR PERFORMANCE OF THE SERVICES. STIRISTA, the INDEMNIFIED PARTIES and the insurers of each, IF ANY, shall not financially contribute in any way to defense and indemnity obligations of COMPANY, whether or not covered by insurance.
  17. TERM AND TERMINATION.
    1. This Agreement shall begin on the Effective Start Date as stated on the Order Form, and shall continue for the stated number of months within the Order Form (the “Initial Term”), and will automatically renew for successive twelve-month periods (the “Term”) unless either party gives the other written notice of non-extension no later than ninety (90) days prior to the then-current expiration date. At the time of renewal, the fees due to Stirista for the Services to be performed during the renewal period shall be equal to the annualized amount of the fees during the Initial Term, plus 10%, applying any discount, and multiplied by the length of the renewal period.
    2. Stirista may terminate this Agreement by sending written notice of termination to Company (which may be satisfied if sent via email or other means of electronic communication).
    3. Either party may terminate this Agreement immediately by providing written notice to the other party if any of the following occur: (1) the other party becomes insolvent; (2) a petition in voluntary or involuntary bankruptcy is filed by or against the other party under any chapter of the United States bankruptcy laws; (3) assignment for the benefit of creditors or similar disposition of the assets of the other party; (4) any act of the other party that materially impairs the good will of the terminating party’s trade name, service mark, logotype, or other commercial symbol; or (5) the failure by the other party to comply with applicable data privacy laws or to protect any personally identifiable information of the terminating party, provided that the offending party is given the opportunity to cure, but does not successfully cure such alleged non-compliance within thirty (30) days of the initial notice of such non-compliance.
    4. Services to be performed pursuant to this Agreement shall cease immediately upon any termination of this Agreement. Upon expiration or termination of this Agreement for any reason, Company shall pay Stirista in accordance with Section 10 the compensation due for Services completed before such expiration or termination. On termination, Company will return to Stirista all Stirista-owned data. Company shall remove from its server any Licensed Data provided to Company by Stirista during the term of the Agreement and provide a Certificate of Data Destruction within two (2) days of such expiration or termination.
    5. These provisions, which by their nature are intended to survive the termination or expiration, of this Agreement, shall survive the termination or expiration of this Agreement.
  18. FINANCIAL REPRESENTATION. Company represents and warrants that it is and will remain throughout the term of this Agreement and the Order Form solvent and adequately capitalized and financially capable to perform all obligations necessary to compensate Stirista for the Services, collectively referred to as “financial capability.” From time to time and at Stirista’s request, Company shall provide Stirista with information satisfactory to Stirista to verify Company’s financial capability within five (5) days of Stirista’s request. In the event that reasonable grounds for insecurity over Company’s financial capability arise, Stirista may exercise all available remedies and requiring Company to provide adequate security from third parties in a form and from a company acceptable to Stirista, such as irrevocable and unqualified bonds, letters of credit, or guarantees in Stirista’s favor. As examples only and without limitation, the Parties agree that delays by Company in paying invoices or failure to timely verify its financial capability after any such request shall be deemed to be reasonable grounds for insecurity.
  19. NOTICES. Any notice given in accordance with this Agreement will be in writing and will be given by either (a) personal service by courier; (b) United States certified mail, return receipt requested, postage prepaid to the addresses appearing in the Order Form; or (c) email notification, provided that recipient confirms receipt via return email. Notice given by personal service will be deemed effective on the date it is delivered to the addressee as confirmed by the courier service, and mailed notice will be deemed effective on the third day following its placement in the mail addressed to the addressee.
  20. ASSIGNMENT. Company may not assign its rights or delegate its obligations under this Agreement without Stirista’s prior written consent. Stirista may assign its rights or delegate its obligations under this Agreement in its sole and exclusive discretion. Any purported assignment in violation of this section will be void.
  21. GOVERNING LAW AND VENUE. All matters arising in connection with this Agreement or the enforcement or construction thereof will be governed by (without regard to conflict-of-laws provisions) and resolved in accordance with the laws of the State of Texas, U.S.A., Bexar County, San Antonio, Texas. Venue for any dispute arising in connection with this Agreement or the enforcement or construction thereof shall be reserved for the state or Federal district courts in Bexar County, Texas.
  22. FORCE MAJEURE. Stirista shall not bear any responsibility or liability for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any act of God, act of governmental and/or quasi-governmental authority, act of public enemy, or due to war, riot, flood, terrorism, civil commotion, insurrection, severe weather conditions, pandemic, public health crisis, or any other similar or related cause beyond the reasonable control of Stirista.
  23. EXCLUSIVITY. Company declares that it is currently not a party to any other contract that contains terms and provisions that might impede or limit their performance of any obligations under this Agreement. This Agreement shall not impair or impede Stirista’s ability to enter into additional or different contracts with any other companies, persons, or parties providing the same or similar services as the Services or any other services.
  24. SEVERABILITY; NON-WAIVER. If any provision of this Agreement is held to be illegal, unenforceable, or invalid by any court of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect. All rights and remedies of Stirista hereunder and all those given to it by law and equity shall be cumulative, concurrent, nonexclusive, and in addition to any right that might otherwise apply. The failure or delay of either Party to enforce at any time any provision of this Agreement shall not constitute a waiver of such Party’s right thereafter to enforce each and every provision of this Agreement.
  25. PUBLICITY. Stirista may include Company on its client list in presentations, white papers, or reports made to shareholders, clients, and potential clients, provided no representation, express or implied, is or will be made as to Company’s opinion of Stirista’s Services. Any proposed press releases, advertising, or other promotional materials that use the other party’s name or trademark must be sent to the other party for approval, which shall not be unreasonably withheld. Stirista may publish a case study about Company’s use of the Services.
  26. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
  27. ENTIRE AGREEMENT; MODIFICATION. This Agreement and its Attachments constitute the entire agreement between the Parties and supersedes all prior oral or written negotiations and agreements between the Parties with respect to the subject matter hereof. No modification or amendment of this Agreement (including any Attachment hereto) shall be effective unless in writing signed by both Parties.
  28. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall be one and the same agreement.