Stratus22 Enterprise Terms and Conditions
By signing an Order Form or accepting the Services, you acknowledge you have read and agree to be bound by these Terms and Conditions (“Terms and Conditions”) with respect to the purchase of the Services. These Terms and Conditions, together with the order form you signed along with any attached Exhibits and Schedules (the “Order Form”) (hereinafter collectively referred to as the “Agreement”), will constitute the entire agreement between Stratus22 LLC. (“Stratus22”) and the client (“Client” or “you”) for the products and services defined in the Order Form (the “Services”), taking precedence over and superseding all other communications, whether written or oral, with respect to the Agreement. Except as otherwise provided herein, the Agreement may be modified only by a written amendment signed by both you and Stratus22.
1. RESPONSIBILITIES AND OBLIGATIONS. Stratus22 agrees to provide Client the Services specified in the Order Form for the term specified herein subject to these Terms and Conditions and Client’s performance of its obligations hereunder including, without limitation, Client’s payment of all required fees.
2. BILLING AND PAYMENT. Client shall be invoiced monthly, quarterly or annually in advance for all amounts due in respect of the Services provided pursuant to these Terms and Conditions. All fees specified herein or the Order Form shall exclude applicable taxes and government charges and fees (collectively “Taxes”); Client will be responsible for paying all applicable taxes and will defend and indemnify Stratus22 from and against all sales, use, personal property, or other taxes (including any penalties, fines or interest thereon) as a result of the Agreement, except to the extent such taxes are based upon revenue earned by Stratus22 and are imposed on Stratus22 by any federal, state or local government or taxing authority with respect to the Agreement. To the extent that Stratus22 is required to collect any Taxes, Stratus22 shall add such amounts to Client’s invoice and Client shall be obligated to pay such Taxes in addition to the Fees. All amounts due hereunder shall be paid by Client in U.S. funds due upon the Client’s receipt of Stratus22’s invoice via credit card, check or wire transfer to an account designated by Stratus22. By electing automatic payment of amounts due hereunder by credit card or debit to Client’s bank account or by providing credit card or bank account information to Stratus22, as applicable, Client hereby authorizes Stratus22 to charge to Client’s credit card (on file with Stratus22) or debit from Client’s bank account (on file with Stratus22) all amounts due hereunder on the date indicated on the applicable invoice. Amounts due hereunder for the Services are non-cancelable, non-refundable and not subject to set-off claims of Client. In the event of non-payment, Stratus22 may suspend performance of Services and Client’s access to Stratus22’s Client Portal. In the event that Client disputes any invoiced fees, Customer shall provide written notice of such dispute not later than ten (10) days after receiving the invoice which is the subject of the dispute and timely pay any undisputed amounts. The parties agree to cooperate in good faith to resolve any disputed invoice or fee within ten (10) days of Stratus22’s receipt of a notice of dispute.
3. MODIFICATION OF SERVICES. Stratus22 may modify the Services at any time, and Client shall not have the right to cancel or terminate the Services in the event of such modification of Services unless the modification substantially and materially lessens the Services to be received by Client pursuant to an applicable Order Form. In such an event, Stratus22 shall use commercially reasonable efforts to provide Client with at least thirty (30) days’ prior written notice of such change and Client shall have thirty (30) days from the date of such notice to terminate the Services without penalty by providing written notice to Stratus22. Failure to provide Stratus22 with written notice of termination within such thirty (30) day period or use of the Services thereafter shall constitute your acceptance of such changes. Client’s right to terminate the Services without penalty as provided in the preceding sentence shall be Client’s sole and complete remedy for any such change and Stratus22 shall not be liable nor shall it be obligated to refund any fees previously paid for the Services as a result of making any such change.
4. TERM. The Effective Date is defined as the date on which the last party executes the Agreement/Order Form. The Term of the Services shall begin on the Effective Date and shall continue for the period defined in the Order Form, unless terminated in accordance with this Section 4.
If a Proof of Concept (POC) is defined in the Order Form, Client may terminate the Services without cause or penalty at the expiration of the POC Term by providing written notice to Stratus22 at least ten (10) days prior to the expiration of the POC Term. If Client does not provide such termination notice to Stratus22, the Term of the Order Form and these Terms and Conditions shall renew automatically for a one (1) year Term. Client may terminate the Services without cause or penalty at the expiration of the one (1) year Term by providing written notice to Stratus22 at least sixty (60) days prior to the expiration of the one (1) year Term, or the Order Form and these Terms and Conditions shall renew automatically for two (2) year periods; either party may then provide written notice of non-renewal at least sixty (60) days prior to the end of the then-current two (2) year Term.
If a POC Term is not included in the Order Form, upon expiration of the Initial Term defined in the Order Form or any Renewal Terms (as defined below), the Term of the Order Form and these Terms and Conditions shall renew automatically for consecutive two (2) year periods at Stratus22’s then current pricing for the Services (each, a “Renewal Term”) unless either party provides to the other party written notice of non-renewal at least sixty (60) days prior to the end of the then-current Initial Term or Renewal Term.
5. TERMINATION OF SERVICES. Stratus22 reserves the right, in its sole discretion, to cancel or suspend Services, in whole or in part. Except when a Client fails to pay any amounts due under the Order Form or these Terms and Conditions within ten (10) days of the due date, either party may terminate the Services for a material breach of these Terms and Conditions and/or Order Form upon thirty (30) days’ prior written notice. The party receiving such notice shall have thirty (30) days from receipt of such notice to remedy the breach described in the notice, unless it is not possible to remedy such breach within thirty (30) days. If it is not possible to remedy the breach within (30) days, the breaching party shall remedy the breach within a reasonable time as agreed upon in writing by the non-breaching party. No expiration or termination of the Services shall relieve Client from liability for any breach of these Terms and Conditions. Client shall pay within thirty (30) days of any expiration or termination any amounts owed to Stratus22 which have accrued under the Order Form or these Terms and Conditions before such expiration or termination. Unless the Services were terminated by Client either (i) as a result of Stratus22’s material breach and failure to cure such breach within thirty (30) days of Client’s notice or (ii) as provided in Section 3 in response to a proposed material modification of the Services by Stratus22, as the Client shall also pay Stratus22 within such thirty (30) day periods all the fees for the Services that would have been provided by Stratus22 for the remainder of the Initial Term or then-current Renewal Term. Client’s right to receive Services from Stratus22 and access the Portal shall cease immediately upon termination or expiration.
6. CLIENT PORTAL. Stratus22 hereby grants to Client a non-exclusive, non-transferable and revocable license to access and use the Stratus22 client portal (the “Portal”) in connection with the Services. Such use of the Portal shall be solely for the use of: (i) Client; (ii) a third party authorized by Client and approved in writing by Stratus22; or (iii) on behalf of Client’s affiliate, where Client has been authorized to use the Portal on behalf of such company. Client is responsible for all usage or activity on the Portal when accessed using credential assigned to Client, including use of the portal by any third party authorized by Client. Client shall use the Portal as it is designed and only for the purposes set forth in these Terms and Conditions or Order Form. At its sole discretion, Stratus22 may change, suspend or discontinue any access or use of the Portal at any time without notice or liability including, but not limited to, when Client (i) fails to make payment as described in Section 2 herein; (ii) materially breaches these Terms and Conditions or Order Form subject to the cure obligations set forth in Section 5; or (ii) engages in any misuse, fraudulent, abusive or otherwise illegal activity. As between Client and Stratus22, the Portal and the data, functionality, images, and all other tangible and intangible components thereof, as well as any and all associated intellectual property rights with respect to such items are the property of Stratus22. Client and its authorized users may not copy, reproduce, republish, upload, post, transmit, distribute, sell, publish, broadcast, circulate, data mine, or use any robot, spider, or other automatic device, or manual process, to monitor or copy the contents of the Portal or exploit the Portal for any commercial purpose except for the Client’s use of the Services for their internal business purposes. The Services shall include Client’s right to access and use the Portal for the purpose of any reference in the Terms and Conditions to Stratus22’s rights to change, suspend, or terminate the Services regardless of whether expressly stated in such section or not.
7. CONFIDENTIALITY. Stratus22 acknowledges that all information provided by Client will or may be confidential, proprietary, or affected by competitive sensitivity and will treat all of the information as confidential and may be disclosed to employees, consultants, parent company, and/or affiliates on a need-to-know basis only. At Client’s written request, Stratus22 will return all copies of any written information when it no longer needs the information, excluding billing data, Campaign Information and documentation which may be maintained by Stratus22 in accordance with its record retention practices and policies.
8. NON-SOLICITATION. During the term of the parties’ relationship in connection with the Services and for a period of two (2) year after termination of the Services, the Client may not solicit any existing Stratus22 employee or contractor for the purpose of conducting sales or marketing for any entity or person other than Stratus22. The Client further agrees not to disrupt or interfere with the business relationship between Stratus22 and its existing employees, vendors, and/or subcontractors.
9. INDEMNIFICATION. Except as provided in the section titled “Arbitration,” with respect to arbitration proceedings between Client and Stratus22, Client shall indemnify, defend, hold harmless, and fully discharge Stratus22, its subsidiaries, business units, affiliates, parent companies, its predecessors and successors and its respective employees, subcontractors, officers, directors, members, managers, shareholders, legal counsel, agents, trustees, joint venturers, partners, successors, assigns, and affiliates, past and present (each an “Indemnified Party”) from and against any and all claims, proceedings, actions, demands, suits, damages, costs, expenses and other liabilities and losses of whatsoever kind or nature, including reasonable attorney’s fees and costs, (“Claims”) incurred by, or threatened, imposed or filed against, any Indemnified Party by a third party and arising from, attributing to, or related to (i) Client’s breach of any representations or warranties under these Terms and Conditions; (ii) Client’s breach of these Terms and Conditions; (iii) the marketing of Client’s products or services including, but not limited to, any claims in the Campaign Information approved or provided by Client; (iv) the manufacture, delivery, sale, or use of Client’s products or services; or (v) any act or omission by Stratus22, including any negligent or intentional acts, and any act not authorized under the terms of the Agreement. In addition, Client agrees that it will not assert any claim against any Indemnified Party in any court of law based upon or related to the Services, Order Form, and/or Agreement. In no event shall Client settle, compromise or consent to the entry of any judgment, or otherwise seek to terminate any pending or threatened Claim, in respect of which the Indemnified Party is entitled to indemnification hereunder (whether or not the Indemnified Party is a party thereto), without the prior written consent of the Indemnified Party; provided, however, that the Client shall be entitled to settle any claim without the written consent of the Indemnified Party so long as such settlement (i) only involves the payment of money by Client; (ii) provides for an unconditional release in favor of the Indemnified Party; and (iii) in no way adversely affects any rights of the Indemnified Party.
10. No Reverse Engineering. The Parties agree that the software programs of the disclosing Party contain valuable confidential information and the non-disclosing Party agrees that it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information of the disclosing Party without the prior written consent of the disclosing Party.
11. WARRANTY DISCLAIMER. EXCEPT FOR THE OBLIGATIONS SET FORTH UNDER THESE TERMS AND CONDITIONS, THE SPECIFICATIONS AGREED UPON BY CLIENT AND Stratus22 AS DESCRIBED IN THE ORDER FORM, AND/OR IN ACCORDANCE WITH APPLICABLE LAW, Stratus22 SERVICES ARE PROVIDED ON AN “AS IS” BASIS “WITH ALL FAULTS,” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, Stratus22 MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED OF ANY KIND – INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT – AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES, REPRESENTATIONS OR GUARANTIES OF ANY KIND REGARDING THE SERVICES. Stratus22, its parents, subsidiaries, affiliates, officers, agents, employees, partners, and licensors make no warranty that (a) the Services will meet Client’s requirements; (b) the Services or the client portal will be uninterrupted, complete, accurate, timely, secure, virus-free, or error-free; or (c) the results that may be obtained from the use of the Services will be accurate or reliable. CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED, OR BASED ITS DECISION TO ACCEPT THE AGREEMENT, ON ANY WARRANTIES OF Stratus22 NOT EXPRESSLY SET FORTH HEREIN.
12. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND WITHOUT LIMITING THE FOREGOING, CLIENT AGREES THAT Stratus22’S LIABILITY FOR ANY DAMAGES ARISING FROM Stratus22’S PERFORMANCE OF THE SERVICES (INCLUDING THE PORTAL) SHALL BE LIMITED TO THE ACTUAL FEES PAID BY CLIENT FOR THE SERVICES WITHIN THE THREE (3) MONTHS PRECEDING THE ACT OR OMISSION GIVING RISE TO Stratus22’S LIABILITY. Stratus22 SHALL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY FOR ANY PURELY ECONOMIC LOSSES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, USE, INCOME, BUSINESS OPPORTUNITIES OR CUSTOMER GOODWILL, OR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, ANTICIPATORY, INCIDENTAL, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THE SERVICES OR THE PORTAL, THESE TERMS AND CONDITIONS, ORDER FORM, AND/OR THE AGREEMENT (WHETHER SUCH CLAIM IS BASED ON CONTRACT, DEFECT, WARRANTY OR TORT, EVEN IF Stratus22 HAS BEEN ADVISED OF THE LIKELIHOOD OR POSSIBILITY OF SAME.
13. FORCE MAJEURE. Except for the payment of fees by Client, if the performance of any part of the Services under these Terms and Conditions and/or Order Form by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, acts of terrorism, or any other causes beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered, or delayed by such causes.
14. GOVERNING LAW. The laws of the State of Georgia, excluding its conflicts-of-law rules, govern these Terms and Conditions and your use of the Services. However, notwithstanding this Section, the prior arbitration agreement set forth herein shall be governed by the Federal Arbitration Act.
15. ARBITRATION. Except for disputes regarding non-payment by Client of amounts due hereunder, the parties agree that any claim, dispute, or controversy (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS), arising out of or relating to this Agreement, ITS INTERPRETATION, OR A BREACH, OR THE VALIDITY THEREOF, OR THE RELATIONSHIP THAT RESULTS FROM THE AGREEMENT (INCLUDING, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, RELATIONSHIPS WITH THIRD PARTIES WHO ARE NOT SIGNATORIES TO THE AGREEMENT) WILL BE RESOLVED EXCLUSIVELY AND FINALLY in Atlanta, Georgia, pursuant to the Commercial Arbitration Rules of the American Arbitration Association, and judgment on any arbitration award may be entered in a court of competent jurisdiction. IN THE EVENT OF ANY INCONSISTENCY OR CONFLICT BETWEEN THE AAA COMMERCIAL ARBITRATION RULES AND THE AGREEMENT, THE AGREEMENT WILL CONTROL ALL PARTIES TO ANY SUCH ARBITRATION MUST BE INDIVIDUALLY NAMED. THE ARBITRATION WILL BE LIMITED SOLELY TO THE DISPUTE OR CONTROVERSY BETWEEN CLIENT AND Stratus22. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER CLIENTS OF Stratus22 OR OTHER PERSONS SIMILARLY SITUATED. CUSTOMER HEREBY AGREES NOT TO PARTICIPATE AS A CLASS MEMBER IN ANY SUCH PROCEEDING. The arbitrator of any dispute or claim arising out of or relating to this Agreement shall not have the power to award injunctive relief. No claim subject to arbitration under this Agreement may be combined with a claim subject to resolution before a court of law. The arbitrability of disputes shall be determined by the arbitrator.
16. JURISDICTION/VENUE. Except for arbitration, the parties agree that the Superior Court or the State Court of Fulton County, Georgia shall be the sole and exclusive jurisdiction and venue for all actions to enforce an arbitrator’s decision, award, order or judgment or any claim arising out of or relating to the Services which is beyond the scope of the arbitration provisions set forth in Section 15. The parties hereby waive any objections or defenses to jurisdiction or venue in any such proceeding before such courts. If any legal action or other proceeding is brought for the enforcement of these Terms and Conditions, including, without limitation, enforcement by Stratus22 of the payment terms set forth herein, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
17. WAIVER OF JURY TRIAL – CLIENT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY CONTROLLING LAW, ALL RIGHT TO TRIAL BY JURY OF ANY DISPUTE, CLAIM, OR CAUSE OF ACTION BASED UPON, ARISING OUT OF, RELATING TO, OR CONCERNING THE AGREEMENT, THE TRANSACTION(S) CONTEMPLATED HEREIN, OR ANY RELATIONSHIP BETWEEN THE PARTIES, IN ANY ACTION, PROCEEDING OR LITIGATION OF ANY TYPE BROUGHT AGAINST Stratus22, WHETHER WITH RESPECT TO CONTRACT, TORT, STATUTORY, REGULATORY OR OTHER TYPES OF RIGHTS OR CLAIMS. CUSTOMER HERETO AGREES, THEREFORE, THAT SHOULD IT BRING AGAINST Stratus22 ANY CLAIM OR CAUSE OF ACTION NOT SUBJECT TO SECTION TITLED DISPUTE RESOLUTION, HEREIN, SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A JUDGE WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, CUSTOMER FURTHER AGREES THAT TO THE FULLEST EXTENT PERMITTED BY CONTROLLING LAW, ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS HEREBY WAIVED AS TO ANY ACTION, CLAIM, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE AGREEMENT.
18. STATUTE OF LIMITATIONS WAIVER – EXCEPT AS SPECIFICALLY PROHIBITED BY LAW, CLIENT AGREES THAT ANY DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF, RELATING TO, OR CONCERNING THE AGREEMENT OR THE PARTIES’ RELATIONSHIP MUST BE COMMENCED UNDER THE SECTION TITLED “ARBITRATION” NO MORE THAN SIX (6) MONTHS AFTER THE DATE OF THE ALLEGED DISPUTE, CLAIM, OR CONTROVERSY. CLIENT HEREBY WAIVES ANY STATUTE OF LIMITATION TO THE CONTRARY.
20. Operators of mobile devices should follow safe driving practices, walking patterns, and traffic laws and regulations. Whenever using a mobile application(s) of Stratus22, you acknowledge your responsibility to observe and abide by the laws, rules, and regulations that govern the use of mobile devices and their applications.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account information current. We assume no liability or responsibility for your failure to receive an email notification, if such failure results from an inaccurate email address being listed under your account.