SCALABLE BUSINESS ADVISOR 
MASTER LICENSE AGREEMENT

1. Definitions

“Scalable” means the courses, meetings, and tools provided by us via http//www.scalable.co and/or other designated websites, but excluding any third party websites.

“Scalable Terms of Use” means the terms of use which govern the use of Scalable and are accessible via http://www.Scalable.co/terms-of-use.

“Membership Qualifications”
means the applicable requirements for participation in the Program in which you are participating as set forth on the Program Policies from time to time.

“Net Revenue”
means the Subscription Net Revenue or Renewal/Upgrade Net Revenue as applicable.

“Deal”
means, referral of a potential Member of Scalable who is, in our reasonable determination: (i) a new potential Member and not then or during the prior 60 days, one of our current Member, in our active sales process or one of your affiliates or (ii) an existing Member originally referred by you who renews a Membership, purchases additional Membership tiers or programs, or purchases Memberships for upgrades in the edition of Scalable; in either case which Memberships result from your specific sales 

“Program”
means our partner program as defined by the Program Policies.

“Program Policies”
means the policies and documentation describing the Program, including any policies that may be set forth on website located at http://www.scalable.co/sba-policies/ (the “Program Site”).

 “Membership Net Revenue”
means, with respect to a Membership, the subscription fee actually paid by the Member by reason of such Membership (net of any discounts, taxes payable and subsequent refunds not due to a contract breach by us) when recognized as revenue by us in accordance with generally accepted accounting principles. Net Revenue does not include fees for support, implementation, customization, training, consulting or other professional services, or fees for third-party products or services.

“Renewal/Upgrade Net Revenue”
means, (i) with respect to the renewal of a Membership, the subscription fees actually paid by the Qualified End User by reason of such renewal Membership and (ii) with respect to upgrades in the edition of Scalable, the incremental increase in subscription fees actually paid by the Qualified End User by reason of Memberships for such upgraded additions (in either case net of any discounts, taxes payable and subsequent refunds not due to a contract breach by us), when recognized as revenue by us in accordance with generally accepted accounting principles. Renewal/Upgrade Net Revenue does not include fees for support, implementation, customization, training, consulting or other professional services, or fees for third-party products or services.

“Member”
means, an end user of Scalable pursuant to a Membership.

“Qualified Membership”
means, in our reasonable determination, a Subscription that is fully executed and if not a renewal or upgrade, is closed within six months of the corresponding Deal referral.

“Membership”
means, a paid membership for access to Scalable enrolling one or more end users. 

“We,” “us” or “our”
means Scalable.co, LLC.

“You” or “your”
means the person accepting this Agreement or the company or other legal entity for which you are accepting this Agreement. 

2. Term and Termination


2.1. Term.

This Agreement will apply for as long as you participate in the Business Advisor Program, until terminated pursuant to the terms in this Agreement, but in no event shall this Agreement exceed any applicable Rule Against Perpetuities, and in the event that any Rule Against Perpetuities would apply so as to make this Agreement ineffective or unenforceable, this Agreement shall terminate at the maximum allowable period in such a way so as not to violate any such rule.


2.2 Termination Without Cause.
 
Both you and we may terminate this Agreement on sixty (60) days’ written notice to the other party. In the event that Scalable terminates this Agreement without cause, a pro-rata refund will be issued. In the event that the Business Advisor terminates this Agreement without cause, no refund, partial or in full, will be issued.


2.3 Termination of Inactive Business Advisors.

If you are an Inactive Business Advisor, then we may terminate this Agreement at any time upon thirty (30) days’ written notice to you. If, within twenty-one (21) days from the date of such notice, you present us with a plan that will result in you becoming an Active Business Advisor, we will consider this plan. We may then choose in our sole discretion to notify you in writing that we withdraw our notice of termination, in which case the Agreement will not terminate. If we do not send such written notice of withdrawal of our notice of termination, then termination will proceed effective as of the termination date specified in the original thirty (30) days’ notice of termination.


2.4 Termination for Cause. 

We may terminate this Agreement and/or suspend your license and access to the Business Advisor Portal: (i) upon thirty (30) days’ written notice to you of a material breach of this Agreement, including the Branding Guidelines / Code of Conduct, if such breach is capable of being cured and remains uncured at the expiration of such period, (ii) upon fifteen (15) days’ written notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition under any bankruptcy or insolvency law or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you violate the Customer Terms of Service or applicable local, state, federal, or foreign laws or regulations, (v) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, (vi) immediately, if you are in material breach of this Agreement, including the Branding Guidelines or Code of Conduct, and such breach is incapable of being cured, or (vi) immediately, if we determine, in our sole and absolute discretion, that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. In the event that this Agreement is terminated for cause, no refund, partial or in full, will be issue, 


2.5 Effects of Expiration/Termination.
 
Upon termination or expiration of this Agreement, you must immediately discontinue all use of our trademarks, including but not limited to immediately removing all Scalable and/or Business Advisor branding or references from your website(s), online content, social media accounts.. You further must promptly send to Scalable any and all physical property in your possession (including business cards, brochures, promotional items, etc.) bearing or containing any Scalable trademarks, logos or other intellectual property. No license, whether implied, express, or otherwise, to continue using Scalable’s intellectual property shall continue after the termination or expiration of this Agreement


3. Program Overview



3.1 Enrollment
Your enrollment in the Program requires your completion and acceptance of this Agreement and satisfaction of the Membership Qualifications. Upon satisfaction of the Membership Qualifications and our acceptance of this Agreement, you will be enrolled in the Program. Each of your wholly- and majority-owned subsidiaries that desires to be included as a member in the Program must complete its own Partner Enrollment Form for membership and separately agree to this Agreement. 


3.2 Membership Qualifications and Program Benefits

By enrolling in the Program you certify that you meet the Membership Qualifications for the Program including ensuring that each of your representatives that refer Deals to Scalable complete the “Scalable Business Advisor Certification.” You further represent that you will continue to meet and comply with such requirements for the duration of your enrollment in the Program. You agree to notify us in writing in the event you no longer meet the Membership Qualifications. Notwithstanding anything to the contrary in this Agreement, if at any time we determine that you do not meet the Membership Qualifications, we may, in our sole discretion, modify or terminate your membership in the Program, effective immediately upon our written notice to you. The Program Policies are subject to change in our sole discretion. You are responsible for reviewing the Program Policies regularly. 


3.3 Fees

 Your continued membership in the Program is at all times subject to your timely payment of any applicable fees for your Program benefits. Fees will be as stated in the Program Policies. Fees are subject to change at our discretion. Payment obligations are non-cancelable and fees paid are non-refundable. 


3.4 Opt-in to Marketing

Your participation in the Program will serve as an opt-in to receive the marketing communications that we may deem relevant to our partners. You will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any persons or Partner Users who are signed up to the Program on your behalf. You may elect to opt-out from receiving our marketing materials by contacting us directly. 


4. Referral Payment

Following your enrollment into the Program, we will pay you a referral and fulfillment fee for each Deal you submit to us that results in a Membership.


4.1 Referral Fee Structure

The fee schedule detailing the fee structure for each Deal that the SBA originates or refers is spelled out in the Appendix A of the Program Policies. 


4.2 Payments


We will bill the Member directly unless you request that we bill you directly. If we bill the Member directly, we will be solely responsible for collecting payment. If we bill you directly, you will be responsible for paying all membership fees and ensuring that the Member accept the Scalable Terms of Use. We will pay referral fees owed to you for any Membership monthly in arrears as further set forth in the Program Policies. We will provide a summary report with each payment showing how the payment was calculated. If either party determines an error was made in the calculation of payment, each party agrees to work diligently and in good faith to resolve the error and to ensure proper payment is made. Any payments made to you under this Agreement will be made by check mailed to your address as noted in your Partner Enrollment Form or by bank transfer to your bank account. 


4.3 Deal Submission

You must complete and submit lead registrations via your unique affiliate link, and as provided in the Program Policies for each sales Deal. For Deals, that are submitted as a Referral Deal, we will then qualify the Deal and notify you via email of the approval or rejection of such Deal. If the parties exchange information regarding Deals, both parties agree to use the information therein solely for purposes related to this Agreement. In submitting personal data regarding an Deal, you are responsible for complying with all applicable laws governing your collection, storage, processing, use and transfer of such information. You authorize us to process such data as reasonably required to exercise our rights and perform our obligations under this Agreement. We will not process or use such data in a manner different from that necessary to carry out our obligations under this Agreement, provided however, that we may be required to provide personally identifiable information to third parties to comply with legally mandated reporting, disclosure, or other legal process requirements. As the data provider, you warrant that you have provided all appropriate notices to the data subjects and have obtained all appropriate consents to transfer the data to us and allow its processing according to the terms of this Agreement. 


4.4. Exclusions from Payment Obligations

Notwithstanding any other provisions of this Agreement, you will not be entitled to referral fees or any other compensation on any Subscription if: (a) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (b) the applicable Qualified End User prohibits the inclusion of such compensation in the price of the contract or excludes such compensation from its payments to us; (c) the end user has paid or will pay such commissions, referral fees, or other compensation directly to you. 


5. Resale


5.1 Appointment
Subject to the limitations set forth below, if your Partner Enrollment Form specifies that you may resell Scalable Programs we hereby grant and you hereby accept, a non-transferable, non-exclusive right to (a) demonstrate Scalable Programs to prospects; (b) promote Scalable Programs to prospects; and (c) sublicense the Scalable Programs to prospects that accept the Scalable Terms of Use. 


5.2 Orders

You shall place orders for Scalable Program with us specifying the type of Scalable Program ordered and the name and address of the Deal. We shall confirm our acceptance of an order within fifteen (15) days after initial receipt of such order. All orders not accepted within such fifteen (15) day period shall be deemed to be rejected. No order shall be binding unless acknowledged and accepted in writing or by e-mail by us. The terms and conditions set forth herein shall prevail over any different or additional terms set forth in your order. 


5.3 Prices, Discounts and Payment Terms

The price of Scalable Programs shall be subject to change by us at any time, provided, however, that no such price change shall affect orders accepted by us within 10 days after such price change. The prices charged by you to members for Scalable Programs shall be at your sole discretion. The Appendix sets forth (a) the revenue sharing applicable to you with respect to your resale of Scalable Programs and (b) the commission payable to you by us (in lieu of the revenue sharing referenced above in cases where our material involvement is necessary to obtain an order or the order is placed with us). Unless otherwise agreed by the parties in writing, payment shall be made by you separately for each order accepted by us. All payments by you to us shall be made by via our online checkout system to us within 15 days from the order date. After 15 days, interest shall accrue on monies outstanding from the due date to the date of payments at the lesser of the rate of one and one-half percent (1½%) per month or the maximum legal rate allowed. We may offset any payment owed to you against payments you owe to us. 


6. License 


6.1 Our Licenses to You
As a member of the Program you are entitled to the following licenses and/or access and use rights as set forth below.


6.2 Scalable Memberships
 
Upon our providing you with log-in credentials you will be granted a non-exclusive, non-transferable limited right to access and use Scalable Programs for limited partner purposes described in this Agreement, including the Program Policies and the Terms of Service for Scalable. Unless otherwise stated in the Program Policies, Memberships shall be used solely for: (a) demonstration of Scalable to potential end users solely in connection with your Program membership, or (b) training on Scalable Programs for your employees. For clarity, you may be, or become entitled to, receive access to Scalable Programs for other uses under a separate agreement with us, however, this Agreement shall govern your access to Scalable Programs to the extent such Memberships are provided in relation to your membership in the Program.


6.3 Marketing Services

We grant you a non-exclusive, nontransferable, limited license to use the marketing programs, materials and tools, we provide to you solely for the purpose of creating, executing, and monitoring marketing campaigns for promotion of our products and services provided that at all times you provide attribution to us and receive our prior approval of such campaigns. Your use of such marketing programs, materials and tools is subject to this Agreement and any logo and advertising use guidelines set forth in the Program Policies. You agree to be responsible for any misuse of the Marketing Services by you or any third party using the Marketing Services on your behalf and you agree to use the Marketing Services at your own risk. 

You shall cooperate with us to allow for review of your use of the Marketing Services and compliance with our quality and attribution standards. If we, in our sole discretion, determine that your use of the Marketing Services is not in compliance with this Agreement, you shall promptly modify or discontinue your use as directed by us. In the event that Marketing Services include payments to you, then you shall maintain adequate books and records regarding the basis for such payments and shall provide us copies of such records upon request.


6.4 Your License to Us

You grant us a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into Scalable any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the operation of Scalable.

You grant to us a nonexclusive, non-transferable, royalty-free right throughout the world and in perpetuity to use and display your name and likeness, trademarks, service marks and logos (collectively, “Scalable Business Advisor Marks”) in connection with the Business Advisor Program and this Agreement.


6.5 Trademark Cross License
Subject to the Program Policies, each party hereby grants to the other a worldwide, nonexclusive, nontransferable, non-sublicensable, royalty-free license to use, in your case, “Scalable,” and the associated logos and, in our case, your company name solely in connection with each party’s rights, duties and obligations under this Agreement. 

Any use of marks shall be in accordance with the granting party’s reasonable trademark usage policies, with proper markings and legends, and subject to granting party’s prior written approval. Neither party shall make any express or implied statement or suggestion, or use the other party’s marks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the other party or its business, products or services. Each party shall cease, or adjust the manner of, its use of any mark of the other party at the request of the other party in its sole discretion. The granting party may withdraw any approval of any use of its marks at any time in its sole discretion


6.6. The Scalable Programs
 are protected by intellectual property laws. The Scalable Programs belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Scalable intellectual property and Programs. You agree not to copy, rent, lease, sell, encumber, distribute, license, sublicense, denigrate, or create or allow or cause to be created, derivative works based on the Scalable content, or the Scalable Products in whole or in part, by any means, except as expressly authorized in advance, in writing, by us. The name Scalable, the rainbow S design, the Scalable logos, and all other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.


7. Confidentiality



7.1 Definition of Confidential Information


As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information shall include, without limitation, non-public aspects of our and third party applications, Scalable, and end user data to which you have access through our system. Your Confidential Information includes, but is not limited to your applications, business and marketing plans, technology and technical information, products designs, and business processes. Confidential Information of each party shall include the terms and conditions of this Agreement, discussions regarding the partner relationship. However, Confidential Information (except for our end user data) shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without breach of an obligations owed to the Disclosing Party. 


7.2 Protection of Confidential Information

Except as otherwise permitted in writing by the Disclosing Party (a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. 


7.3 Compelled Disclosure 

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.


8. Representations and Warranties. 


You represent and warrant that: (i) you have sufficient rights and permissions, including if applicable under the California Consumer Privacy Act, the General Data Protection Regulation, or other federal, state or local privacy laws, to provide any prospect data you send to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Scalable Business Advisor Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Scalable Business Advisor Marks (as defined below), as set forth in this Agreement.


9. Limitation of Liability


NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE APPLICABLE FEES YOU PAID US UNDER THIS AGREEMENT FOR THE YEAR DURING WHICH A CLAIM IS MADE. NOTWITHSTANDING THE FOREGOING, THE ABOVE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO YOUR INDEMNIFICATION OBLIGATIONS UNDER SECTION HEREUNDER.


10. Indemnification

You will indemnify, defend and hold harmless, at your expense, Scalable and our owners, officers, directors, advisors, employees, agents, representatives, service providers, licensors, contractors, and/or affiliates (collectively, “Indemnified Parties”) against any claim, suit, action, or proceeding (each, an “Action”) brought by a third party to the extent that such Action is based upon or arises out of (a) your participation in the Scalable Business Advisor Program, (b) our use of any prospect data you provided us, (c) your noncompliance with or breach of this Agreement, including any representation, warranty or obligation, (d) your use of Optional Scalable Business Advisor Programs, or (e) our use of the Scalable Business Advisor Marks. We will notify you in writing within thirty (30) days of our becoming aware of any such Action.

Upon your acceptance of this tender for defense and indemnification you shall have sole control of the defense and/or settlement of such an Action. We will provide you (at your expense) with any information and assistance reasonably requested by you to handle the defense and/or settlement of the Action. Notwithstanding the foregoing,you shall not accept any settlement that (i) imposes an obligation on any of the Indemnified Parties; (ii) requires any of the Indemnified Parties to make an admission; or (iii) imposes liability on any of the Indemnified Parties which is not covered by your indemnification obligations or which places restrictions on any of the Indemnified Parties, without our prior written consent.


11. MISCELLANEOUS



11.1 Disclaimer of Warranties

WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE Scalable Products, Scalable CONTENT, THE Scalable Business Advisor PROGRAM, THE OPTIONAL Scalable Business Advisor PROGRAMS OR Other 3rd Party Tools, FOR ANY PURPOSE, INCLUDING, WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES ABOUT INCOME OR THE ABILITY OF THE PROGRAM TO GENERATE INCOME OR PROFITS. TO THE EXTENT PERMITTED BY LAW, THE Scalable PRODUCTS, OPTIONAL Scalable Business Advisor PROGRAMS, AND 3rd Party Tool accesses ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE Scalable PRODUCTS, THE Scalable Business Advisor PROGRAM, THE OPTIONAL Scalable Business Advisor PROGRAMS AND 3rd Party Tools, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.


11.2 No Indirect Damages

TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOST BUSINESS OPPORTUNITIES.


11.3 Non-Solicitation

You agree during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement, not to directly or indirectly solicit for employment any of our employees, suppliers, or contractors. Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.


11.4 Amendment; No Waiver

We may update and change any part or all of this Agreement at any time without notice. You are responsible for checking the current Agreement on our website at (http://www.scalable.co/sba-agreement). The updated Agreement will become effective and binding on the next business day after it is posted/distributed. If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after the posting of the modification. If you give us this notice, this Agreement will terminate sixty (60) days after we receive this notice and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term (and thereafter, for provisions which survive the termination or expiration). No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.


11.5 Applicable Law 

This Agreement shall be governed by the laws of the State of Texas, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Austin, Texas.


11.6 Dispute Resolution

In the event of any dispute or controversy arising out of or relating to this Agreement, with the exception of misuse of our intellectual property or non-payment of fees, the parties agree that they shall first attempt to resolve their dispute as set forth below. The parties shall, without delay, continue to perform their respective obligations under this Agreement which are not affected by the dispute. The invoking party shall give to the other party written notice of its request to resolve the dispute, including a description of the issues subject to the dispute and a proposed resolution thereof. Designated representatives of both parties shall attempt to resolve the dispute within thirty (30) days after such notice. If those designated representatives cannot resolve the dispute, the parties shall meet on a mutually agreeable date within a further 30 days and at a mutually agreeable location in Austin, Texas, and describe the dispute and their respective proposals for resolution to responsible executives of the disputing parties with authority to settle the controversy, who shall act in good faith to resolve the dispute. If the dispute is not resolved during such meeting, the parties may then continue negotiations, proceed to pursue their rights under the “Term and Termination” section of this Agreement and/or to seek arbitration The one-year limitation on bringing actions set forth in subsection 11.8 below  shall be tolled during the period between the notice of request to resolve the dispute and the conclusion of the in-person meeting.

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, which is not resolved by the above procedures shall be determined by arbitration in Austin, Texas before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures if no disputed claim or counterclaim exceeds $250,000, not including interest or attorneys’ fees. Judgment on the award may be entered in any court having jurisdiction.Notwithstanding the foregoing, nothing in this Agreement shall prevent us from seeking provisional or injunctive remedies from a court of appropriate jurisdiction or from pursuing actions involving the misuse of our intellectual property in a court of appropriate jurisdiction. 


11.7 Force Majeure

Neither party will be responsible for failure or delay of performance if caused by any of the following, to the extent beyond its reasonable control: an act of war, hostility, or sabotage; acts of God; riot; terrorist act; epidemic; pandemic; quarantine; national strike; natural disaster; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; changes in laws or regulations; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.


11.8 Actions Permitted

Except for actions for nonpayment or breach of a party’s proprietary or intellectual property rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.


11.9 Relationship of the Parties

 Both you and we agree that no joint venture, Business Advisorship, employment, or agency relationship exists between you and us as a result of this Agreement.


11.10 Compliance with Applicable Laws


You shall comply, and shall ensure that any third parties performing activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws, privacy law, intellectual property laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Scalable Programs. You will comply with the sanctions programs by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury, or any similar or successor agency. You will not directly or indirectly export, re-export, or transfer the Scalable Programs to prohibited countries or individuals or permit use of the Scalable Products by prohibited countries or individuals.


12. Severability
 If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be severed and the remainder of this Agreement will continue in effect.


13. Notices

Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party). Notices shall be sent via domestic registered or certified mail, with postage and charges prepaid, or via a recognized next-day courier service (including Federal Express or UPS), except that notices with respect to changed or updated terms of this Agreement shall be delivered as provided above.  We may also give general electronic notices to you via the Scalable Business Advisor Portal and may give electronic notices specific to you by email to your email address(es) on record in our account information for you or through the notifications center in the Scalable Business Advisor Portal. Where written notice to you is not required by this Agreement, we may also give notice to you by telephone call to the telephone number(s) on record in our account information for you. In the case of written notice, notice shall be deemed delivered five (5) business days after the date it is sent by domestic registered or certified mail, on the first business day following the date of dispatch if delivered by courier, and on the date of dispatch if sent electronically. Mailed or delivered notices shall be addressed as follows:
To The Scalable Company, LLC: Scalable, 4330 Gaines Ranch Loop, Suite 120, Austin, TX 78735, U.S.A. Attention: General Counsel To you: your address as provided in our Business Advisor account information for you.


14. Entire Agreement. 

This Agreement is the entire agreement between us for the Scalable Business Advisor Program and supersedes all other proposals and agreements (including all prior versions of the Scalable Business Advisor Program Agreement, if any), whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Scalable Programs or dependent on any oral or written public comments made by us regarding future functionality or features of the Scalable Programs. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.


15. Assignment

You may not assign, delegate or transfer this Agreement or any part of it, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.


16. No Third Party Beneficiaries
 
Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.


17. Code of Conduct and Program Guidelines

We may change the Code of Conduct and Program Guidelines from time to time by updating our website. Your participation in the Scalable Business Advisor Program is subject to the Code of Conduct and Guidelines, which are incorporated herein by reference.


18. Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.


19. Opt-Out and Unsubscribing

You will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests, including without limitation such requests from us related to any shared leads. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.


20. No Licenses
 
We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Scalable Products, our trademarks, or any other property or right of ours.


21. Sales by Scalable 

This Agreement shall in no way limit our right to sell the Scalable Products, directly or indirectly, to any current or prospective customers.


22. Authority

Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.


23. Survival

The following sections shall survive the expiration or termination of this Agreement: “Termination of License and Obligations”; “Effects of Expiration/Termination”; and subsections 3-7, 10, 12, 22 and 25 of “General.”


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