TERMS AND CONDITIONS

The following terms and conditions are made part of sticky.io, Inc.’s Referral Partner Agreement (the “Agreement”):


1. Definitions.

Capitalized terms used but not defined in these Standard Terms and Conditions shall have the meaning provided in the Agreement. 

2. Independent Contractors. 

The relationship of Company and Vendor established by the Agreement is that of independent contractors, and nothing contained in the Agreement shall create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the Parties.  Except as otherwise provided in the Agreement, neither Party shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.

3. Limitation of Liability.

a. IN NO EVENT SHALL EITHER PARTY OR ANY OF THEIR RESPECTIVE AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, OR COMPUTER FAILURE, DELAY OR MALFUNCTION), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

b. COMPANY’S TOTAL AGGREGATE LIABILITY TO VENDOR OR ANY OTHER PERSON OR ENTITY FOR ANY AND ALL CLAIMS AND DAMAGES ARISING FROM OR OUT OF THE AGREEMENT (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL IN NO EVENT EXCEED THE FEES PAID BY VENDOR TO COMPANY UNDER THE AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO VENDOR’S FIRST CLAIM.

4 Governing Law; Jurisdiction. 

The validity, interpretation, construction, and performance of the Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of California, without giving effect to its principles of choice of law or conflicts of law thereunder.    Subject  to Section  5 of these  Standard Terms  and Conditions,  any  action  or  proceeding  not  subject  to  arbitration  pursuant  to  Section  5  seeking  to  enforce  any provision  of, or based on any right arising  out of or related  to the Agreement  must be exclusively  brought  against either of the parties in the courts of the State of California  located  in the city of San Francisco  or, if it has or can acquire jurisdiction, in the United States District Court located in the city of San Francisco, California, and each of the Parties  consents  to the jurisdiction  of such  courts  (and of the appropriate  appellate  courts)  in any such  action  or proceeding  and waives any objection  to venue laid therein.  Process in any action or proceeding referred to in the preceding sentence may be served on either Party anywhere in the world.  In the event it shall become necessary for either Party to take action of any type whatsoever to enforce the terms of the Agreement, the prevailing Party shall be entitled to recover all of its attorneys’ fees, costs, and expenses, including all out of pocket expenses, incurred in connection with any such action, including any negotiations, mediation, arbitration, litigation, and appeals. The Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

5. ARBITRATION.  

a. Company believes that arbitration is a faster, more convenient and less expensive way to resolve any disputes or disagreements.  Therefore,  if there is any dispute or disagreement  arising from or related to the Agreement, neither  Party will have the right to pursue a claim in court, or have a jury decide the claim, and Vendor shall not have the right to  bring  or  participate  in  any  class  action  or  similar  proceeding  in  court  or  in  arbitration.  Vendor and Company further agree to binding arbitration as provided below.  The arbitration required under the Agreement involves interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as it may be amended or any successor statute and not by state law.

b. The Parties agree that any complaint, dispute, or disagreement  it has against the other arising under or related to the Agreement shall  be  resolved  exclusively  by  final  and  binding arbitration  (“Arbitration”)  administered  by JAMS  or its successor  (“JAMS”)  and  conducted  in accordance  with  the JAMS Streamlined Arbitration Rules And Procedures in effect at the time the Arbitration is initiated (the “Applicable  Rules”). The Applicable Rules can be found at www.jamsadr.com. If JAMS is no longer in existence, the Arbitration shall be administered by the American Arbitration Association or its successor (the “AAA”) instead, and conducted in accordance with the AAA Commercial Arbitration Rules in effect at that time (which shall be the “Applicable Rules” in such circumstances).  This Section 5 shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
The Parties further agree that:

i. the Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between the Parties (the “Arbitrator”);

ii. the  Arbitrator,  and  not  any  federal,  state  or local  court  or agency,  shall  have  the  exclusive  authority  to resolve  any  dispute  arising  under  or  relating  to  the  validity,  interpretation,  applicability,  enforceability  or formation  of the Agreement and/or  these  arbitration  provisions  in this Section 5,  including  but not limited  to any claim  that all or any part of the Agreement is void or voidable;

iii. the Arbitration shall be held in San  Francisco, California or such other location as Company maintains its corporate headquarters.

iv. the Arbitrator (i) shall apply internal laws of the State of California consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the United States, irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;

v. the Arbitration can resolve only the Parties’ individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;

vi. the Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator's complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”).  Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;

vii. in the event it shall become necessary for either Party to take action of any type whatsoever to enforce the terms of the Agreement, the prevailing Party shall be entitled to recover all of its attorneys’ fees, costs, and expenses, including all out of pocket expenses that are not taxable as costs, incurred in connection with any such action, including any negotiations, mediation, arbitration, litigation, and appeals; and

vii. with the exception of subpart (v) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (v) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Party shall be entitled to arbitrate its dispute, and must instead bring any claims in a court of competent jurisdiction. In such event, (A) both Parties hereby waive to the fullest extent possible the right to trial by jury, and (B) if the jury waiver set forth in this Section 5 is not enforceable, then any dispute, controversy  or claim arising out of or relating to the Agreement or any of the transactions contemplated  herein shall be resolved by judicial reference pursuant to Code of Civil Procedure Section 638 et seq. before a mutually acceptable  referee or, if none is selected, then a referee chosen by the Presiding Judge of the California  Superior  Court for San Francisco  County,  provided  this provision  shall not restrict any party from seeking to enforce any prejudgment remedies.

6. Assignment. 

Vendor may not assign the Agreement without Company’s prior written consent. The Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

7. Waiver.  The waiver by either Party of a breach of or a default under any provision of the Agreement shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of the Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of that or any other right or remedy.

8. Severability. 

If the application of any provision of the Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of the Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

9. Counterparts. 

The Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A signature of a Party to the Agreement sent by facsimile or other electronic transmission will constitute an original and fully effective signature of the party.  The Parties agree that in any legal proceeding between them or in any way relating to the Agreement, each waives the right to raise any defense based on the execution of signatures in counterparts or the delivery of executed counterparts by facsimile or other electronic transmission.

10. Headings. 

The headings contained in the Agreement and in these Standard Terms and Conditions herein are for convenience of reference only and shall not be considered as substantive parts of the Agreement or these Standard Terms and Conditions.

11. Construction of Agreement.  

The Parties mutually acknowledge that they and their attorneys have
participated in the preparation and negotiation of the Agreement.  In cases of uncertainty the Agreement shall be construed without regard to which of the Parties caused the uncertainty to exist.

12. Third Parties. 

Nothing in the Agreement, whether express or implied, is intended to: (a) confer any benefits, rights or remedies under or by reason of the Agreement on any Person other than the express Parties to it and their respective permitted successors and assigns; (b) relieve or discharge the obligation or liability of any person not an express party to the Agreement; or (c) give any Person not an express party to the Agreement any right of subrogation or action against any Party to the Agreement.

13. Entire Agreement. 

The provisions of the Agreement, including any Exhibits thereto which are hereby incorporated by reference, constitute the entire agreement between the Parties with respect to the subject matter hereof, and the Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter.  The Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party.