Legal Information

TERMS OF SERVICE AGREEMENT

UNITED STATES OF AMERICA

In these Terms of Service (hereafter “Agreement” or “Terms”), “we”, “us”, “our”, “AGENCY”, or “Leeward” will refer collectively to Leeward Digital LLC, a United States of America, Nevada corporation with its principal place of business at 1452 W. Horizon Ridge Pkwy, Suite 295, Henderson, NV, 89012, USA and its affiliates. The terms “you”, “your”, “Customer”, and “CLIENT” will refer to you. To be eligible to register for a customer account, and in order to use the Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. The (“Effective Date”) of these terms is the date you sign up for Services.

If you are registering for a customer account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Leeward that you have the authority to bind that organization to these Terms (and, in which case, the terms “you”, “your”, “Customer”, or “CLIENT” will refer to that organization). The exception to this is if that organization has a separate written agreement with Leeward covering the use of the Services, in which case that agreement will govern such use.

PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND LEEWARD. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” OR “GET STARTED” BUTTON AND YOU SHOULD NOT USE THE SERVICES.

When we refer to the “Services” in these Terms, we mean to include all products and services that Leeward offers, and that you order under an Order Form or by using the Leeward customer account. This also includes our services provided to you on a trial basis or otherwise free of charge. Services may include products that provide both (a) the platform services, including access to online resources, resumes, candidate data, Documentation, and contracts and (b) where applicable, connectivity services, that provide underlying access to timekeeping systems, telecommunication providers’ networks via the internet.

When we refer to the “Documentation” we mean the specific resumes and human resources information made available via our secure online website. There is a subset of the Documentation that we have broken down separately and consists of our Acceptable Use Policy, terms that are specific to certain products or services (namely what we may refer to as “product specific terms” and our Security Overview.

When we refer to the “Customer Application” we mean any software application or service that Customer makes available through or creates, using developer tools, human resources, staff, or resources provided by Leeward or that interfaces with the Services.

IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABLITY TO YOU. For more specific details, go to Section 14.

IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY A DISPUTE RESOLUTION PROCESS WHICH MAY LEAD TO BINDING ARBITRATION. For more details, go to Section 18.

If you have any questions, you can reach Leeward at www.leewardx.com/contact-us.jsp.

Contact us if you are a U.S. federal government user or otherwise accessing or using the Services in a U.S. federal government capacity.

1. Changes to These Terms

These terms might change. But we’ll send you an email and let you know before we make any significant changes that impact you or your use of our Services. If you keep using our Services after you receive notice from us that the terms have changed, then that means you have accepted those changes and they will be binding on you.

Prior to notice of changes: Leeward may update these Terms of Service from time to time by providing you with prior written notice of material updates at least (30) days in advance of the effective date. Notice will be given in your account portal or via an email to the email address owner of your account. This notice will highlight the intended updates. Except as otherwise specified by Leeward, updates will be effective upon the effective date indicated at the top of these Terms of Service. The updated version of these Terms will supersede all prior versions.

Your acceptance: Following such notice, your continued access or use of the Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the Services.

Exceptions: Leeward may not be able to provide at least thirty (30) days prior written notice of updates to these Terms that result from changes in the law or requirements from telecommunications providers.

2. Your Leeward Account(s)

If you want to use our Services, you need to create a customer account. To create an account, you need to give us some information about yourself. The information you provide must be true and kept up to date.

You are responsible for anything that happens under each of your accounts, including anything the users of your application(s) do while using your application(s), and that means even if someone fraudulently uses your account, you are responsible for those fees.

To use the Services, you will be asked to create a customer account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you’re a human by providing a telephone number to which we’ll send you a verification code to enter into a form.

Until you register for an account, your access to the Services will be limited to what is available to the general public. When registering for an account, you must provide true, accurate, current, and complete information about yourself as requested during that account creation process. You may also create sub-accounts within each account. You must keep that information true, accurate, current and complete after you create each account.

You are solely responsible for all use (whether or not authorized) of the Services under your customer account(s) and any subaccount(s), including the quality and integrity of your Customer Data and each Customer Application (as defined below). You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses any Customer Application (“End Users”). You agree to take all responsible precautions to prevent unauthorized access to or use of the Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your customer account(s). You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software, and other equipment as may be necessary for you and each End User to connect to, access, and use the Services.

3. Access and Use of the Services

We want to make our Services available for you to use 24/7, but things happen that occasionally make our Services unavailable. We offer service credits if our Services don’t meet our Leeward service level agreement (SLA). Please see our Leeward SLA.

3.1 Provision of the Services.

We will make the Services available to you in accordance with these Terms, the Documentation and any applicable Order Forms. The Services will comply with this service level agreement (“SLA”), which may be updated from time to time. Service will also comply with the Leeward Security Overview. We will provide the Services in accordance with laws applicable to Leeward’s provision of the Services to its customers generally (i.e. without regard for your particular use of the Services), and subject to your use of the Services in accordance with these Terms, the Documentation, and any applicable Order Form.

3.2 Use of the Services.

You may use the Services, on a non-exclusive basis, solely to: (a) use the Documentation and the Leeward candidate database as needed to locate resources for the development of your Application; (b) use and make the Services available to End Users in connection with the use of each Customer Application in accordance with the Documentation and our Acceptable Use Policy; (c) use the Services solely in connection with and as necessary for your activities pursuant to these Terms; and (d) allow your affiliates to use the Services (subject to Section 8 (Affiliates)) pursuant to this Section 3.

4. Customer Data

Our Data Protection Addendum and Privacy Policy include important terms about the use and disclosure of Customer Data, which is your Confidential Information. The Data Protection Addendum has now been added into these Terms by our referring to it, and it now applies to all of our customers. Please read our Privacy Policy to understand what we do with your data. If you don’t want your data used that way, then, stop using our Services immediately.

We might have to use or disclose your data for one or more of the reasons below:

• If necessary, to provide you with our Services;
• To address technical issues, provide support or maintain our Services;
• If we need to protect Leeward, other customers, or the public;
• If there is an emergency; or
• If the law requires.

Email and SMS are insecure by their nature, so please keep that in mind when using the Services. This is simply a fact beyond our control, and therefore cannot be held responsible.

If we make reference to ‘law’ or ‘laws’ in these Terms, we mean laws in the traditional sense, namely statues, ordinances, and regulations.

4.1 Use of Customer Data

“Customer Data” consists of data and other information made available to use by or for you through the use of the Services under these Terms.

Data Privacy. The terms of the Data Protection Addendum made part hereof (“Data Protection Addendum”) shall apply when personal data is being processed pursuant to this Agreement. Additionally, personal data may be disclosed in accordance with the Privacy Policy. You acknowledge that you have read our “Privacy Policy” and understand that it sets forth how we will collect, store, use and disclose your Customer Data including personal data. If you do not agree with our Privacy Policy, then you must stop using the Services immediately.

You instruct us to use and disclose Customer Data as necessary to (a) provide the Services consistent with Leeward’s then-current Data Protection Addendum, Privacy Policy, Section 11.4, and this Section 4, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Services, and (b) respond to any technical problems or your queries and ensure the proper working of the Services. You acknowledge, that email and SMS are an insecure medium that is generally not encrypted in transit and security of information transmitted through the Internet can never be guaranteed and, accordingly, we are not responsible for any interception or interruption of any communications through the internet or for changes to or loss of Customer Data in connection with the Services.

5. Customer Responsibilities, Restrictions and Requirements

Some “dos and don’ts” to keep in mind when using the Services:

• Don’t transfer our Services, resell them, etc., except as allowed under Section 3.2(b).
• Don’t use our services to break the laws, regulations, rules, etc., to violate these terms, to violate our Acceptable Use Policy, or to violate someone else’s rights;
• Do make sure that Leeward is allowed to use your data as needed to provide you our services; and
• Don’t reverse engineer, etc. any software we provide.
• Do not use our Services to improve or train similar products and services;
• Do not create multiple accounts as a way of getting around paying for the services;
• Comply with the law.

Refer to our Data Protection Addendum for information about return and deletion of Customer Data.

We are excited to see what you build with the Services. However; you should know you and your End Users have a number of responsibilities you must carry out, and there are some restrictions on what you can do with them and requirements that you must follow if you use the Services.

5.1 Your Responsibilities

You will: (a) be solely responsible for all use (whether or not authorized) of the Services and Documentation under your account, including for the quality and integrity of Customer Data and each Customer Application; (b) use Services only in accordance with this Agreement, the Acceptable Use Policy, Documentation, Order Forms or other applicable terms relating to the use of the Services, and applicable laws; (c) be solely responsible for all acts, omissions and activities of your End Users, including their compliance with these Terms, Documentation, the Acceptable Use Policy, and any Order Forms or other terms of sales of the Services; (d) do your best to prevent unauthorized access to or use of the Services and notify Leeward promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (f) comply with the representations and warranties you make in Section 12 (Representations and Warranties) below.

5.2 Service Usage Restrictions

With regard to the Services, you agree that: (a) except to make the Services available to your End Users in connection with the use of each Customer Application as permitted herein, you will not transfer, resell, lease, license, or otherwise make available the Services to third parties or offer them on a standalone basis; (b) you will ensure that the Services are used in accordance with all applicable law and third party rights, as well as these Terms and our Acceptable Use Policy, as amended from time to time; (c) you will ensure that we are entitled to use your Customer Data, as needed to provide the Services; (d) you will not use the Services in any manner that violates any applicable law; (e) you will not use the Services to create, train, or improve (directly or indirectly) a substantially similar product or service, including any other machine translation engine; (f) you will not create multiple Customer Applications or Service accounts to simulate or act as a single Customer Application or Service account (respectively) or otherwise access the Service in a manner intended to avoid incurring fees; (g) except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Services.

We can suspend our services for several reasons, in addition to your failure to pay your fees when they are due, if: 1. You violate our Acceptable Use Policy; 2. You send fraudulent traffic, 3. Your use negatively impact the operation of our services; 4. Legal conditions make it impractical for our services to operate; or 5. You file for bankruptcy protection or become insolvent.

5.3 Suspension of Services

In addition to suspension of the Service for non-payment of fees as described in Section 10.3 (Suspension for Non-Payment), we may also suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) any provision of these Terms, or our Acceptable Use Policy; (b) there is reason to believe the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; c() we determine, in our sole discretion, that providing the Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable law, upon your liquidation, commencement or dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceedings, or (e) there is any use of the Services by Customer or End Users that in Leeward’s judgement threatens the security, integrity or availability of the Services.

However, Leeward will use commercially reasonable efforts under the circumstances to (f) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (g) where practicable limit the suspension based on the circumstances leading to the suspension (e.g., to certain accounts, sub-accounts, or other subset of traffic); and (h) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.

6. Changes to the Services.

We are always looking to innovate and make our services better, so our Documentation and SLA may change over time. We will let you know in advance if any material changes aren’t backwards-compatible.

The features and functions of the Services, including the Leeward Candidate Data feed and our SLA, may change over time. It is your responsibility to ensure that any API calls or requests you make to the Services are compatible with our then-current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes.

7. Beta Offerings.

You have the choice to use our Beta Offerings. But you don’t have to. These are not generally available, and they may have bugs or defects. Also, we do not consider these to be “Services” under these Terms. Thus, we have no responsibility if something related to a Beta Offering goes amiss. You understand that we don’t make any promises that Beta Offerings won’t have problems.

You understand that we will not be liable for any damages from your use of our Beta Offerings.

From time to time, Leeward may make Beta Offerings available to you at no charge. You may choose to try such Beta Offerings or not in your sole discretion. Leeward may discontinue Beta Offerings at any time in our sole discretion and may decide not to make a Beta Offering generally available. For avoidance of doubt, such Beta Offerings are not “Services” under these Terms. “Beta Offerings” means services that are identified as “alpha”, “beta”, “pilot”, “non-GA”, “limited release”, “developer preview”, or any such similarly designated services, products, features, and documentation offered by Leeward.

8. Affiliates

Your affiliates (namely a parent company or a subsidiary that your own company controls) can use our services, and you and your affiliates will both be responsible for everything that your affiliates do when they’re using our Services. That includes any violations of these Terms of Service. If your affiliate wishes to bring a claim against Leeward, then only you may bring that claim on your affiliate’s behalf. Of course, your affiliates can also accept our Terms and order their own Services.

Your affiliates mean any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. The term “control” means more than 50% ownership. Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us, or is under common control with us. Your affiliates are not permitted to purchase Services using the Terms of Service that you accepted. Instead, your affiliates will need to accept the Terms themselves. If your affiliates use the Services under these Terms, then you and those affiliates will be jointly and severally responsible for the acts and omissions of your affiliates, including, but not limited to, their breach of these Terms. Any claim from any of your affiliates that use the Services pursuant to these Terms may only be brought against us by you on your affiliates’ behalf.

9. Product Terms

Review the product terms in the navigation bar. Refer to www.leewardx.com/legal for terms that apply to certain features and functionality of our Services.

10. Fees, Payment Terms, Taxes

You agree to pay the fees generated under your account(s). If you don’t have an order form with discounted fees, then you must pay the rates listed at www.leewardx.com/cost-calculator.jsp.

If you use our Services in violation of these terms and cause us to be fined or penalized, we will automatically bill you for it.

You also agree to pay all applicable taxes. If you are exempt from paying any taxes, please let us know and send appropriate proof.

You will pay us for any Services you use. If you pay by credit card, then you must make sure that you have topped your Leeward account(s) up with sufficient funds to cover your monthly fees. If you do not have sufficient funds in your Leeward account(s) to cover your monthly fees, then we may suspend our services.

All invoices are due upon receipt and paid in advance for 30 days of Services. All fees are owed to Leeward in US dollars, unless we agree to another currency in writing. If you don’t pay on time, then we may send you a late notice. If we don’t receive your payment within ten (10) days after the date on the late notice, then we may charge a late fee and/or suspend our Services. Please pay on time.

If we suspend our Service to you for your non-payment, then you are solely responsible for the cessation of your Services and the dissolution of any human resources you may have previously procured through Leeward. You assume full responsibility for payment with the understanding that resources work on, or have worked on, any of your projects or End User projects may not be available after a suspension of our Services.

If you ever think that we charged you the wrong amount and you want to dispute it, then let us know, in writing, within 60 days of billing date for the charge in question. You have to be reasonable when disputing an invoice. You must be acting in good faith and cooperating with us to resolve the problem.

10.1 Fees

You agree to pay fees in accordance with the rates listed at www.leewardx.com/cost-calculator.jsp and as set forth in any individual statement of work (“SOW”) contract that you execute with Leeward, unless otherwise set forth in an order form or order confirmation between parties (an “Order Form”).

Additionally, we will charge you, and you shall pay, in accordance with Section 10.3, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of your use of the Services.

10.2 Taxes

Unless otherwise stated in an Order Form, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement. “Taxes” mean all applicable federal, state and local taxes, fees, charges, including, without limitation, sales and use taxes, communications service taxes, utility user’s taxes or fees, excise taxes, VAT, GST, other license or business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes. For purposes of this Section 10.2, Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes. If you are exempt from any such Taxes for any reason, we will exempt you from such Taxes on a going-forward basis once you deliver a duly executed and dated valid exemption certificate. Such exemptions should be sent directly to taxforms@leewardx.com. If you are exempt from VAT or GST, then it is your responsibility to provide your VAT or GST registration number to us. If you provide us an exemption certificate or your VAT or GST number after you have paid Taxes, then we will provide, upon your written request, a credit to your customer account for Taxes previously paid for up to a period of three (3) months from the date of receipt of your written request. If for any reason a taxing jurisdiction determines that you are not exempt from any such exempted Taxes and then assesses us such Taxes, you agree promptly to pay to us such Taxes, plus any applicable interest or penalties assessed.

Should you be required by applicable law to withhold any tax from any payment owed to us, then you may provide us with an exemption certificate or similar document to reduce or eliminate any such withholding. Upon receipt of such certificate or document, you shall thereafter reduce or eliminate, as the case may be, such withholding. You shall provide us with documents evidencing your payment of any such withheld Tax to applicable tax authorities.

10.3 Payment Terms

You will make all of the payments due hereunder in accordance with the following applicable payment method:

10.3.1 Credit Card Payment Terms

If you elect to pay via credit card, then you are responsible for either (a) enabling auto-recharge on your customer account(s) or (b) ensuring that your customer account(s) has a sufficient positive balance to cover all fees due. If, for any reason, you have a negative balance on your customer account(s), then we reserve the right to suspend the Services.

10.3.2 Invoicing Payment Terms

If you are not a consumer financing customer and you elect to make payments to Leeward directly, either via credit card, ACH, or PayPal, you will receive an invoice via email as a PDF attachment on a monthly basis. All invoices are due payable upon receipt and shall be marked for payment in advance for the subsequent 30 days of Services. You will make all of the undisputed fees hereunder upon the receipt date of the invoice.

Leeward will generate a unique Invoice for every individual Statement of Work (“SOW”) contract that you have executed. SOW contracts are written on an individual basis and cover the time and materials work for a single hired human resource. If you wish to consolidate the timing of your monthly billing, you may do so by combining the invoice billing date of your open SOW contracts by pressing the “Combine Now” button in the billing and payments management section of your account. Combined SOW invoices that have partial balances will be pro-rated to accommodate a single new billing date. Once combined, SOW billing dates cannot be separated.

Unless you and Leeward agree otherwise in writing, all undisputed fees due pursuant to these Terms are payable in United States dollars. Payment obligations cannot be canceled, and fees paid are non-refundable. If you are overdue on any payment of undisputed fees and fail to pay within five (5) business days of a written notice of your overdue payment, then we may assess, and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less. Following the notice of non-payment, we may also suspend the Services until you pay the undisputed fees due plus any late fees.

If you have not paid invoices within five (5) business days of receipt, Leeward may consider you to have committed a material breach of these Terms and may immediately suspend the Services. Leeward, at its sole discretion, may enact either, neither or both remedies as stated in this paragraph for non-payment of invoices by client.

10.3.3 Suspension for Non-Payment

If we suspend the Services pursuant to this Section 10.3, then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such suspension.

10.4 Fee Disputes

If you are disputing any fees or Taxes, you must act reasonably and in good faith and you must cooperate diligently with Leeward to resolve the dispute. You must notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to these Terms. You must provide that written notice to us within sixty (60) days of the date we bill you for the charge you want to dispute, and we will work together with you to resolve the dispute promptly.

11. Ownership and Confidentiality

What’s ours is ours, and what’s yours is yours. Please let us know what you think about Leeward and our services. If you do choose to send us feedback, then we can use it and we don’t owe you anything for it. If you use our services, then we can use your company’s name, logos, and description of how you use our services on our website, in earnings calls, and in marketing, promotional, or other materials available to the public in accordance with any of your usage guidelines.

11.1 General

As between you and Leeward, we exclusively own and reserve all right, title and interest in and to the Services, Documentation, our Confidential Information and all anonymized or aggregated data resulting from use and operation of the Services (such as but not limited to volumes, frequencies, or bounce rates) and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”). As between you and Leeward, you exclusively own and reserve all right, title and interest in and to each Customer Application, Customer Data and your Confidential Information.

11.2 Suggestions and Contributions

We welcome your Contributions about the Services. But please know that by submitting Contributions you agree that: (a) we are not under any obligation of confidentiality with respect to your Contributions; (b) we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) we own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.

11.3 Use of Marks

You grant Leeward the right to use your name, logo, and a description of your use case to refer to you on Leeward’s website, earnings release and calls, marketing or promotional materials, subject to your standard trademark usage guidelines that you provide to us from time-to-time.

We both agree not to tell anyone else about confidential information that we get from each other and only to use it as agreed to in these Terms, including the Data Protection Addendum, which refers to the Privacy Policy.

Money alone may not be enough to make either of us whole if one of us breaks our promise of confidentiality. So, we both can seek other remedies (like gag orders), if needed.

11.4 Confidentiality

11.4.1 Confidential Information

“Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure.

Confidential information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.

Leeward recognizes that the “Professional Temporary Employee(s)” (“PTE’s”) who may be assigned to you under contract may have access to proprietary and confidential information. Leeward will require each of its PTE’s to treat your information as confidential and to agree not to disclose it to any third person.

Proprietary and/or confidential information does not include any of the following:

• has lawfully been published and has become a part of the public domain other than by the acts or omissions of Leeward or its employees;
• has been lawfully furnished or made known to Leeward by third parties (other than those acting directly or indirectly for or on behalf of You) without restriction as to its disclosure or use;
• was in Leeward’s possession at the time Leeward entered into these Terms and was not acquired by Leeward or its current or former employees directly or indirectly from You or Your employees;
• was independently developed by Leeward subsequent to entering into these Terms and was not acquired by Leeward or its current or former employees directly or indirectly from You or Your employees; or
• is released in response to a subpoena, court order or other legal process with at least five days of notice to You.

11.4.2 Use and Disclosure

The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of the like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for the purposes consistent with this Agreement and who are legally bound to keep such information confidential consistent with the terms of this Section 11. Leeward may disclose the terms of any Order Form or other purchase of Services to its affiliates, legal counsel and accountants without your prior written consent, and Leeward will remain responsible for its affiliate’s, legal counsel’s or accountant’s compliance with this Section 11 (Confidentiality). Notwithstanding the foregoing, (x) Leeward may disclose the terms of this Agreement and any applicable purchase transaction to a subcontractor to the extent necessary to perform Leeward’s obligations under this agreement, and (y) Leeward may use and disclose your Confidential Information as necessary to provide the Services, including as set forth in the Data Protection Addendum, and in each case of (x) and (y) under terms of confidentiality materially as protective as set forth herein.

11.4.3 Compelled Disclosure

Leeward may disclose your Confidential Information if required pursuant to a regulation, law or court order. We will give you notice of the compelled disclosure (to the extent legally permitted). You will cover our reasonable legal fees for preparation of witnesses, deposition and testimony to the extent such compelled disclosure is in connection with a lawsuit or legal proceeding to which you are a party or to the extent fees are incurred in connection with reasonable assistance we provide to you in connection with your efforts to contest disclosure.

11.5 Injunctive Relief

The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section 11, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

12. Representations and Warranties; Warranty Disclaimer

If you want to record or monitor calls, messages, or any other form of communications, then be warned that there are laws that govern these types of activities. You MUST comply with every law and regulation that applies. Be sure to get permission from anyone you want to record / monitor. If you break any applicable laws or regulations and, as a result, Leeward is sued, investigated, etc., then you will be liable for these expenses.

You promise that you are only providing Leeward any customer data for which you’ve given required notice and received permission as required by law. In addition, we will only use an disclose this customer data following Section 4 above.

12.1 Representations and Warranties

12.1.1 Recordings and Communications Monitoring

You represent and warrant that if you record or monitor telephone calls, SMS messages, video or audio conference calls, or other communications using the Services, then you will comply with all applicable laws prior to doing so and will secure all required prior consents to record or monitor communications using the Services. We make no representations or warranties with respect to recording or monitoring of telephone calls, SMS messages, or other communications. You acknowledge that these representations, warranties, and obligations are essential to the our ability to provide you with access to video teleconferencing and monitoring features that are part of the Services, and you further agree to indemnify us and our affiliates in accordance with the terms of Section 13 (Mutual Indemnification) for claims arising out of or related to your acts or omissions in connection with providing notice and obtaining consents regarding such recording or monitoring of telephone calls, SMS messages, or other communications using the Services.

12.1.2 Customer Data

You represent and warrant that you have provided (and will continue to provide) adequate notices and have obtained (and will continue to obtain) the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 4 (Our Use of Customer Data).

12.1.3 Services

We represent and warrant that the Services will perform materially in accordance with the applicable Documentation. Leeward’s sole obligation, and your sole and exclusive remedy, in the event of any failure by Leeward to comply with this Section 12.1.3 will be for Leeward to, at Leeward’s option, re-perform the affected Services or refund to you the fees you actually paid for the affected Services.

Both you and Leeward must follow U.S. export and economic sanctions laws. We are both swearing that we and our organizations are not on any of the lists that the U.S. government publishes of people and organizations that U.S. companies are not allowed to do business with.

12.1.4 Export Controls

The Services may be subject to applicable export control and economic sanctions laws of the U.S. and other jurisdictions. Leeward and You each agree to comply strictly with all domestic and international export laws and economic sanctions regulations, in the case of Leeward, in providing the Services, and, in the case of you, in receiving and using the Services respectively, and to the extent consistent with these Terms, you will obtain any necessary license or other authorization to export, re-export, or transfer the Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer the Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). Leeward represents that Leeward is not named on a U.S. government exclusion list. You represent that you or any End User using the Services is not named on a U.S. government exclusion list, and you further warrant that you will immediately discontinue use of the Services if you or any End User using the Services becomes placed on any such list.

Except for any of our explicit warranties in this Section 12 and our obligations described in these Terms, we are offering our Services “as is.”

Additionally, we have no liability associated with “Sensitive Data” (like social security numbers or private health information) you choose to send through the Services.

12.2 Disclaimers

12.2.1 GENERAL DISCLAIMER.

WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS”, AND LEEWARD MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND LEEWARD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PERTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW. LEEWARD ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS. BETA OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH NO WARRANTIES WAHTSOEVER, AND LEEWARD SHALL HAVE NO LIABALITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA OFFERING. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LEEWARD WILL NOT BE LIABLE AND WILL HAVE NO OBLIGATION TO INDEMNIFY CUSTOMER FOR SENSITIVE DATA THAT YOU OR ANY END USER SENDS TO LEEWARD.

“Sensitive Data” has the meaning given in the Acceptable Usage Policy (“AUP”).

13. Mutual Indemnification

There are limits to what we indemnify you for. Leeward will not pay for any bills, damages, costs, etc. for (1) a claim that was filed because you violated these terms and (2) any intellectual property infringement claim that arises from your use of our Services with other applications, products, or services, or (3) if you did not pay us for the Services and they were free of charge.

13.1 Indemnification by Leeward

We will defend you from and against all claims, demands, suits or proceedings made or brought against you by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (“Infringement Claim”), and will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for amounts you pay to settle an Infringement Claim under a settlement for which Leeward has given its written approval.

13.2 Infringement Options

If your use of the Services has become, or in Leeward’s opinion is likely to become, the subject of any Infringement Claim, Leeward may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 13 states your exclusive remedy for any Infringement Claim by a third party.

13.3 Limitations

Leeward will have no liability or obligation with respect to any Infringement Claim and a court award of damages (a) arising out of your use of the Services in beach of these Terms, (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing, or (c) arising from Services for which there is no charge.

If a third party sues Leeward because:

• You or your End Users violate these terms;
• of something you or your End Users do while using our services; or
• of something related to your application(s),

then you are solely responsible for any related damages awarded by the Court.

13.4 Indemnification by You

You will defend Leeward, its officers, directors, employees, and affiliates (“Leeward Indemnified Parties”) from and against any claim, demand, suit or proceeding made or brought against a Leeward Indemnified Party by a third party alleging or arising out of (a) your or any of your End Users’ breach of these Terms or your obligations under Section 5 (Customer Responsibilities, Restrictions and Requirements), or breach of your representations or warranties under Section 12 of these Terms; (b) or (c) your Customer Application, including, without limitation, any intellectual property claims for infringement or misappropriation relating to each Customer Application (collectively, “Customer Indemnifiable Claims”) and will indemnify Leeward from any damages, attorney fees, and costs finally awarded against Leeward Indemnified Parties as a result of, or for amounts paid by Leeward Indemnified Parties to settle a Customer Indemnifiable Claim under a settlement for which you have given your written approval.

13.5 Conditions of Indemnification

As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim, as applicable (“collectively referred to as “Claim”), provided, however, that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 13 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.

14. Term; Termination

These terms become effective on the day you click “I Accept” or when you or someone else starts using our Services under your customer account.

14.1 Term

These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 14.2 (Termination) below (“Term”).

14.2 Termination

Either party may terminate these Terms and close your customer account(s) for any reason upon five (5) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) or Statement(s) of Work (SOW) in effect, then these Terms will not terminate until such Order Form(s) or Statement(s) of Work (SOW) have expired or been terminated. Leeward, at its sole discretion, may terminate these Terms and close your customer account(s) in the event you commit any material breach of these Terms and fail to remedy that breach within five (5) days after Leeward provides written notice of that breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and you fail to remedy that breach within five (5) days after providing written notice of that breach to us.

15. Survival

Some terms live on even after these Terms of Services end. That includes your payment obligations and Sections mentioned.

Upon termination of these Terms, your payment obligations, the terms of this Section 15, and the terms of the following Sections will survive (i.e. still apply): Section 4 (Customer Data), Section 10 (Fees, Payment Terms, Taxes), Section 11 (Ownership and Confidentiality), Section 13 (Mutual Indemnification), Section 16 (General), and Section 17 (Agreement to Arbitrate).

16. General

We both agree to follow the law, regulations, and statues that apply to us.

16.1 Compliance with Laws

You will comply with the applicable law relating to your respective activities pursuant to these Terms. Leeward will provide the Services in accordance with laws applicable to Leeward’s provision of the Services to its customers generally (i.e. without regard for the Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and applicable Order Form or Statement of Work (SOW) (if any).

16.2 No Waiver, Order of Precedence

Our failure to enforce at any time any provision of these Terms, our Acceptable Use Policy, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, our Acceptable Use Policy, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (except as otherwise expressly set forth in an applicable Order Form or Statement of Work (SOW)): (1) the AUP, (2) product-specific terms, (3) the Terms of Service and (4) the Documentation.

You may not transfer these terms or your obligations under these Terms to someone else without written consent from Leeward. We can transfer these terms and our obligations under these terms without consent.

16.3 Assignment

You will not assign or otherwise transfer these Terms, in whole or in part, without Leeward’s prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be void. Leeward may assign these Terms, in whole or in part, without consent. Subject to this Section 16.3, these Terms will be binding on both you and Leeward and each of our successors and assigns.

16.4 Relationship

You and Leeward are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, joint venture, or franchise. You and Leeward will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and Leeward will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor Leeward has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.

Except as explained in Section 17, if any part of these terms is not enforceable, the rest of the terms will still be enforceable.

16.5 Severability

Except as described in Section 17 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal or competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.

16.6 Notices

Any notice required or permitted to be given hereunder will be given in writing to the party at the address specified in this Agreement by personal delivery, certified mail, return receipt request, overnight delivery by a nationally recognized carrier or by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer in its account. Notices to Leeward shall be copied to legalnotices@leewardx.com, Attn: General Counsel.

16.7 Force Majeure

No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority, fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.

16.8 Government Terms

We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense.

16.9 Governing Law and Venue

The enforceability and interpretation of Section 17 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 17, these Terms will be governed by and interpreted according to the laws of the State of Nevada without regard to conflicts of laws and principals that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 17 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the Services shall be instituted in either the state or federal courts of Henderson, Nevada, and we each consent to the personal jurisdiction of these courts.

16.10 Entire Agreement

Except as provided in these Terms and any exhibits or addenda or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Leeward, its agents or employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to these Terms between you and Leeward and be non-binding against Leeward even if signed by Leeward after the date you accept these Terms.

17. Agreement to Arbitrate

Please reach out to our Customer Support Team (they’re amazing!) before bringing a legal case. More disputes can be resolved that way.

If our Customer support team can’t help you with a dispute, then we both agree to go to binding arbitration in Henderson, Nevada. Arbitration means a professional arbitrator will decide how to resolve our dispute instead of a judge or a jury deciding the case.

17.1 We Both Agree to Arbitrate

If a dispute cannot be resolved through our Customer Support Team, you or any of your affiliates on one hand and Leeward and any of Leeward’s affiliates on the other hand, all agree to resolve any dispute relating to these Terms or in relation to the Services by binding arbitration in Henderson, Nevada.

This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below in Section 17.2 (Exception to Agreement to Arbitrate). It also applies even after you have stopped using your customer account(s) or closed it. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.

Pursuant to this Section 17 (Agreement to Arbitrate), you understand that you and your affiliates and Twilio and its affiliates are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to these Terms or the Services.

17.2 Exceptions to Agreement to Arbitrate

You and your affiliates on one hand, and Leeward and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to:

• Your, your affiliates, Leeward’s or Leeward’s affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
• Your violation of our Acceptable Use Policy

Also, any of us can bring a claim in small claims court either in Henderson, Nevada, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.

17.3 Details of Arbitration Procedure

Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with Rules. To the extent anything described in this Section 17 conflicts with the Rules, the language of this Section 17 applies. Each of us will be entitled to receive a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 17 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Nevada and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.

17.4 Class Action Waiver

Both you and your affiliates, on the one hand, and Leeward and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Twilio and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceedings (unless we agree otherwise). And, the arbitrator’s decision on award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Leeward customers, and cannot be used to decide other disputes with other customers. If a court decides that this Section 17.4 (Class Action Waiver) is not enforceable or valid, then the entire Section 17 (Agreement to Arbitrate) will be null and void; however, the rest of the Terms will still apply.

19. Additional Terms

These terms apply to customers from the EEA, UK or Switzerland:

For customers using Leeward to process personal data from the European Economic Area (EEA), Switzerland, or the United Kingdom:

EU Data Protection Addendum. If Leeward will be processing personal data from the EEA, Switzerland, or the United Kingdom on your behalf, the Data Protection Addendum incorporated by reference into these Terms of Service will apply.

For more information about Leeward’s compliance with the GDPR, please visit www.leewardx.com/legal.
A. For Customers who reside in European Economic Area (EEA), Switzerland, or the United Kingdom: the following additional terms shall apply:

• In relation to the limitation of liability: Nothing in this Agreement shall exclude or limit the liability of either party for (i) gross negligence or intentional misconduct of such party, (ii) death or personal injury caused by that party’s negligence or (iii) fraud or fraudulent misrepresentation or (iv) any other liability to the extent that the same may not be excluded or limited as a matter of applicable law.
• In relation to updating these Terms: Leeward may amend or modify these Terms from time-to-time, in which case the amended or modified version of these Terms will supersede all prior versions. Leeward will notify you via email to the email address owner of your account (or to your account portal if you have not been using Services for the prior 6 months) not less than thirty (30) days prior to the effective date of any such amendment or modification and will inform you about the intended amendments or modifications. If you do not object to the amendment or modification within thirty (30) days from the aforementioned notice, such non-objection may be relied upon by Leeward as your consent to any such amendment or modification. Leeward will inform you about your right to object and the consequences of non-objection with the aforementioned notice. Please note, Leeward may not be able to provide at least thirty (30) days prior written notice of updates to these Terms of Service that result from changes in the law or requirements from telecommunications providers.

These terms apply to customers who reside in Germany:

B. For Customers who reside in Germany the following additional terms shall apply:

In relation to Warranties:

(aa) Leeward warrants that the Services will operate in accordance with the Documentation and will materially comply with any specifications contained therein. Both parties agree that to the extent the Customer is entitled to any statutory warranty rights, the applicable statutory warranty period is hereby reduced to twelve (12) months.

(bb) Any and all further warranties are excluded.

20. Individual Statements of Work (“SOW”)

Leeward online Services under these Terms may be accessed online without executing an individual Order Form or Statement of Work (“SOW”). You may browse Leeward online content and create a customer Account in accordance with these Terms of Service.

UPON ENGAGING LEEWARD INDIVIDUAL HUMAN RESOURCES FOR HIRE, (A) IN A SELF-MANAGED CONTEXT, OR (B) IN A LEEWARD-MANAGED CONTEXT; YOU WILL BE REQUIRED TO EXECUTE AN INDIVIDUAL STATEMENT OF WORK (“SOW”) FOR EACH AND EVERY HUMAN RESOURCE (“CONTRACTOR”) THAT YOU HIRE. UPON HIRING RESOURCES, YOU WILL BE ENTERING A PAID RELATIONSHIP WITH LEEWARD. THE FOLLOWING SECTIONS REFER TO YOUR USE OF PAID SERVICES WHEREBY YOU ARE THE “CLIENT”.

20.1 Statement of Work

CLIENT has requested that Leeward supply persons to CLIENT on a temporary basis to supplement CLIENT’S own work force. Leeward will supply to CLIENT such persons as CLIENT may from time to time request, to work under CLIENT’s direction, control and supervision.

20.2 Persons Supplied by Leeward

Except as stated in Section 20.5 below, all of the persons Leeward supplies to supplement CLIENT’s work force are contracted “Professional Temporary Employee(s)” of AGENCY (hereafter collectively referred to as “PTE’s”). AGENCY will pay the wages of the PTE’s and reimburse PTE’s for any CLIENT-approved out-of-pocket expenses, which shall be billed to CLIENT at cost.

AGENCY will only supply PTE’s to work at AGENCY’s premises that have been approved by CLIENT for the assignment – either as a result of CLIENT having personally interviewed them, as a result of CLIENT having reviewed their resumes, as a result of CLIENT waiving interview rights, or on some other basis upon which CLIENT and AGENCY will agree.

For each such PTE, AGENCY will send to CLIENT a Statement of Work (“SOW”) that will reflect the employment status of the PTE, as well as contain the hourly billing rates that AGENCY has agreed to accept, and which CLIENT has agreed to pay for the PTE. In the event of any conflict between these Terms of and an individual SOW, the SOW shall govern.

All overtime will be billed to CLIENT and paid to AGENCY in accordance with applicable United States federal, state, and local laws. CLIENT agrees to schedule all PTE’s’ work in a manner that enables PTE’s to take any meal, rest, or other breaks required by applicable law or local law which governs the PTE’s local or regional office location.

AGENCY and CLIENT acknowledge and agree that, with respect to PTE’s supplied to CLIENT, AGENCY shall conduct those background and other checks as specifically requested by CLIENT in writing. CLIENT will reimburse AGENCY for such background checks at cost.

AGENCY and CLIENT are independent contractors. AGENCY is not CLIENT’s legal partner, co-venturer, principal, agent, insurer or representative. Neither AGENCY nor any PTE has any claim to CLIENT’s revenues related to their work. PTE’s have no authority to bind AGENCY legally.

20.3 Leeward’s Additional Responsibilities

It is mutually agreed that any of AGENCY’s PTE’s performing services under these Terms of Service shall remain employees of AGENCY, and AGENCY will be solely responsible for: recruiting, interviewing, hiring, disciplining and terminating its employees. Except as stipulated in Section 22 below, AGENCY’s PTE’s shall neither become employees of CLIENT or CLIENT’s client(s), nor be entitled to any rights, benefits, compensation, damages, or contributions under any employee benefit plan, or privileges of CLIENT’s employees. Further, AGENCY will:

• maintain all necessary personnel and payroll records for its employees assigned to CLIENT;
• pay gross wages and provide any legally required benefits directly to its employees;
• handle employee work-related claims and complaints; and
• after review by AGENCY, require all PTE’s servicing CLIENT to execute CLIENT’s NDA requiring them to, at a minimum, (i) treat all CLIENT information as confidential and proprietary; (ii) refrain from using third party confidential/proprietary information in connection with services for CLIENT; and (iii) refrain from bringing third party confidential/proprietary information onto CLIENT’s premises.

AGENCY is responsible for ensuring that the work of its PTE’s is consistent with CLIENT’s pertinent safety regulations and all other reasonable health, safety, environmental, and behavioral requirements. AGENCY shall ensure that its PTE’s adhere to the provisions of these Terms of Service and will perform in accordance with applicable laws, regulations, and CLIENT’s company policies.

Unless specifically approved by Leeward in writing, AGENCY is not undertaking to provide CLIENT with a specific design, engineering or system concept or solution to a particular problem. Accordingly, AGENCY does not warrant or guarantee that the PTE’s will produce a technical solution to CLIENT’s particular problem or need. Rather, the PTE’s are supplied to augment CLIENT’s existing technical capabilities to perform such technical services as CLIENT may direct.

Notwithstanding the foregoing, CLIENT may grant, and AGENCY may accept specific warranties for a technical solution if mutually approved by all parties, with terms and conditions specifically set forth in writing in the context of an individual Statement of Work (SOW) contract and executed by all parties.

20.4 Your Additional Responsibilities

In connection with the performance of these Terms, CLIENT will comply with all applicable laws, regulations and orders, including, but not limited to, the Equal Opportunity Employment Act, Occupational Safety and Health Act, the Fair Labor Standards Act, the Immigration Reform and Control Act and any substantially equivalent provisions.

CLIENT acknowledges that AGENCY is an equal opportunity employer, and agrees that it shall not harass, discriminate against or retaliate against any PTE because of his or her race, color, religion, national origin, age, sex, disability, marital status, veteran status or other category protected by law. CLIENT represents that it has in place policies prohibiting harassment in the workplace (including sexual harassment).

CLIENT will control the details of the work and will be responsible for the work product of the PTE’s assigned to perform the services.

20.5 Subcontracting

AGENCY, with CLIENT’s express, prior, written consent, may subcontract assignments under this MSA. AGENCY assumes all liability, with respect to CLIENT, for its Subcontractors. CLIENT may approve Subcontractor’s employees as outlined in Section 20.2 “Persons Supplied by Agency.” Subcontractor will complete the employer obligations as outlined in Section 20.3 “Leeward’s Additional Responsibilities.” All relevant provisions of these Terms which benefit CLIENT, including but not limited to indemnification and insurance provisions, will be a part of any agreement that AGENCY enters into with Subcontractor.

20.6 Further DISCLAIMER of Liability

AGENCY expressly disclaims liability for any claim, loss or liability of any kind resulting from:

• Claims by PTE’s for benefits, compensation, damages, contributions or penalties under any employee benefit plans sponsored and maintained by CLIENT, whether or not CLIENT’s plans exclude PTE’s from coverage, to the extent that such claims were due to AGENCY or PTE’s reasonably acting on the direct representations or direction by CLIENT, CLIENT’s employees or CLIENT’s written corporate plans, policies and procedures. AGENCY further agrees to require each of its employees to execute a document waiving the rights to any such benefits.
• Promises of increased compensation or benefits made by CLIENT to PTE’s.
• Claims by any person relating to CLIENT’s products or services that are not attributable to AGENCY or the PTE’s performance under this MSA.
• CLIENT assigning PTE’s to duties materially different from their original duties or CLIENT making substantial changes to PTE’s’ job duties or risks without AGENCY’s prior written approval.
• Claims by any person based on allegations that CLIENT’s business activities damaged the environment.
• The conduct of CLIENT’s officers, employees and agents.
• A violation or breach by CLIENT of any law, statute or regulation.

20.7 PTE Hours Approval

All PTE’s’ fees are to be approved in arrears by CLIENT. All PTE’s’ billable hours (“Work”) are to be approved by CLIENT on a weekly basis. For the complete duration of any active Statement of Work (“SOW”), CLIENT shall be continuously and always provided with a breakout of PTE hours. PTE billable hours and a detailed accounting for all PTE Work activities are made available in real-time for CLIENT to access via the Leeward online website portal. Please see www.leewardx.com and main dashboard screen as well as “Manage My Team” page(s).

PTE hours may be considered open for CLIENT review, (“Review Period), for a period of five (5) days post the date of completion of actual Work. CLIENT may disapprove or dispute any billable (logged) Work hours (“Disputed Work”) at any time within the active Review Period by clicking on the “Dispute Work” button. Disputed Work shall be automatically dropped from the CLIENT monthly billing statement and a resolution helpdesk ticket will be created and sent to Leeward’s Customer Service Team. Hours may be added back to the monthly billing statement at Leeward’s sole discretion after a review is completed. If billing abuse is discovered by Leeward during such a review process, Leeward may terminate the Services at Leeward’s sole discretion.

All undisputed Work is implicitly approved by CLIENT after five (5) business days. If the CLIENT feels that there is Disputed Work after the close of the Review Period, CLIENT may contact Leeward Customer Service Team for assistance. Leeward is under no obligation to refund disputed hours and may choose to do so at its sole discretion.

The term of any Statement of Work (“SOW”) will be defined in the SOW, with a specific start date and end date of the SOW included. You may terminate any SOW for any non-discriminatory reasons by giving fifteen (15) business days’ written notice of such termination.

It is understood and agreed that this paragraph sets forth your exclusive remedy for unsatisfactory performance by Leeward’s PTE’s, including any claim that the work produced by Leeward’s PTE was unsatisfactory.

Both parties agree that termination of any SOW has no effect on these Terms of Services, and these Terms of Services will remain in full force and effect unless specifically terminated.

20.8 PTE Personal Time Off and Pro-Rata

PTE’s may from time to time take sick days, vacation days, or observe non-working holidays as elective Personal Time Off (“PTO”) in accordance with their employment contracts. PTO hours are generally not billable to CLIENT unless otherwise stated in an individual Statement of Work (“SOW”). In the case of the latter, the SOW shall govern.

Individual Statements of Work (“SOW”) are generally written to conform to a monthly minimum standard of hours. PTO observance(s) that result in billable Work hours that are less than that which is stated in an individual Statement of Work (“SOW”) shall generate a (“Credit”) balance for CLIENT.

Credit balances shall generally be applied as a Pro-Rated discount against subsequent monthly billing. Under the circumstance whereby Services are completely terminated and there are no additional or open SOW contracts, and no additional Work planned forward, Leeward will apply Credit (“Refund”) back to Client account within thirty (30) days of the last date of Work.

Unplanned termination of Services, or the unplanned termination of a SOW contract prior to the agreed upon end-date are deemed non-refundable.

21. Work for Hire

All work performed by a PTE shall be considered work for hire (“WORK”), and ownership of the WORK and all copyrights, trademarks, patents, proprietary information, trade secrets, intellectual property and other rights are and shall be deemed owned by CLIENT, and not by PTE or Leeward, both during the performance of the WORK and upon completion. To the extent that any portion of the WORK may not be considered “work for hire” under applicable law, Leeward shall cause each PTE to, irrevocably assign to CLIENT all of Leeward’s and PTE’s right, title and interest in and to such portions of the Work. Leeward grants to, and shall cause each PTE to grant, CLIENT the right to copy and freely distribute materials produced under these Terms.

22. Solicitation of Employees

During the term of this agreement and for one hundred eighty (180) days after its termination, CLIENT agrees not to solicit or hire, either directly or indirectly, as a full-time employee or in any consulting capacity, any of the PTE’s supplied to CLIENT by Leeward.

For the purposes of clarity, CLIENT agrees that the prohibition described in this Section 22 applies to any PTE supplied to CLIENT by Leeward, regardless of whether or not the PTE ever provides actual services to CLIENT, and expressly includes: any PTE whose resume is received by CLIENT from Leeward; any PTE interviewed by CLIENT as a result of being supplied by Leeward; and any PTE supplied by Leeward for an actual assignment to CLIENT. An exception to this prohibition is set forth below.

However, this prohibition may be mitigated if Leeward and CLIENT agree in writing that Leeward will release a PTE directly to CLIENT in order for CLIENT to hire said PTE.

23. Statutory Increases

If Leeward, as the employer of the PTE’s, is mandated by statute or regulation to pay taxes or premiums which are (a) directly related to the employment of the PTE’s currently on assignment under these Terms; and (b) the result of a change in the law after the time that a PTE was assigned to CLIENT under these Terms, then AGENCY shall notify CLIENT in writing of any increase in the billing rate caused by such mandate. CLIENT will have thirty (30) days after receipt of such notice from Leeward to accept or reject such new billing rate, in writing. If CLIENT rejects the new billing rate, then Leeward shall have the option to immediately terminate the assignment of the affected PTE without liability to CLIENT.

24. Equal Employment Opportunity

It is Leeward’s policy to provide employment, training, compensation, promotion and other conditions of employment without regard to race, color, religion, national origin, sex, marital or veteran status, age, or the presence of a non-job-related disability. Leeward will follow this policy in supplying PTE’s to CLIENT under these Terms.

25. Right to Know Laws

Except as provided in the next paragraph, CLIENT represents that those persons who Leeward will supply to work at CLIENT’s premises will not be exposed to any hazardous chemicals (as defined by the OSHA Hazard Communication Standard or any applicable state/local “right to know” law) under normal operating conditions or any foreseeable emergencies.

If this is not presently the case, or if this changes in the future, CLIENT agrees to give Leeward immediate written notification so that CLIENT and Leeward may take any appropriate precautions required by the OSHA Hazard Communication Standard or any applicable state/local “right to know” law.

26. Disclosure to Foreign Persons

CLIENT acknowledges that both the disclosure of “Technical Data” and the provisions of a “Defense Service” related to any item on the “United States Munitions List” to a “Foreign Person” are controlled by the International Traffic in Arms Regulations (“ITAR”) under which those terms are defined (22 CFR 120-130). CLIENT warrants and covenants that it will not ask, require or allow any of Leeward’s PTE’s supplied to CLIENT under this MSA, while performing work for CLIENT or under CLIENT’s direction, to disclose Technical Data to, or perform a Defense Service for, a Foreign Person without first informing Leeward of its intention to do so, so that Leeward may obtain requisite licensing or other approval from the U.S. Department of State.

27. Classified Materials or Projects

CLIENT warrants and covenants that it will not ask, require or allow any of Leeward’s cleared PTE’s supplied to CLIENT under this MSA to perform work on classified projects, or to otherwise gain access to classified information, without first briefing Leeward’s cleared PTE’s regarding all such local procedures as are required by CLIENT's facility clearance.

28. Waiver

The failure of either CLIENT or Leeward to enforce at any time, or from time to time, any provision of this MSA shall not be construed as a waiver thereof.

29. Amendment

These Terms may be amended only by a written agreement between CLIENT and Leeward that expressly amends, terminates or supersedes these Terms.

30. Validity of Terms

If any term or provision of these Terms shall be held void, illegal, unenforceable or in conflict with any law of a federal, state or local government having jurisdiction over these Terms, the validity of the remaining portions or provisions of these Terms shall not be affected thereby.

31. Non-Compete

Leeward shall not assign any PTE who has worked with CLIENT (“Quarantined Personnel”) to work with CLIENT’s competitors for a period of six (6) months after such Quarantined Personnel cease to work with CLIENT. This restriction shall not apply to any PTE who leaves Leeward’s employ following the completion of their assignment with CLIENT.

32. Ownership and Intellectual Property Rights

CLIENT and Leeward shall retain ownership of their respective, pre-existing intellectual property (IP), including any derivative works as that term is used in the U.S. Copyright Act of such IP whether or not created in the course of performance under this Agreement, and no license therein, whether express or implied, is granted by this Agreement or as a result of the work performed hereunder. To the extent the parties wish to grant one another rights in pre-existing IP, separate license agreements will be executed.

(b) As to any deliverable item specifically identified and produced as a result of this Agreement and provided by Leeward to CLIENT, as between Leeward and CLIENT, and subject to any applicable third-party rights, CLIENT shall take title to such deliverable.

(d) Ownership of materials purchased by Leeward on behalf of CLIENT in furtherance of its performance of this Agreement shall vest in CLIENT upon appropriate payment thereof by CLIENT.

33. Mutual Non-Disclosure Agreement

Effective Date: The (“Effective Date”) of these terms is the date you sign up for Services.

End Date: Two (2) years from the termination of these Terms of Service

To protect certain proprietary or confidential information (either or both of which are herein described as “Proprietary Information”) which may be disclosed between them, Leeward which is acting collectively for itself and for its subsidiaries and affiliates (“Leeward”) and the You, the “CLIENT”, collectively (“The Parties”), agree that:

• The disclosing party / parties (“Discloser”) or Private Information is/are: a. Leeward and You, the CLIENT
• The Parties DO NOT desire to specify representatives authorized to disclose and/or receive Proprietary Information. Lack of specification will not affect the obligations regarding treatment of Proprietary Information.
• Proprietary information includes without limitation: data, which a disclosing party now or in the future possesses relating to certain technical, business, financial, and other data generally considered by that party to be confidential.
• The Parties DO NOT desire to specify the type of Proprietary Information to be disclosed under this Agreement and the express purpose for such disclosures. Lack of specification will not affect the obligations regarding treatment of Proprietary Information.
• This Agreement controls only Proprietary Information, which is disclosed on or after the Effective Date. This Agreement shall terminate on the End Date. The party receiving the Proprietary Information (“Recipient”) will continue to protect Proprietary Information for a period of two years beyond the termination of this Agreement. This clause shall survive termination.
• Either party may terminate this Agreement upon thirty days written notice. Within ten days of termination of this Agreement, Recipient will return or destroy all Proprietary Information received (including all copies) and provide the Discloser with documentation attesting to that fact.
• Recipient shall not disclose Proprietary Information to any third party without the prior written consent of the Discloser and shall limit its disclosure to itself (if an individual), its employees, agents, and consultants having a need to know and who are under non-disclosure obligations no less restrictive than in this Agreement. Recipient shall cooperate with Discloser in fully enforcing any such obligations. Recipient shall protect the disclosed Proprietary Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of the Proprietary Information as Recipient uses to protect its own proprietary or confidential information of a like nature. Recipient may make copies of the Proprietary Information as reasonably necessary to effectuate the intent of entering into this Agreement, provided each copy is considered Proprietary Information and all proprietary legends or markings on the original are retained on the copies.
• Recipient shall have a duty to protect only that Proprietary Information which is (a) Disclosed by the Discloser in writing (to include electronic transmissions and data files) and is marked as “Proprietary” or “Confidential,” or with a similar legend, at the time of disclosure, or which is; (b) disclosed by the Discloser in any other manner and is identified as proprietary or confidential at the time of disclosure and is summarized and designated as proprietary or confidential in a written memorandum delivered to the Recipient.
• The obligations herein will not apply to any information which is (a) available to the public other than by breach of this Agreement by Recipient; (b) rightfully received by Recipient from a third party without proprietary or confidential limitations; (c) independently developed by Recipient's employees; (d) known to Recipient prior to first receipt of same from Discloser; or (e) hereinafter disclosed by the Discloser to a third party without restriction on disclosure.
• Each Discloser warrants that it has the right to make the disclosures under this Agreement. NEITHER PARTY MAKES ANY EXPRESS WARRANTIES AND DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO INFORMATION DELIVERED HEREUNDER, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM PATENT OR COPYRIGHT INFRINGEMENT, WHETHER ARISING BY LAW, CUSTOM, OR CONDUCT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES.
• Neither party has an obligation under this Agreement to offer for sale products using or incorporating the Proprietary Information. Either party may, at its sole discretion, using its own information, offer such products for sale and may modify them or discontinue sale at any time.
• Neither party has an obligation under this Agreement to purchase any product or service from the other party. The parties do not intend that any agency or partnership relationship be created by them by this Agreement. All additions or modifications to this Agreement must be made in writing and signed by both parties. This Agreement is the full understanding of the Parties relative to the protection of Proprietary Information and supersedes all other understandings with respect thereto. Neither party acquires any licenses or any other intellectual property rights of the other party under this Agreement. This Agreement is made under and shall be construed according to the laws of the State of Nevada, excluding its principles of conflicts of laws.
• Recipient may reproduce and disclose Proprietary Information as part of a proposal to a potential customer provided (a) if the customer is the U.S. Government that the Proprietary Information shall be disclosed pursuant to and bearing the appropriate legends set forth in the applicable regulations; (b) if the customer is other than the U.S. Government that the customer is under non-disclosure obligations no less restrictive than in this Agreement; and (c) Recipient informs the Discloser of the intent to reproduce and disclose Proprietary Information as part of a proposal reasonably in advance of doing so.

34. Counterparts

These terms, comprising the (“AGREEMENT”), may be executed in any number of counterparts (including facsimile counterparts), each of which will be deemed an original, but all of which taken together shall constitute one single agreement between the parties.

Intending to be legally bound, these Terms of Service are executed by authorized representatives of both parties hereto.

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WHEN YOU SIGN UP FOR SERVICES, YOU WILL BE ELECTRONICALLY SIGNING THIS DOCUMENT WITH YOUR FULL NAME, EMAIL ADDRESS, AND IP-ADDRESS. IF YOU DO NOT AGREE WITH THESE TERMS, THEN DO NOT USE THE SERVICES.