MERCHANT PARTICIPATION TERMS AND CONDITIONS 

The County of San Mateo, a political subdivision of the State of California (“County”, “we” or “us”), has engaged Colu Technologies (US) Inc., a Delaware corporation (“Colu”), to provide certain services in connection with a government technology SaaS (Software as a Service) platform that enables municipalities and counties to increase civic and community engagement by rewarding residents for taking actions that promote certain strategic goals (the “Platform”). The Platform includes, inter alia, a customized County-branded mobile application (the “Application” or “App”) for Users (as defined below). You are a business (“Merchant” or “you”, and together with County, the “Parties,” and each a “Party”) located in the jurisdictional boundaries of the County (the “Territory”). County desires that Merchant participate in the Program (as defined below) as a Redeeming Merchant (as defined below) under these Terms and Conditions, and you desire to participate in the Program as a Redeeming Merchant.

The following are the terms and conditions of your participation in the Program and governs your relationship with County (the “Terms and Conditions”). These Terms and Conditions form a legal agreement between you and the County.  By signing these Terms and Conditions you agree to comply with and be bound by these terms and conditions.  

These Terms and Conditions in no way obligate us to permit you to join the Program.  We reserve the right not to permit you to join in the Program, and in any such a case we will notify you.

We reserve the right, at our sole discretion, to change or modify portions of these Terms and Conditions at any time. If we do this, we will notify you of the changes through an email message to the address you have provided us, and will indicate the date these terms were last revised. Your continued participation in the Program after the date any such changes become effective constitutes your acceptance of the new Terms and Conditions. If you do not wish to accept the new Terms and Conditions, you need to terminate this agreement in accordance with the termination process in these Terms and Conditions.

  1. Definitions.

“Account” means the account created by a User or Redeeming Merchant for purposes of participating in the Program.

“Account Balance” means the sum of all Redemption Credits accumulated in Merchant’s Account.

“Application” or “App” has the meaning set forth in the preamble to these Terms and Conditions.

“Campaign” means a campaign, selected by the County and published through the App, that Users can join and which sets forth the terms for Users to be rewarded with County Points, including identifying certain qualifying activities that Users can complete to earn County Points, including Qualifying Purchases.

“County” has the meaning set forth in the preamble.

“Platform Marks” means the trademarks, trade names, service marks, logos, color combination, insignia, or other marks and slogans and properties associated with the Platform or the Program, owned by either Colu or its parent company or County.

“County Points” means promotional value awarded to a User’s Account upon completion of Qualifying Actions that a User can exchange for goods and services at Redeeming Merchants, [branded as “SMC Points”].  The redemption value of each County Point equals One U.S. Dollar ($1.00)

 “Colu” has the meaning set forth in the preamble.

“Force Majeure Event” has the meaning set forth in Section 29.

“Impacted Party” has the meaning set forth in Section 29.

“Indemnified Party” has the meaning set forth in Section 14.

“Laws” means federal, state, and local laws, ordinances, and regulations and orders of a governmental authority.

“Merchant” has the meaning set forth in the preamble.

“Merchant Identification” has the meaning set forth in Section 5(b).

“Merchant Marks” means Merchant’s name, trademarks, trade names, service marks, logos, color combination, insignia, or other appropriate marks and slogans and properties.

“Party” has the meaning set forth in the preamble.

“Payment Processor” has the meaning set forth in Section 4(c).

“Platform” has the meaning set forth in the preamble.

“Program” has the meaning set forth in Section 2.

“Promotional Materials” means all advertising, marketing, and promotional materials in any form or medium (including, by way of illustration and not limitation, print, digital, internet, radio, and television advertisements, direct mail, telemarketing scripts, publicity materials, and website materials) used to promote the Program or Merchant’s participation as a Redeeming Merchant.

“Qualifying Actions” means an action or set of actions the completion of which is designated by the County in a Campaign as qualifying for awarding County Points to Users’ Accounts, in accordance with the Program Terms and the terms of a specific Campaign for the allocation of rewards, including Qualifying Purchases. 

“Qualifying Purchase” means the purchase of goods or services by a User from certain merchants in the Territory identified in a Campaign done in compliance with the terms and conditions of the Campaign and the Program Terms. For the avoidance of doubt, a Participating Merchant (including Merchant) may or may not be identified in any Campaign as an outlet for earning County Points upon Qualifying Purchases, at County’s sole discretion. 

“Redemption Credit” has the meaning set forth in Section 4(b).

“Redeeming Merchant” means a merchant or nonprofit organization located in the Territory that has agreed to participate in the Program.

“Redeeming Merchant TOUs” has the meaning set forth in Section 3.

“Redemption Payment” has the meaning set forth in Section 4(c).

“Redemption Payment Record Date” has the meaning set forth in Section 4(ac).

“Redemption Transaction” means the purchase of goods or services, or a contribution, by a User from a Redeeming Merchant where a portion of the consideration or the entire consideration for such goods or services is value, represented by County Points, redeemed from a User’s Account using the Application.

 “Term” has the meaning set forth in Section 11(a).

“Terms and Conditions” has the meaning set forth in the preamble and includes all schedules and exhibits hereto.

“Territory” has the meaning set forth in the Preamble.

“Users” means eligible individuals who have created Accounts to participate in the Program.

  1. Description of Program.  Using the Platform, County will conduct a county rewards program in the Territory to increase civic and community engagement by rewarding Users with access to promotional value in the form of County Points, redeemable at Redeeming Merchants, for completing Qualifying Actions (the “Program”).  

  2. Appointment.  Merchant hereby accepts the appointment by County, to act as a Redeeming Merchant during the Term in accordance with the terms and conditions of these Terms and Conditions.  County may in its sole discretion appoint any other person or entity to act as a Redeeming Merchant.  By accepting this appointment, Merchant agrees that, to the extent that Personal Information of Users is shared with Merchant in connection with the Program or these Terms and Conditions, Merchant will (a) use this information only in order to identify and confirm a Qualifying Purchase; (b) not disclose to others such Personal Information. In this section, "Personal Information" - information about an identifiable individual, such as their name, the date and amount of their purchase.   Merchant further agrees by accepting this appointment to receive mobile phone text messages and emails from or on behalf of County to the mobile phone number and email address provided by Merchant, including marketing and promotional messages; Merchant may opt-out from receiving marketing and promotional emails by contacting [email protected].  County may also offer Redeeming Merchants, including Merchant, the opportunity to sponsor certain Campaigns in exchange for a sponsorship fee.  The terms of any such sponsorship shall be mutually agreed by the Parties.  Merchant acknowledges that during the Term, the Platform may be modified to allow Merchant to access its Account through a web-based portal for Redeeming Merchants.  In the event such access is granted, Merchant agrees to comply with any terms of use that Colu may issue pertaining to Merchant’s use of such web-based portal and the Platform. 

  3. Terms of Redemption.

  1. As a Redeeming Merchant, Merchant shall redeem promotional value, in the form of County Points, when requested by Users, and apply such value toward all or part of the purchase price of any goods or services offered by Merchant.  The User shall determine the amount of promotional value redeemed by Merchant in connection with a Redemption Transaction; provided, however, that no User may redeem more than 2000 County Points a day.  

  2. County shall credit Merchant’s Account with One US Dollar ($1.00) for every County Point redeemed by Merchant in a Redemption Transaction (each a “Redemption Credit”).  

  3. County shall make a payment to Merchant for Redemption Credits within 10 (ten) business days from the 1st, 8th, 15th and 22nd day of each month, provided, however, that if the applicable day is on a U.S. Federal holiday, then such payment shall be made on the following business day (the “Redemption Payment”).  The amount of each Redemption Payment shall equal the amount of Merchant’s Account Balance as reflected in the records of the Platform as of the day before the scheduled payment date (each, a “Redemption Payment Record Date”).  Notwithstanding the foregoing, each Redemption Payment, except for the final Redemption Payment, shall be made only if Merchant’s Account Balance as reflected in the Platform as of the Redemption Payment Record Date exceeds One Hundred Dollars ($100). County shall make each Redemption Payment through a third party payment processor designated by County (the “Payment Processor”). To facilitate the Redemption Payments (and as a condition precedent to the effectiveness of these Terms and Conditions), Merchant acknowledges and agrees that Merchant shall provide the Payment Processor correct and complete information and documentation as may be required by the Payment Processor.           

  4. Except as expressly set forth in this Section 4(d), all redemptions of County Points in connection with Redemption Transactions are final and irrevocable. If, for any reason, a Redemption Transaction that resulted in a Redemption Credit is rescinded due to a technical error of a User (including, by way of illustration and not limitation, the inclusion of the incorrect Redeeming Merchant as part of such Redemption Transaction), then County shall (i) credit the appropriate User’s Account with the number of County Points redeemed by Merchant in such rescinded Redemption Transaction and (ii) debit from the appropriate Redeeming Merchant’s Account the Redemption Credits awarded to such Account as a result of such rescinded Redemption Transaction, provided that such error is reported to County at [email protected] within five (5) business days after the redemption associated with such rescinded Redemption Transaction.  If County attempts to debit Merchant’s Account pursuant to the terms of the preceding sentence and Merchant’s Account Balance is less than the number of Redemption Credits County is attempting to debit from Merchant’s Account, then County shall have the right to set off the number of such Redemption Credits against future Redemption Credits earned by Merchant.  If a Redemption Transaction is rescinded for any other reason (including, by way of illustration and not limitation, by the return of purchased goods or the refund of the purchase price for services rendered), or if a User’s technical error is not reported to [email protected] within the period set forth above, then the terms of such rescission shall be agreed, and any disputes relating thereto shall be resolved, by the User and Merchant, and County shall not be responsible for crediting or debiting either the User’s or Merchant’s Accounts in connection with such rescission.  In addition, County reserves the right to deduct from Merchant’s Account Balance any County Points that have been awarded to merchant in error, in connection with a fraudulent transaction or otherwise in breach of these Terms and Conditions. 

  5. Merchant is responsible for all charges, costs, and taxes in connection with Merchant’s sale of goods or services relating to these Terms and Conditions or to Merchant’s participation in the Program. Furthermore, for avoidance of doubt, any fees and expenses charged by Merchant’s bank and intermediary banks used by the Merchant’s bank in connection with payments to Merchant under these Terms and Conditions shall be borne by Merchant only. 

  1. License Grants.  

    (a)         Platform Marks.  Subject to these Terms and Conditions, Merchant is hereby granted a non-exclusive, non-transferable, and non-sublicensable license in the Territory during the Term solely on or in connection with Promotional Materials, in accordance with these Terms and Conditions, to use the Platform Marks.  Any use of the Platform Marks shall be subject to County’s prior written approval, which may be withheld in its sole and absolute discretion.  On expiration or earlier termination of these Terms and Conditions or upon County’s request, Merchant shall promptly discontinue the display or use of any Platform Mark or change the manner in which it is displayed or used with regard to Merchant’s goods or services or Promotional Materials.  Upon expiration or earlier termination of these Terms and Conditions, Merchant’s rights under this Section 5(a) shall cease immediately.  Other than the express licenses granted by this Section 5(a), County grants no right or license to Merchant is granted no right, by implication, estoppel, or otherwise, to any intellectual property rights.

(b) Merchant Marks and Merchant Identification.  Merchant hereby grants to County a non-exclusive, non-transferable, and non-sublicensable license in the Territory during the Term solely on or in connection with (i) display in the User App and other components of the Platform; (ii) Promotional Materials and (ii) publicizing, promoting, and advertising, through any form or medium, Merchant’s involvement in the Program, to use all Merchant Marks, as well as images (both still and video) of Merchant’s business and Merchant’s biographical and historical information and other content from Merchant’s website or social media publications (“Merchant Identification”). Notwithstanding the foregoing, unless specifically otherwise agreed, County may, at its discretion, continue to display Merchant Marks and Identifications in the User App, including, e.g., in stories and reward offer Campaigns, as long as it does not represent Merchant as a Redeeming Merchant.  Furthermore, County shall at no time be obligated to retrieve any materials (including Promotional Materials) bearing Merchant Marks or Merchant Identification (or cause such materials to be destroyed) in the possession of third parties, or to take-down such materials that were posted or distributed through the Platform or social or digital media prior to the expiration or earlier termination of these Terms and Conditions. 

  1. Promotional Materials.  Merchant may also develop, create, and disseminate Promotional Materials to promote the Program.  Any Promotion Materials developed or created by Merchant shall be subject to County’s prior written approval, which may be withheld in its sole and absolute discretion.  Each party shall own the Promotional Materials each Party creates or develops under these Terms and Conditions, subject to the license grants above regarding the use of the Platform Marks, Merchant Marks, and Merchant Identification, as applicable.

  2. Balance Records and Reports.  After each Redemption Transaction, County shall send Merchant an email to his address on file, setting forth the number of Redemption Credits that will be awarded to Merchant’s Account, as well as the updated Merchant’s Account Balance. Merchant represents and warrants not to provide any User information received from County in connection with such emails to any third party and not to make use of any User information for any purpose other than confirming the Redemption Transaction and Redemption Credits awarded.  County will also email Merchant upon any change to his Merchant Account Balance, informing Merchant of the change made and the updated account balance. 

  3. Other Redeeming Merchant Obligations.  As a Redeeming Merchant, Merchant shall:

    1. market, advertise, promote, and sell Merchant’s goods and services in a manner that reflects favorably at all times on the good name, goodwill, and reputation of County and consistent with good business practice;

    2. maintain a place or places of business in the Territory as required for Merchant to perform its duties under these Terms and Conditions; and

    3. not make any materially misleading or untrue statements concerning County or Merchant’s goods or services, including, by way of illustration and not limitation, any product disparagement or “bait-and-switch” practices.

  4. Other County Obligations.  County shall:

  1. as the sponsor of the Program, at its sole expense, be responsible for (i) selecting and implementing Campaigns; (ii) awarding Users with promotional value to exchange for participating Merchants’ goods and services, in the form of County Points, upon completion of Qualifying Actions, in accordance with the Users’ Terms of Use; (iii) ensuring that the Program and the manner in which it is conducted conforms with all applicable Laws; (iv) marketing, advertising, and promoting the Program; and (v) solely be responsible for receiving, answering, and resolving any User questions regarding the Program, except for any inquiries or claims regarding any goods or services sold or provided by Merchant and amounts charged therefor. 

  1. Representations and Warranties.  Merchant represents and warrants as follows:

    1. It is authorized to enter into and fully its obligations under these Terms and Conditions and that performance of these Terms and Conditions shall not create a breach of any agreement with any third party.

    2. It will fulfill its obligations hereunder in accordance with all applicable Laws.

    3. The exercise of its rights in strict accordance with these Terms and Conditions does not and will not violate, infringe, or misappropriate any rights of a third party, including, by way of illustration and not limitation, third party intellectual property rights and rights of privacy and publicity.

    4. Its goods are of merchantable quality and fit for their intended use and safe for use by their intended age group.

    5. Its standard warranty for its goods or services shall apply to goods or services purchased through a Redemption Transaction.

    6. Its goods and services will be accurately described in in all Promotional Materials. 

  2. Term; Termination.

    1. Term.  The term of these Terms and Conditions commences on the date on which you execute these Terms and Conditions and shall continue until terminated consistent with the provisions described in Section 11(b).

    2. Termination Rights.  

      1. Termination for Convenience.  Notwithstanding anything to the contrary in these Terms and Conditions, either Party may terminate these Terms and Conditions and the appointment of Merchant under Section 3, for any or no reason, at any time upon written notice to the other Party, and said termination shall become effective seven (7) days following the delivery of such notice, except where a shorter period is provided for in these Terms and Conditions.   

      2. County Termination Rights.  In addition to any remedies that may be provided in these Terms and Conditions, County may immediately terminate these Terms and Conditions, upon notice to Merchant, if any of the following occur:

  1. Merchant is in breach of these Terms and Conditions and either the breach cannot be cured or, if the breach can be cured, it is not cured within fourteen (14 days following Merchant’s receipt of notice of such breach;

  2. Merchant becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;

  3. Merchant files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;

  4. Merchant seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts;

  5. Merchant makes or seeks to make a general assignment for the benefit of its creditors; 

  6. Merchant applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;

  7. Merchant fails to provide correct and complete information and documentation as required by the Payment Processor;

  8. County has a reasonable basis to believe that Merchant, at any time before or during the Term, has engaged in, is engaging in, or will engage in any fraudulent conduct or the processing of any fraudulent transactions;

  9. Merchant’s Redemption Transactions were illegal or served illegal purposes;

  10. Merchant violates, infringes, or misappropriates any rights of County or of a third party, including, by way of illustration and not limitation, third party intellectual property rights and rights of privacy and publicity;

  11. Merchant creates or enters into a fictitious transaction or a transaction with fictitious elements of any kind, including, by way of illustration and not limitation, by transacting with itself or its employees or agents using the Application with the intention to unrightfully enjoy the benefits provided by County in the Program; or

  12. Merchant exploits, disrupts, or manipulates, or attempts to exploit, disrupt, or manipulate, the Program.

  1. Merchant Termination Rights.  In addition to any remedies that may be provided in these Terms and Conditions, Merchant may immediately terminate these Terms and Conditions, upon notice to County if County:  

  1. fails to pay any amount when due under these Terms and Conditions and fails to cure such payment default within 30 days following the due date for such payment; or

  2. is in material breach of these Terms and Conditions and either the breach cannot be cured or, if the breach can be cured, it is not cured within 30 days following County’s receipt of notice of such breach.

  1. Effect of Expiration or Termination.  Upon the expiration or earlier termination of these Terms and Conditions:

    1. Merchant shall cease to represent itself as a Redeeming Merchant, and shall otherwise desist from all conduct or representations that might lead the public to believe that Merchant is a Redeeming Merchant; and

    2. Merchant shall promptly return or destroy (pursuant to County’s instructions) all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Confidential Information.

  1. Confidential Information.  All non-public, Confidential, or proprietary information of either Party, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by either Party to the other Party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with these Terms and Conditions is confidential, solely for the use of performing these Terms and Conditions and may not be disclosed or copied unless authorized by the disclosing Party in writing.  Upon the disclosing Party’s request, the receiving Party shall promptly return all documents and other materials received from the disclosing Party.  The Parties shall be entitled to injunctive relief for any violation of this Section.  This Section shall not apply to information that is:

    1. in the public domain other than through breach of this Section;

    2. rightfully known to the receiving Party at the time of disclosure; 

    3. rightfully obtained by the receiving Party on a non-confidential basis from a third party; or

    4. legally compelled to be disclose by the receiving Party (whether by deposition, interrogatory, law, request for documents, subpoena, civil investigative demand or other process or otherwise)

  2. Compliance with Laws.  Merchant shall at all times comply with all Laws that are applicable to the operation of its business, and these Terms and Conditions and its performance hereunder.  Without limiting the generality of the foregoing, Merchant shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under these Terms and Conditions.

  3. Indemnification.  Merchant shall indemnify, hold harmless, and defend County, Colu, and each of their respective employees and agents (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, relating to any claim of a third party or County arising out of or occurring in connection with:

    1. Merchant’s acts or omissions as a Redeeming Merchant, including, by way of illustration and not limitation, breach of any of Merchant’s representations, warranties, covenants, or agreements under these Terms and Conditions;

    2. Merchant’s advertising or representations that warrant performance of Merchant’s goods or services;

    3. Promotional Materials created or developed by Merchant;

    4. any failure by Merchant or its personnel to comply with any applicable Laws;

    5. allegations that Merchant breached its agreement with a third party as a result of or in connection with entering into, performing under, or terminating these Terms and Conditions; 

    6. claims that County’s authorized use of the Merchant Marks or Merchant Identification or the exercise of County’s rights under these Terms and Conditions violates, infringes, or misappropriates the rights of a third party, including, by way of illustration and not limitation, third party intellectual property rights and rights of privacy and publicity;

    7. any rescinded Redemption Transactions described in Section 4(d);      

    8. any claims by User’s or other consumers relating to or arising out of Merchant’s goods or services; or

    9. any claims that Merchant failed to provide the Payment Processor with complete and correct information and documentation as required by Payment Processor     

  4. Limitation of Liability.  EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THESE TERMS AND CONDITIONS, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT:

    1. IS COUNTY OR ANY REPRESENTATIVE OF COUNTY LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS, OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS AND CONDITIONS, REGARDLESS OF:

      1. WHETHER THE DAMAGES WERE FORESEEABLE;

      2. WHETHER OR NOT COUNTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND

      3. THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED.

    2. SHALL COUNTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO MERCHANT UNDER THESE TERMS AND CONDITIONS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $5,000, WHICHEVER IS LESS.

THE FOREGOING LIMITATIONS APPLY EVEN IF MERCHANT’S REMEDIES UNDER THESE TERMS AND CONDITIONS FAIL OF THEIR ESSENTIAL PURPOSE.

  1. Insurance.  For the term of these Terms and Conditions, Merchant shall, at its own expense, maintain and carry insurance in full force and effect that includes, by way of illustration and not limitation, commercial general liability (including product liability) with limits no less than $100,000 for each occurrence and $250,000 in the aggregate with financially sound and reputable insurers.  Upon County’s request, Merchant shall provide County with a certificate of insurance and policy endorsements for all insurance coverage required by this Section 18, and shall not do anything to invalidate such insurance.  Merchant shall provide County with 30 days’ advance written notice in the event of a cancellation or material change in Merchant’s insurance policy.  Except where prohibited by Law, Merchant shall require its insurer to waive all rights of subrogation against County’s insurers, County and the other Indemnified Parties.

  2. Entire Agreement.  These Terms and Conditions, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.

  3. Survival.  Subject to the limitations and other provisions of these Terms and Conditions: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of these Terms and Conditions; and (b) Sections 1, 2, 13(c), 14, 16, 17, and 19-34 of these Terms and Conditions, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms and Conditions.

  4. Notices.  All notices, requests, consents, claims, demands, waivers, and other communications to County under these Terms and Conditions must be in writing and addressed to County at its address set forth below (or to such other address that County may designate from time to time in accordance with this Section).  Unless otherwise agreed herein, all such notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested and postage prepaid).   Notices and other communications under these Terms and Conditions initiated by County shall be sent via E-mail to Merchant’s E-mail address as provided by Merchant to County. 

Notice to County:

San Mateo County, California

Attention: Danielle Lee Assistant Director, Office of Sustainability [email protected]

 

  1. Severability.  If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.

  2. Amendments. No amendment to these Terms and Conditions is effective unless it is in writing and signed by an authorized representative of each Party.

  3. Waiver.  No waiver by any Party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by the Party so waiving.  Except as otherwise set forth in these Terms and Conditions, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

  4. Cumulative Remedies.  All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.

  5. Assignment.  Merchant shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms and Conditions without the prior written consent of County.  Any purported assignment or delegation in violation of this Section shall be null and void.  No assignment or delegation shall relieve Merchant of any of its obligations hereunder.  County may at any time assign, transfer, or subcontract any or all of its rights or obligations under these Terms and Conditions without Merchant’s prior written consent.

  6. Successors and Assigns.  These Terms and Conditions are binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

  7. No Third-Party Beneficiaries.  Subject to the next sentence , these Terms and Conditions benefit solely the Parties to and their respective permitted successors and assigns and nothing in these Terms and Conditions, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions. The Parties hereby designate Indemnified Parties as third-party beneficiaries of Section 16 with the right to enforce that provision.

  8. Choice of Law.  These Terms and Conditions, including all exhibits, schedules, attachments, and appendices attached to these Terms and Conditions and thereto, and all matters arising out of or relating to  these Terms and Conditions, are governed by, and construed in accordance with, the laws of the State of California, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Ohio.

  9. Choice of Forum.  Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these Terms and Conditions, including all exhibits, schedules, attachments, and appendices attached to these Terms and Conditions, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the State or federal courts sitting in San Mateo County, California.  Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the state and federal courts sitting in San Mateo County, California.  Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. 

  10. Force Majeure.  No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions (except for any obligations to make payments to the other Party), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control (which events may include natural disasters, embargoes, explosions, riots, wars or acts of invasion or terrorism, requirements of Law, national or regional emergency, disease, pandemic, strikes, labor stoppages, or slowdowns or shortage of adequate power or transportation) (each, a “Force Majeure Event”).  A Party shall give the other Party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event.  The Impacted Party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized, and resume full performance under these Terms and Conditions.

  11. Relationship of the Parties.  The Parties are independent contractors and nothing in these Terms and Conditions shall be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between County and Merchant.  Neither Party, by virtue of these Terms and Conditions, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.  Each Party assumes responsibility for the actions of their personnel under these Terms and Conditions and will be solely responsible for their supervision, daily direction, and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under these Terms and Conditions will be accomplished.  Except as provided otherwise in these Terms and Conditions, Merchant has the sole discretion to determine Merchant’s methods of operation,  Merchant’s accounting practices, the types and amounts of insurance Merchant carries, Merchant’s personnel practices, Merchant’s advertising and promotion, Merchant’s customers, and Merchant’s service areas and methods.


The undersigned, on behalf of the entity listed below, agrees to comply with and be bound by these Terms and Conditions


Legal Name of Entity:

_____________________________________________

DBA (if any): _________________________________

Type of Entity: ________________________________

Signature: ____________________________________

Print Name and Title:___________________________

Address of Entity: _____________________________

Date:________________________________________