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601 N. Parkcenter Drive, Suite 102
Santa Ana, CA 92705
(949) 525-9205
info@suppliergateway.com
Enhanced Digital Certification Terms and Conditions
SupplierGATEWAY LLC (SupplierGATEWAY) provides voluntary certification to businesses qualifying for its diversity programs (collectively, ” Enhanced Digital Certification” or “EDC”), according to the qualifications adopted by SupplierGATEWAY and set forth in these Terms and Conditions (“Agreement” or “Contract”).
As an applicant for Enhanced Digital Certification (“EDC”), you, the applicant, on behalf of yourself as well as your company, heirs, agents, successors, and assigns, (“participant(s)”) acknowledge that you have read, understand, and agree to be bound by all terms and conditions set forth in this Agreement and included by reference.
By submitting an application for EDC to SupplierGATEWAY, you authorize the disclosure of the required documentation listed herein and agree to abide by all terms and conditions of this Agreement, as well as any agreements that SupplierGATEWAY is currently bound by or will be bound by in the future. You acknowledge that this Agreement is legally binding under the laws of the United States of America and upon submission you have entered into a legally enforceable Contract (“click through contract”) with SupplierGATEWAY, as though a physical signature was provided. If you do not agree to the terms and conditions of this Agreement, you are expressly prohibited from applying for or accepting EDC through SupplierGATEWAY.
SupplierGATEWAY may, from time to time, within our sole and absolute discretion, modify, limit, change, discontinue, or replace this Agreement or any portion thereof. It is your responsibility to review this agreement WHERE PUBLISHED ON www.suppliergateway.com/edc on a regular basis to keep yourself informed of any modifications. In the event we modify, limit, change, or replace all or any portion of this Agreement, NOTIFICATION is DEEMED made immediately upon publication of THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT ON THE SupplierGATEWAY website (www.suppliergateway.com/edc), and your continued use and/or promotion of your voluntary participation in SupplierGATEWAY’s® EDC program(s) thereafter, constitute(s) your manifestation of assent to the modification, limitation, change, or replacement. This Agreement is effective as of the date your application is submitted to SupplierGATEWAY or your payment is processed.
The term of this Contract is one (1) year (365 days) from the date of the electronic submission of this Agreement (Contract) or the date that the annual certification fees are successfully processed.
1. REPRESENTATIONS AND WARRANTIES.
Electronically submitting this Agreement constitutes your willingness to enter into this Contract, and representation and warranty by You that You are at least eighteen (18) years of age; have the right, power, legal capacity and appropriate authority to contract on behalf of the company; and are an authorized agent of the company and the owner(s) listed on company documents.
SupplierGATEWAY has not, is not, and will not make any guarantees, promises, or warranties that your company will gain financial benefit or obtain participatory access in any diversity or procurement program as a result of your voluntary participation in the SupplierGATEWAY EDC program(s).
SupplierGATEWAY is not owned or affiliated with, and does not sponsor or endorse any particular company applying for voluntary participation in the SupplierGATEWAY EDC programs. Certification of a business by SupplierGATEWAY is based exclusively on the company’s qualifications for Certification and its conduct, as outlined in this application. SupplierGATEWAY makes no representations regarding the quality, safety, morality, or legality of any aspect of the applicant company’s business, products, or services.
2. APPLICATION AND APPROPRIATE USES.
The electronic submission of this Agreement is Your application to voluntarily participate in one or more of SupplierGATEWAY’s® EDC programs. SupplierGATEWAY does not guarantee or promise approval of your EDC application(s) and may deny admission to applicants who fail to meet the certification requirements, complete the application process, or fulfill the responsibilities as outlined by this Agreement. You acknowledge that you submit this application at your own risk and that, in the event that you are not admitted to the EDC program, you remain legally bound by the terms and conditions of this Agreement with SupplierGATEWAY.
(A) REQUIREMENTS
Application to the SupplierGATEWAY EDC program requires the following:
(1) Electronic signature and submission of this online application, binding you to the terms of this Agreement;
(2) Provision of the required documentation outlined in Section 3. “REQUIRED SUPPORTING DOCUMENTATION” of this Agreement;
(3) Satisfactory evaluation and processing by SupplierGATEWAY of this electronically submitted Application, required supporting documentation, and fee payment when applicable;
(4) Biometric Identification of the authorized person submitting this Application;
(5) A valid Employer Identification Number (EIN) or Tax Identification Number (TIN)
All information provided throughout the application process must be consistent. Failure to provide consistent information throughout the application process will result in the denial of your application.
(B) ACCURATE INFORMATION
You agree to maintain accurate information by providing notice to SupplierGATEWAY of any material change in Your Company’s structure within five (5) business days. Notification must be sent via email to edc@suppliergateway.com. Material changes are defined as:
(1) a change in the cumulative or individual ownership percentage(s) relied upon to achieve the 51% ownership interest majority required for voluntary participation in the SupplierGATEWAY EDC program(s);
(2) obtaining a “NOT IN GOOD STANDING” status from the Applicable Secretary of State, for companies registered with the Secretary of State;
If, for whatever reason, You fail to notify SupplierGATEWAY within five (5) business days of any material change, as defined above, such failure will constitute a material breach of this Contract and SupplierGATEWAY, upon learning of the material change, will suspend your EDC participation.
You agree that SupplierGATEWAY may use and rely on any information provided by You for all purposes related to Your voluntary participation in the SupplierGATEWAY EDC program(s). If You provide any information that is inaccurate, not current, false, misleading, or incomplete; or if SupplierGATEWAY has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading, or incomplete; SupplierGATEWAY has the absolute right to terminate your voluntary participation in the SupplierGATEWAY EDC program(s).
Additionally, you hereby acknowledge and agree that you are prohibited from assigning your rights and obligations under this Agreement. We may assign our rights and obligations under this Agreement at any time, including but not limited to in a sale of or other transaction involving the EDC program(s).
SupplierGATEWAY reserves the right, in accordance with its due process policies, to terminate your voluntary participation in the SupplierGATEWAY EDC program(s) if your participation results in, or is the subject of, legal action or threatened legal action, against SupplierGATEWAY or any of its affiliates or partners, and to terminate without consideration for whether the legal action or threatened legal action is ultimately determined to be with or without merit.
(i) Accurate Information – Due Process
Material changes in your company’s structure must be reported to SupplierGATEWAY within five (5) business days of the occurrence of such changes. Notification must be made via email to edc@suppliergateway.com. Material changes are defined above. Failure to report any of the above-mentioned material changes constitutes a breach of Contract and will result in suspension of Your voluntary-participation SupplierGATEWAY EDC program(s). Upon independent discovery of the material change, SupplierGATEWAY will advise you of your newly suspended status. Suspension will become effective on the date material change occurred. You will be required to cease-and-desist all promotion and usage of SupplierGATEWAY EDC program(s) except in a factually accurate reference to your past and current status with SupplierGATEWAY; and remain in effect unless and until You take one of the following actions within fourteen (14) days after SupplierGATEWAY notifies you of your newly suspended status:
(1) Submit a professionally written Appeal letter by the company’s point-of-contact or owner(s), as recognized by SupplierGATEWAY, sent via email to edc@suppliergateway.com explaining the material change.
(2) Complete a new online application for voluntary participation in SupplierGATEWAY EDC program(s) (at no additional cost).
Failure to complete the due process procedures for material changes within fourteen (14) days of the email notification sent by SupplierGATEWAY advising of the discovery of the material change will result in termination of your EDC, effective on the 15th day after the SupplierGATEWAY email notification. You will be required to stop all promotion and usage of SupplierGATEWAY materials stating your current-participation. Such breaches of contract causing termination of your voluntary participation in the SupplierGATEWAY EDC program(s) constitutes a forfeiture of your voluntary participation in the EDC program(s) and affords you no right to refund or credit for lost fees.
(C.) QUALIFICATIONS
Minority Owned EDC (USA)
To qualify for a Minority Owned EDC, 51% or more of the total ownership interest must be held by one or more minority individuals, and whose management and daily operations are controlled by one or more minority individuals. This ownership percentage must be indicated on the company’s business registration filing, or on signed articles of organization or articles of formation (in the case of an LLC), or in stock ownership documentation for the organization (in the case of a corporation), or, if the company’s business registration is filed with the Secretary of State or equivalent authority in which the business is organized, on a sworn affidavit(s) submitted to SupplierGATEWAY .
Minorities are considered members of “Socially Disadvantaged Groups,” as defined by the Small Business Act:
Black Americans (African Descent). Hispanic Americans (persons with origins from Spanish or Portuguese speaking countries). Native Americans; (American Indians, Eskimos, Aleuts, or Native Hawaiians). Asian Pacific Americans (persons with origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, The Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga, Kiribati, Tuvalu, or Nauru). Subcontinent Asian Americans (persons with origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands or Nepal).
Membership within one of these “Socially Disadvantaged Groups” is determined by self-declaration.
Woman Owned EDC (USA)
To qualify for a Woman Owned EDC, 51% or more of the total ownership interest must be held by one or more women, and whose management and daily business operations are controlled by one or more women. This ownership percentage must be indicated on the company’s business registration filing, or on signed articles of organization or articles of formation (in the case of an LLC), or in stock ownership documentation for the organization (in the case of a corporation), or, if the company’s business registration is filed with the Secretary of State or equivalent authority in which the business is organized, on a sworn affidavit(s) submitted to SupplierGATEWAY .
Gender is determined by the sex indicated on the government issued identification provided in accordance with the requirements outlined in this Agreement.
Disability Owned EDC (USA)
To qualify for a Disability Owned EDC, 51% or more of the total ownership interest must be held by one or more persons with a disability, and whose management and daily business operations are controlled by one or more persons with a disability. This ownership percentage must be indicated on the company’s business registration filing, or on signed articles of organization or articles of formation (in the case of an LLC), or in stock ownership documentation for the organization (in the case of a corporation), or, if the company’s business registration is filed with the Secretary of State or equivalent authority in which the business is organized, on a sworn affidavit(s) submitted to SupplierGATEWAY .
Gender is determined by the sex indicated on the government issued identification provided in accordance with the requirements outlined in this Agreement.
LGBT Owned EDC (USA)
To qualify for an LGBT Owned EDC, 51% or more of the total ownership interest must be held by a lesbian, gay, bisexual, or transgender person or persons and whose management and daily operations are controlled by one or more of those individuals. This ownership percentage must be indicated on the company’s business registration filing, or on signed articles of organization or articles of formation (in the case of an LLC), or in stock ownership documentation for the organization (in the case of a corporation), or, if the company’s business registration is filed with the Secretary of State or equivalent authority in which the business is organized, on a sworn affidavit(s) submitted to SupplierGATEWAY .
Gender is determined by the sex indicated on the government issued identification provided in accordance with the requirements outlined in this Agreement.
SupplierGATEWAY EDC includes SBA Small Business Self Certification for any of the following classes:
Small Business, Small Disadvantaged Business, Woman Owned Small Business, Veteran Owned Small Business, Service Disabled Veteran Owned Small Business.
US Government’s Small Business size determination is based on the US Small Business Administration guidelines and 13-C.F.R.-121. Under 15 U.S.C. § 645(d), any concern or person who misrepresents its size or socioeconomic status shall be (1) punished by a fine, imprisonment, or both; (2) subject to administrative remedies; and (3) ineligible for participation in programs conducted under the authority of the Small Business Act. All applicants shall be required to certify that all information provided on the application form and in attachments thereto are true and complete to the best of the applicants knowledge and belief.
Small Business Certification (USA)
To qualify for Small Business EDC, the organization cannot exceed the expressed maximum number of employees allowed or maximum annual receipts in millions of dollars allowed for the company and its affiliates identified by North American Industry Classification System (NAICS) codes as disclosed at the website: https://www.sba.gov/document/support–table-size-standards
Small Disadvantaged Business (USA)
To qualify for Small Disadvantaged Owned Business EDC the organization must be: Small, according to SBA’s size standards, must be at least 51% owned and controlled by one or more disadvantaged persons, and the disadvantaged person or persons must be socially and economically disadvantaged.
Woman Owned Small Business (USA)
To qualify for Woman Owned Small Business EDC the organization must be: Small, according to SBA’s size standards, must be at least 51% owned and controlled by one or more women, and primarily managed by one or more women. The women must be U.S. citizens.
Veteran Owned Small Business
To qualify for Veteran Owned Small Owned Business EDC the organization must be: Small, according to SBA’s size standards. One or more Veterans must unconditionally own 51% of the VOSB, control the management and daily operations of the VOSB and must hold the highest officer position in the VOSB. [Must meet all eligibility requirements in Title 13 Part 125 Subpart B of the Code of Federal Regulations
Service Disabled Veteran Owned Business
To qualify for Service Disabled Veteran Owned Small Business EDC the organization must be: Small, according to SBA’s size standards, must have a service-connected disability that has been determined by the Department of Veterans Affairs or Department of Defense. One or more Service-Disabled Veterans must unconditionally own 51% of the SDVOSB, control the management and daily operations of the SDVOSB and must hold the highest officer position in the SDVOSB. [Must meet all eligibility requirements in Title 13 Part 125 Subpart B of the Code of Federal Regulations.
2. LLC, C or S Corporations – One (1) copy of the business’ registration / existence in the applicable state in which the business is registered including evidence of ownership percentage for the qualifying applicant(s). Sole Proprietorships: Schedule C of a recent Federal Tax Return showing the business name, or; Assumed Name / Doing-Business-As filing from an applicable jurisdiction, or; IRS Form SS4 for Sole Proprietorships in operation for less that 12 months.
3. One (1) completed EDC application form, electronically signed by an authorized signatory of the company.
4. PAYMENTS.
A. Initial Payment.
Successful processing by SupplierGATEWAY of your payment constitutes acknowledgement of your application to voluntarily participate in the SupplierGATEWAY EDC program(s). The successful processing of payment by SupplierGATEWAY EDCs, Inc. will serve as entrance into Contract between You and SupplierGATEWAY, and the appearance of credit / debit card charges on Your credit card / debit card statement will serve as Your receipt for the transaction. Payment should be accompanied by the submission of this Agreement to facilitate the initial stages of processing your Application for voluntary participation in the SupplierGATEWAY EDC program(s).
In consideration for processing Your application for voluntary participation in the SupplierGATEWAY EDC program(s), You agree that all fees paid to and processed by SupplierGATEWAY EDCs, Inc. are immediately the property of SupplierGATEWAY and are non-refundable, even if You fail to complete the application process or are denied Certification by the SupplierGATEWAY EDC program(s).
Applicants that claim the electronic application and payment for voluntary participation in the SupplierGATEWAY EDC program(s) were unauthorized are not eligible for any refund or return of fees paid and processed by SupplierGATEWAY. It is the responsibility of all debit and credit cardholders to safe-guard their information and therefore it is not the responsibility of SupplierGATEWAY nor the liability of SupplierGATEWAY for an individual or company’s negligence as a debit and credit cardholder.
B. Denied Certifications
If You fail to complete the application process or are denied Certification by the SupplierGATEWAY EDC program, SupplierGATEWAY may, in its sole discretion, refund some or all of the application fee.
Every applicant for voluntary-participation in the SupplierGATEWAY EDC program(s) may submit their required supporting documentation in .pdf format only one (1) time for review. SupplierGATEWAY must receive this one (1) and only submission of required supporting documentation online in the EDC Application Form. Upon receipt of Your one (1) and only submission in .pdf format, SupplierGATEWAY will notify You via email (i.e., “Certification Status” email), of your company’s acceptance (i.e., “Certification Issued” email) into a SupplierGATEWAY EDC program(s) or any errors, omissions and / or deficiencies in your application. Required Supporting Documentation that contains any errors, omissions, and / or deficiencies in the required supporting documentation will be deemed invalid and result in the denial of your application to voluntarily participate in a SupplierGATEWAY EDC program(s). You can appeal this denial, free of charge, by following the procedures detailed in Section “5. DENIED APPLICATION.” of this contract.
(A) FORFEITED APPLICATIONS
Applications for voluntary participation in the SupplierGATEWAY EDC program(s) will be forfeited with no right to refund or credit for the fees paid to process this electronically submitted Application in any of the following circumstances:
(1) applicant’s submission of supporting documentation was not received by SupplierGATEWAY within fourteen (14) days of the date the Application was electronically submitted; (2) applicant failed to appeal the denial of its application for voluntary participation in the SupplierGATEWAY EDC program(s) within fourteen (14) days of the date of denial.
Forfeited applications result in the immediate termination of the application process, the non-refundable forfeiture of all fees paid in connection with the application, and the refusal of all additional documentation submissions in connection with that applicant. SupplierGATEWAY .
(B) DENIED APPLICATION / APPEAL PROCESS
Upon denial of Your application for voluntary-participation in the SupplierGATEWAY EDC program(s), You will have fourteen (14) days to appeal in accordance with the following procedures:
(1) Provide an professionally written Appeal Letter stating your understanding of the reason(s) for application denial; and Re-Submit new required supporting documentation including a newly signed, dated, and notarized sworn affidavit for each program in which you seek to participate.
Applications appealed and subsequently denied by SupplierGATEWAY are immediately terminated, with no right to refund or credit.
(C) CERTIFICATION ENROLLMENT AND EXPIRATION DATE
The enrollment or effective date of Your voluntarily-participation in the SupplierGATEWAY EDC program(s) will be the date on which SupplierGATEWAY completes the processing of Your application for voluntary participation in the SupplierGATEWAY EDC program(s), including the processing of your payment.
The SupplierGATEWAY EDC expires 365 calendar days from the date this electronic Application is submitted and payment is processed. During a leap year, the expiration date will not exceed 366 calendar days from the date of this electronic submission.
6. AUDIT.
You agree that SupplierGATEWAY may audit your company at any time within the term of this Contract by requiring all persons relied on to achieve the 51% ownership interest requirement to execute a SupplierGATEWAY sworn affidavit. You will be advised of an audit via an “Audit Notification Email” from SupplierGATEWAY.
The newly executed sworn affidavit must be submitted online via the SupplierGATEWAY system within fourteen (14) days of the date the Audit Notification Email was sent. SupplierGATEWAY audit procedures adhere to the same certification application procedures as outlined in Section “3. REQUIRED SUPPORTING DOCUMENTATION.” Failure to comply with the SupplierGATEWAY audit or failure to satisfy the certification application procedures as outlined in Section “3. REQUIRED SUPPORTING DOCUMENTATION” will constitute a breach of this Contract and will be addressed in accordance with the due process policies of SupplierGATEWAY , as set forth herein.
(i) Audit- Due Process
Failure to complete the due process procedures of the audit within fourteen (14) days of the date SupplierGATEWAY sent the Audit Email Notification will constitute a breach of Contract and will result in the termination of Your voluntary-participation in the SupplierGATEWAY EDC program(s). Termination will be effective on the 15th day after the date the Audit Email Notification was sent by SupplierGATEWAY . Such breaches of contract causing termination of your voluntary participation in the SupplierGATEWAY EDC program(s) constitutes a forfeiture of your voluntary participation in the EDC program(s), and affords you no right to refund or credit for lost fees. You will be required to cease-and-desist all promotion and usage of SupplierGATEWAY EDC program(s) except in a factually accurate reference to your past and current status with SupplierGATEWAY.
7. PROFESSIONAL CODE OF CONDUCT AND ETHICS.
You agree that your voluntary participation in the SupplierGATEWAY EDC program(s) is subject to the SupplierGATEWAY professional code of conduct policy, which prohibits:
You agree that violations of the Professional Code of Conduct constitute a breach of this Contract and will be addressed in accordance with the audit, due process, professional code of conduct policies, and / or slander / libel due process policies of SupplierGATEWAY as set forth herein.
You agree to conduct Your business activities in an ethical manner and in accordance with the criminal laws of the United States of America. In the event You or Your company are convicted of a crime related to the promotion of Your voluntary participation in the SupplierGATEWAY EDC program(s), the conviction will constitute a breach of contract and will be addressed in accordance with the due process policies of SupplierGATEWAY as set forth herein.
(i) Professional Code of Conduct and Ethics- Due Process
In the event You or Your company is convicted of a crime that is either directly or indirectly related to the promotion of Your voluntary participation in the SupplierGATEWAY EDC program(s), You are required to notify SupplierGATEWAY via email within five (5) days (sent to edc@suppliergateway.com ), and providing the following information regarding the criminal conviction:
Failure to notify SupplierGATEWAY within five (5) days of a criminal conviction that was directly or indirectly related to Your promotion of Your voluntary participation in the SupplierGATEWAY EDC program(s) will result in the immediate termination of Your company’s EDC, effective on the 6th day after the date of criminal conviction. You will be required to cease-and-desist all promotion and usage of SupplierGATEWAY EDC program(s) except in a factually accurate reference to your past and current status with SupplierGATEWAY.
(A) SLANDER AND LIBEL
Any slanderous or libelous communications made by You shall constitute a breach of this Contract and may involve civil actions by SupplierGATEWAY or any of its affiliates or partners against You and Your company. In the event SupplierGATEWAY or any of its affiliates or partners learns of any slanderous or libelous communications made by you, an email entitled “Cease and Desist” will be sent from SupplierGATEWAY to the company point-of-contact recognized by SupplierGATEWAY . Failure to immediately adhere to the cease-and-desist email will result in the suspension of You and Your company from voluntary participation in the SupplierGATEWAY EDC program(s) as civil legal remedies are pursued. You will be required to cease-and-desist all promotion and usage of SupplierGATEWAY EDC program(s) except in a factually accurate reference to your past and current status with SupplierGATEWAY. Subsequently, on the 365th day after the date this Application was electronically submitted, Your voluntary participation in the SupplierGATEWAY EDC program(s) will expire.
(B) USE OF INTELLECTUAL PROPERTY
You agree that SupplierGATEWAY holds all rights, title, and interest in all SupplierGATEWAY publicity and intellectual property, including other rights related to intangible property, unless otherwise indicated. You agree that SupplierGATEWAY materials are the intellectual property of SupplierGATEWAY and your use, assignment, and / or possession of SupplierGATEWAY materials may be terminated in accordance with the SupplierGATEWAY due process policies, as set forth herein.
You agree that the SupplierGATEWAY Certification Number assigned to you upon Certification is the intellectual property of SupplierGATEWAY. You agree that the listing of Your voluntary participation in the SupplierGATEWAY EDC program(s) will be displayed on the SupplierGATEWAY portal system and that SupplierGATEWAY, is the issuing agency and sole party responsible for the content maintained on the SupplierGATEWAY website as it relates to You and Your company’s voluntary participation in the SupplierGATEWAY EDC program(s).
(i) Use of Intellectual Property- Due Process
Upon termination of Your voluntary participation in the SupplierGATEWAY EDC program(s), You are required to cease-and-desist all promotion of Your voluntary participation in SupplierGATEWAY EDC program(s) except in a factually accurate reference to your past and current status with SupplierGATEWAY.
8. PRIVACY AND COMMUNICATION.
Your voluntary participation in the SupplierGATEWAY EDC program(s) will be publicly disclosed on the SupplierGATEWAY portal system. Information disclosed will include (1) the enrollment date; (2) expiration date; (3) company full legal name; (4) company assumed name or trademark name; (5) assigned SupplierGATEWAY Certification Number; and (6) current status as participant in the EDC program(s).
You agree to abide by the due process policies of SupplierGATEWAY and acknowledge that the status listed in the SupplierGATEWAY portal system may include “SUSPENDED” or “TERMINATED” as of the date such status was issued in accordance with the due process policies of SupplierGATEWAY .
You agree and consent that telephone conversations through wireline, landline, cellular, and / or electronic communication media may be recorded by SupplierGATEWAY for “quality control” measures without prior verbal notification or the presence of a “beep tone.”
Recognized forms of communication between you and SupplierGATEWAY are to be (1) email communication sent to edc@suppliergateway.com or other authorized email address of SupplierGATEWAY ; (2) telephone communication using the phone number of (949) 525-5205. The preferred communication method with SupplierGATEWAY is email to edc@suppliergateway.com.
You agree and consent that SupplierGATEWAY reserves the right at all times to disclose any information provided by you to SupplierGATEWAY as SupplierGATEWAY deems necessary to satisfy any chargeback filing, applicable law, regulation, legal process or governmental request. You acknowledge and agree that SupplierGATEWAY reserves the right to edit, refuse to post, or to remove any information or materials from its website relating to your voluntary participation in the SupplierGATEWAY EDC program(s), in whole or in part, at the sole discretion of SupplierGATEWAY .
(A) EXCESSIVE COMMUNICATION AND ABUSE POLICY
SupplierGATEWAY maintains an “Excessive Communication and Abuse Policy” applicable to any and all prospects, applicants, and participants voluntarily participating in the SupplierGATEWAY EDC program(s). Actions constituting violation of the Excessive Communication and Abuse Policy are as follows:
Violation of the aforementioned Excessive Communication and Abuse Policy by a prospect, applicant, or voluntary participant in the SupplierGATEWAY EDC program(s) will result in issuance of a “warning” or “advisory” to the prospect, applicant, or participant via email from SupplierGATEWAY. Continued excessive communication and abuse will result in the termination of this Contract by SupplierGATEWAY in accordance with the its process policies, as set forth herein.
(i) Excessive Communication and Abuse Policy- Due Process
SupplierGATEWAY exercises due process in response to violations of this Agreement through Excessive Communication and Abuse. SupplierGATEWAY will email a Report to the point-of-contact, outlining Your Company’s violations of the SupplierGATEWAY Excessive Communication and Abuse Policy. You will be given the opportunity to respond in a professionally written letter stating Your understanding of our Excessive Communication and Abuse Policy and why You violated the Excessive Communication and Abuse policy. Your explanatory letter must be sent via email to edc@suppliergateway.com within 5-days of the date the Report from SupplierGATEWAY was sent. Upon receipt of your professionally written letter, SupplierGATEWAY will attempt to address Your issues / concerns for a final time via email. During this period of disciplinary conduct, SupplierGATEWAY reserves the right to suspend communication between You, Your agents and SupplierGATEWAY.
Any second violation of the SupplierGATEWAY Excessive Communication and Abuse policy will result in the termination of Your voluntary participation in the SupplierGATEWAY EDC program(s). You will be required to cease-and-desist all promotion and usage of SupplierGATEWAY EDC program(s) except in a factually accurate reference to your past and current status with SupplierGATEWAY. Such breaches of contract causing termination of your voluntary participation in the SupplierGATEWAY EDC program(s) constitutes a forfeiture of your voluntary participation in the EDC program(s) and affords you no right to refund or credit for lost fees.
9. LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OWNER, OUR OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, INDEPENDENT CONTRACTORS, SERVICE PROVIDERS, OR CONSULTANTS, OR ANY OF THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AND AGENTS, WILL NOT BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF SupplierGATEWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event shall SupplierGATEWAY its partners, affiliates, or advertisers be liable to You or any other person for any damages, including for loss of profit or goodwill, for any matter, whether such liability is asserted on any breach of this Contract or its incorporated agreements and policies for any loss in profits or revenues, a lack of financial benefit, or your inability to gain participatory access in any diversity or procurement program, even if SupplierGATEWAY has been advised of the possibility of such damages.
SupplierGATEWAY liability is limited to the total amount paid by You for this application to voluntarily participate in the SupplierGATEWAY EDC program(s).
10. DISCLAIMER OF WARRANTIES.
SupplierGATEWAY expressly disclaims all warranties and guarantees of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, non-infringement, or assurities that voluntary participation in the SupplierGATEWAY EDC program(s) will produce any monetary gain or participatory access in any diversity or procurement program.
11. INDEMNIFICATION.
You agree to defend, indemnify and hold harmless SupplierGATEWAY (“SupplierGATEWAY LLC.”) and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding or demand related to the use or promotion of your voluntary participation in the SupplierGATEWAY EDC program(s) by you or your company or affiliates.
In addition, You agree to indemnify and hold SupplierGATEWAY harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You. This indemnification is in addition to any indemnification required of You as outlined elsewhere in this Agreement.
In the event that SupplierGATEWAY or any of its affiliates or partners, is notified of a pending law suit, receives notice of the filing of a law suit, or learns that SupplierGATEWAY or any of its affiliates or partners is the subject or legal action or threatened legal action, SupplierGATEWAY may seek a written confirmation from You concerning Your obligation to indemnify SupplierGATEWAY . SupplierGATEWAY will send the “Indemnification Request” via email to your Company point-of-contact requesting this confirmation. The Indemnification Request email is deemed to have been received by You (through your Company’s point-of-contact) within five (5) days of the date it was sent by SupplierGATEWAY .
Written confirmation of indemnification must be received by SupplierGATEWAY via email (at edc@suppliergateway.com) within ten (10) days after the SupplierGATEWAY sent the Indemnification Request email to Your company’s point-of-contact. The written confirmation must be signed by any person who completed a SupplierGATEWAY EDC application used in the computation of the 51% majority ownership interest requirement for voluntary participation in the SupplierGATEWAY EDC program(s). In addition to any other remedies available to the SupplierGATEWAY, failure to respond to the indemnification request or failure to provide this written confirmation will result in the suspension of Your Company’s voluntary participation in the SupplierGATEWAY EDC program(s). Suspension will be effective beginning the 11th day after the Indemnification Request email notification was sent by SupplierGATEWAY; You will be required to cease-and-desist all promotion and usage of SupplierGATEWAY EDC program(s) except in a factually accurate reference to your past and current status with SupplierGATEWAY. Any suspended status shall remain in effect unless and until SupplierGATEWAY receives written confirmation, signed by an appropriate person as outlined above. On the 365th day after the date this Application was electronically submitted (or your renewal payment was processed), Your voluntary participation in the SupplierGATEWAY EDC program(s) will expire.
You agree that SupplierGATEWAY shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify SupplierGATEWAY of any such claim promptly, in writing, through U.S. Postal Service Certified Mail at SupplierGATEWAY 601 N. Parkcenter Drive, Suite 102, Santa Ana CA 92705, and allow SupplierGATEWAY to control the proceedings. You agree to cooperate fully with SupplierGATEWAY during such proceedings.
12. DISPUTE RESOLUTION.
You understand and agree that SupplierGATEWAY is located in the State of California for all legal and non-legal purposes. Therefore, this Agreement will be interpreted under and governed by the laws of the State of California without giving effect to any conflicts of laws principles. You agree that any claim or dispute that you may have against us arising out of or in relation to this Agreement will be exclusively resolved through arbitration.
The failure of SupplierGATEWAY to seek relief for your breach of any duty under this Agreement or otherwise will not waive the right of SupplierGATEWAY to seek relief for any subsequent breach or claim.
Any controversy or claim arising out of or relating to this Contract, or the breach thereof, shall be settled with binding arbitration administered by the American Arbitration Association (AAA) in accordance with its Commercial Arbitration Rules under the Claims Programs. You agree to waive all rights to a jury trial and All claims will be administered by “desk” arbitration, allowing only for the submission of documents. Judgment on the award rendered by the arbitrator(s) may be entered in any court with jurisdiction.
You agree to pay SupplierGATEWAY administrative fees in the amount of $150 per hour, in addition to legal expenses, upon initiation of a legal action against SupplierGATEWAY. You agree that in the event you prevail in full on your arbitration claim that the arbitrator may, but is not required to order a refund of any fees paid to SupplierGATEWAY but in no event will SupplierGATEWAY be required to pay any portion of the arbitration fees.
YOU AND SUPPLIERGATEWAY AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OR PROMOTION OF YOUR VOLUNTARY PARTICIPATION IN THE SUPPLIERGATEWAY BUSINESS CERTIFICATION PROGRAM(S); INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT, EXCEPT THAT OWNER RESERVES THE RIGHT TO ELECT AT ITS SOLE DISCRETION TO PURSUE ANY ACTION ARISING OUT OF COPYRIGHT AND/OR TRADEMARK INFRINGEMENT IN COURT INSTEAD OF THROUGH ARBITRATION.
13. NOTICES.
You agree that all notices (except for notices concerning breach of this Contract) from SupplierGATEWAY to You may be posted on the SupplierGATEWAY portal system. Notices concerning breach of Contract will be sent to either the email address provided in this electronically submitted Application or to the point-of-contact’s email address, as maintained on file with SupplierGATEWAY. In either case, delivery of all notices shall be deemed to have been made five (5) days after the date sent.
Notices from You to SupplierGATEWAY must be sent by email to edc@suppliergateway.com.
14. HEADINGS.
The headings in this Contract are descriptive only and in the event of a conflict between a heading and the underlying terms of this Contract, the terms of this Contract shall control.
15. ENTIRE AGREEMENT.
You agree that this Agreement, including policies and agreements referenced herein, constitutes the complete and entire Agreement (Contract) between You and SupplierGATEWAY regarding Your voluntary participation in the SupplierGATEWAY EDC program(s). You understand and agree that there are no further understandings, agreements, or representations with respect to your relationship with SupplierGATEWAY that are not specified in this Agreement. You understand and agree that any additional provisions that may appear in any communication from you will not bind us.
16. SEVERABILITY.
You agree that the terms of this Contract are severable. If any part of this Contract is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with the applicable law as closely as possible, in line with the original intention of both parties to the Contract. The American Arbitration Association will interpret the contract in accordance with its Commercial Arbitration Rules under the Claims Programs. All claims will be administered by “desk” arbitration, allowing for submission of documents only, and judgment on the award rendered by the arbitrator(s) may be entered in any court with jurisdiction. The remaining terms and conditions of the Contract (not deemed unenforceable) will remain in full force and effect.
17. WAIVER.
The failure of SupplierGATEWAY to enforce any of the provisions within this Contract or its incorporated agreements and policies against You or others shall not be construed as a waiver of the right of SupplierGATEWAY thereafter to enforce such provisions. You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless such waiver or consent is in writing and signed by the party to be bound.
18. FORCE MAJEURE.
SupplierGATEWAY (“SupplierGATEWAY LLC”), will make every effort to keep the SupplierGATEWAY portal system operational. However, certain difficulties and other factors outside of its control, may from time to time, result in temporary service interruptions. You agree not to hold SupplierGATEWAY liable for any of the consequences of such interruptions. Access to the SupplierGATEWAY portal system are provided at the sole discretion of the website owner(s).
19. CLAIM LIMITATIONS.
OWNER AND YOU BOTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT A CAUSE OF ACTION WITHIN ONE (1) YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.
YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST OWNER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
20. SURVIVAL.
Sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21 shall survive any termination or cancellation of this Contract.
21. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement/Contract, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Contract, except as expressly provided in this Contract.
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