Last updated on April 20, 2021
If you would like to see past versions of the ETW Customer Agreement, please contact us at firstname.lastname@example.org and we would be happy to provide you with a copy of any prior version.
Applicability of this customer agreement
Execute to Win, LLC (“ETW”) provides certain professional services, such as installation, training and custom workshop services (collectively, the “Professional Services”) and web-based management services (“ETW Platform”), which Professional Services and ETW Platform are purchased from ETW by a customer (the “Customer”) for use by that Customer’s authorized users (each a “User” and collectively, the “Users”). Users may or may not be employees of the Customer. This Customer Agreement is a legally binding contract between ETW and the Customer. If you are a User, please see the User Agreement, which governs your use of the ETW Platform. If you have any questions over this document or what legal terms apply to your use of the Professional Services or ETW Platform, please contact ETW at email@example.com.
Acceptance and modification to this customer agreement
The Professional Services and ETW Platform are offered and available to users who are eighteen (18) years of age or older. By using the Professional Services or ETW Platform you represent and warrant that you are of legal age to form a binding contract with ETW.
Also, please note that we may revise and update this Customer Agreement from time to time in our sole discretion. All changes are effective immediately when posted and apply to all access to and use of the Professional Services or ETW Platform thereafter. Your continued use of the Professional Services or ETW Platform following the posting of changes means that you accept and agree to the changes. It is your responsibility to check this Customer Agreement periodically for changes, as these changes are binding on you.
Notice regarding dispute resolution
This Customer Agreement contains provisions that govern the resolution of claims between you and ETW. It also includes an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration. Unless you opt out, you will only be able to pursue claims against ETW on an individual basis, not as part of 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.
Customer rights and restrictions
Unless otherwise provided in the applicable Proposal, use rights to the ETW Platform are provided pursuant to a subscription plan for the designated subscription term (the “Subscription Term”), which are typically a monthly or annual term. Each subscription plan includes different functionalities and is priced per the authorized User count.
Limited use rights
On the condition that you comply with all your obligations under this Agreement and that you ensure that all of your authorized Users comply with this Agreement and the User Agreement, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to permit Users to access and use the ETW Platform in accordance with this Agreement and your subscription plan. Any other use of ETW Platform contrary to our purpose is strictly prohibited and a violation of this Agreement.
Customer will, and will ensure that its Users, only use ETW Platform in accordance with the standard-end user documentation made available by Customer and the applicable subscription plan. Customer will not, and will ensure that its Users do not: (i) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, host or transmit in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, any part of the ETW Platform; (ii) use the ETW Platform to provide services to third parties (e.g., business process outsourcing, service bureau applications or third party training); (ii) assign, sublicense, sell, lease, loan, resell, sublicense or otherwise distribute or transfer or convey the ETW Platform, or pledge as security or otherwise encumber User’s rights under this Agreement; (iii) make any use of or perform any acts with respect to the ETW Platform other than as expressly permitted in accordance with the terms of this Agreement; or (iv) use Service components other than those specifically identified in the Proposal and then only as part of the ETW Platform as a whole, even if it is also technically possible for Users to access other Service components; or (v) modify, further develop or create any derivative works of, disassemble, decompile, reverse engineer or otherwise attempt to obtain or perceive the source code from which any part of the Service is compiled or interpreted, or access or use the ETW Platform in order to build a similar or competitive product or service; (vi) allow use of the ETW Platform by anyone other than your authorized Users; (vii) unless otherwise expressly authorized in writing by ETW, access the ETW Platform for purposes of monitoring ETW’s availability, performance or functionality, including without limitation conducting any stress testing; (viii) publish any results of benchmark or performance tests run on the ETW Platform (ix) unless otherwise expressly authorized in writing by ETW, use the ETW Platform in connection with any software product or tools, or any other software as a service not provided by ETW; and (x) input, upload, transmit or otherwise provide to or through the services or any systems used by ETW anything that is unlawful, injurious, or contains, transmits or activates any harmful code. You acknowledge that nothing herein will be construed to grant any right to obtain or use the source code from which the Service is delivered. Customer and its Users shall not tamper with or attempt to disable any security device or protection used by the Service, nor shall Customer or its Users damage, destroy, disrupt or otherwise impede or harm in any manner the ETW Platform or any systems used by ETW.
Requirements for use of the ETW Platform
In order to use the Service, the User must have access to the Internet with a browser or operating system currently supported by ETW Platform, provide all equipment necessary to make and maintain such connection, including a VPN or other similar technology (if applicable) and all third party charges for labor, materials and equipment necessary to connect the User network with the ETW Platform.
Who owns what
The ETW Platform
As between Customer and its Users and ETW, ETW owns all right, title, and interest in and to all intellectual property rights (including all derivatives or improvements thereof) in the ETW Platform and any suggestions, enhancements requests, feedback, recommendations or other information provided by Customer or any of its Users related to ETW Platform. Customer’s use rights to ETW Platform and the related materials supplied by ETW pursuant to this Agreement are strictly limited to the right to use the proprietary rights in accordance with the terms of this Agreement. No right of ownership, expressed or implied, is granted under this Agreement.
Your warranties and other obligations
Applicable laws and this agreement
Customer is solely responsible for determining and ensuring that its and its Users’ provision or uploading of information into the Service complies with all applicable federal, state and local laws and regulations, including any concerning Customer’s obligations to retain wage or employment related records. Customer shall promptly investigate any allegations of the ETW Platform being misused by its Users, including any alleged use of the ETW Platform by Users to harass or discriminate against other Users, and promptly take all necessary action following such investigation to ensure that no such use continue to occur. Customer shall promptly inform ETW of any Users using in violation of this Section 6.1 or the User Agreement.
Submissions to ETW
Customer represents that it and its Users have secured all rights in and to all information provided to ETW, including all Customer Data, as may be necessary to grant ETW the rights and licenses to use such information set forth in this Customer Agreement. Customer further represents and warrants that this information is accurate and not in violation of any contractual restrictions or other third party rights. Customer acknowledges that it is Customer’s responsibility to keep such information accurate and updated.
To be eligible to use the Professional Services or ETW Platform, Customer represents and warrants that Customer: (1) is not a competitor of ETW or using the Professional Services or ETW Platform for reasons that are in competition with ETW; (2) has full power and authority to enter into this Agreement and its doing so will not violate any other agreement to which Customer is a party; (3) will not violate any rights of ETW, including intellectual property rights such as copyright or trademark rights; and (4) agrees to provide at Customer’s cost all equipment, software, and internet access necessary to use the ETW Platform.
Customer may designate and add Users and shall provide and assign unique passwords and user names to each User pursuant to ETW’s then-current protocols. At ETW’s discretion, Users may be added either by ETW or directly by Customer. Customer shall ensure that multiple Users do not share a password or user name. Customer further acknowledges and agrees that it is prohibited from sharing passwords and/or user names with unauthorized users. Customer will be responsible for the confidentiality and use of its Users passwords and user names. ETW will act as though any electronic communications it receives under such passwords, user names, and/or account numbers have been sent by Customer. Customer agrees to immediately notify ETW if it becomes aware of any loss or theft or unauthorized use of any of passwords, user names, and/or account numbers. Customer agrees not to access the ETW Platform by any means other than through the interfaces that are provided by ETW. Further, Customer is responsible for anything that happens through any of its Users’ accounts.
The ETW Platform are subject to the export control laws of various countries, including without limit the laws of the United States. Customer agrees that it will not submit, and shall ensure that is Users do not submit, the ETW Platform to any government agency for licensing consideration or other regulatory approval without the prior written consent of ETW, and will not export the Services to countries, persons or entities prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer and is Users are registered, and any foreign countries with respect to the use of the Service by Customer and/or its Users. Customer also represents and warrants that Customer and its Users are not prohibited from receiving US origin products, including services or software. Customer, on behalf of itself and all of its Users, consent to having its and its Users’ personal data transferred to and processed in the United States.
Customer agrees to defend, indemnify and hold harmless ETW for, from and against all damages, losses, claims, liabilities, expenses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, actions, suits, demands, proceedings, charges, and investigations, arising from or related to (1) Customer’s or its Users’ failure to comply with this Agreement and/or the User Agreement, and/or (2) any content submit by Customer or its Users to the ETW Platform.
Fees and payment terms
Fees; User Counts
Customer shall pay to ETW the use fees as set forth on the Proposal(s), as well as any professional service fees set forth on any Schedules. All fees, unless expressly stated otherwise on the applicable Proposal, shall be in United States dollars. Any fees not paid when due shall, which unless otherwise specified in the applicable Proposal or SOW will be thirty (30) calendar days from invoice, accrue interest at the rate of 18% (eighteen percent) per annum, but not to exceed the maximum amount as allowed by law. All fees are due in advance, irrevocable and non-refundable (except as expressly set forth otherwise in this Agreement). Customer agrees to provide ETW with complete and accurate billing and contact information.
For all per User charges, Customer must pay throughout the entire Subscription Term for the number of Users for whom Customer purchased use rights, regardless of whether Customer actually authorizes all such Users to access the ETW Platform. During the Subscription Term, Customer may increase the number of User for whom it purchases user rights, but it may not decrease the number of users. Should Customer authorize more Users during a Subscription Term than the number of Users for whom Customer purchased use rights, ETW will bill the Customer for the additional Users, pro-rated over the remaining Subscription Term.
Cancellations and Modifications to Subscription Plans
Fees depend on the subscription plan selected by the Customer. If a Customer desires to upgrade to higher level subscription plan, the Customer may do so at any time by submitting a request to ETW. If the Customer’s upgrade request is granted, Customer’s then-current subscription plan will be terminated and Customer will be granted a pro-rated credit for the time remaining on their Subscription Term. ETW will then immediately apply this pro-rated credit toward the fees owed by Customer for the upgraded plan, which upgraded plan will be for a Subscription Term mutually agreed to by the parties at the time of upgrade. A Customer may downgrade and/or cancel a plan at any time by submitting a request to ETW, however Customer will not be entitled to any refund of pre-paid fees.
Fees and other charges described in this Agreement do not include federal, state or local sales, foreign withholding, use, property, excise, service, or similar transaction taxes (“Tax(es)”) now or hereafter levied, all of which shall be for Customer’s account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to ETW prior to the execution of this Agreement. If ETW is required to pay Taxes, Customer shall reimburse ETW for such amounts. Customer hereby agrees to indemnify ETW for any Taxes and related costs, interest and penalties paid or payable by ETW.
ETW reserves the right to include disabling devices in the Service and to use such disabling devices to suspend access and/or use when any payment is overdue or when ETW believes that Customer or its Users are using the Service not in accordance with this Agreement and/or applicable laws and government regulations. Customer agrees that ETW shall not be liable to Customer, its Users or to any third party for any suspension of ETW Platform pursuant to this Section. If suspended for failure to pay, upon payment in full of all amounts overdue (including any interest owed), Customer may request the reactivation of its account. ETW shall reactivate Customer’s account within seven (7) days of receiving in advance all applicable reactivation fees, provided that ETW has not already terminated pursuant to Section 11 below.
ETW's warranties and obligations
ETW Platform availability
For as long as ETW continues to offer the ETW Platform, ETW shall provide and seek to update, improve and expand the ETW Platform. As a result, we allow you to access ETW’s website and ETW Platform as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue the ETW Platform, partially or entirely, or change and modify prices for all or part of the ETW Platform for you or for all our users in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted.
ETW warrants for a period of 30 days following their delivery that all Professional Services provided hereunder will be performed in a workmanlike manner, in conformity with the applicable specifications, if any, provided by ETW in writing in the applicable Proposal. Upon delivery of Professional Services, Customer shall have an acceptance period of thirty (30) calendar days during which Customer will have the opportunity to verify that the Professional Services comply in all material respects all material respects with the applicable specifications. If Customer concludes that the Professional Services are unacceptable, it shall notify ETW in writing by the Acceptance Deadline, including in such written notification a reasonably detailed explanation of the basis for the rejection of the Professional Services. If Customer does not provide such written notice by the Acceptance Deadline, Customer shall be deemed to have accepted the Professional Services. For any breach of this warranty timely reported by Customer, Customer’s sole and exclusive remedy shall be the re-performance of the deficient Professional Services, and if ETW is unable to re-perform the deficient Professional Services as warranted, Customer shall be entitled to recover the portion of the fees paid to ETW for such deficient Professional Services, and such refund shall be ETW’s entire liability.
Customer data backup
The ETW Platform is programmed to perform data backups of Customer Data stored within the ETW Platform. In the event of any loss, destruction, damage or corruption of Customer Data caused by ETW or the ETW Platform, ETW, as its sole obligation and liability and as Customer’s sole remedy, will use commercially reasonable efforts to restore Customer Data from ETW’s most current backup of Customer Data.
THE PROFESSIONAL SERVICES AND ETW PLATFORM AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AS “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND ETW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. CUSTOMER ACKNOWLEDGES THAT ETW DOES NOT WARRANT THAT THE PROFESSIONAL SERVICES OR ETW PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Professional Services or ETW Platform, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Proposals, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
Use of confidential information
Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party: (a) shall take commercially reasonable steps to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
Confidential terms and conditions; publicity
Customer shall not disclose pricing to any third party unless restricted from conforming to non-disclosure by governmental statute and/or ordinance. ETW may identify Customer on its customer lists and list Customer as a customer in its marketing and advertising materials, and reproduce Customer’s company name, logo, trademark, trade name, service mark, or other commercial designations, solely in connection therewith.
Limitation of liability
Neither ETW nor any of our affiliated companies, employees, agents, consultants, contractors, members, or managers (‘ETW Affiliates’) shall be cumulatively liable for (a) any damages in excess of the actual amount paid by Customer within the 5-month period preceding the event which gave rise to the claim, or US $100, whichever amount is greater, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Professional Services or ETW Platform, or any of the content or other materials on, accessed through or downloaded from ETW. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
- Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
- Not apply to any damage that ETW may cause you intentionally in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.
Term and Termination
Initial Term; Renewal Term.
For Customers who purchase use or access as part of a subscription, the Subscription Term shall commence upon the date set forth on the Proposal and shall continue for the period of time set forth in the Proposal. Except as otherwise provided in a Proposal, upon the expiration of the Initial Term, The Subscription Term shall automatically renew for successive Renewal Terms of equal length as the Initial Term at ETW’s then current fees unless either party provides notice of non-renewal as set forth in this Section. ETW will provide Customer with a notice of non-renewal or a notice of the fees due for each Renewal Term at least thirty (30) days prior to the commencement of the Renewal Term, using the contact information on file with ETW. Customer is responsible for making sure that it keeps current, accurate contact information on file with ETW. Customer may elect not to renew a Subscription Term by providing at least thirty (30) days prior written notice to ETW prior to the commencement of the Renewal Term. Such notice must be sent to ETW at firstname.lastname@example.org
Mutual rights of termination
In the event of any breach of this Agreement by either party, the non-breaching party shall have the right to terminate the Agreement (or the relevant Proposal) for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. Termination of your ETW account includes disabling your access to ETW’s website and ETW Platform.
Return of data
- ETW will have no obligation to provide Customer Data to Customer upon termination of this Agreement and not all Customer Data is available for export. ETW recommends that that the Customer initiate or perform data export for that Customer Data that is available for export prior to the actual termination date. The Customer Data will only be provided in file formats and shall be limited to those reports and other types of Customer Data as set forth in the then-current end user documentation.
- Notwithstanding Section 11.2(i), ETW shall continue to retain Customer Data for an additional minimum 365 days after termination of this Agreement (“Data Retention Period”) as a safeguard in the event that Customer requires additional data. To request data from ETW during the Data Retention Period, Customer should contact email@example.com for assistance. If Customer requires support for downloading any data after this Agreement has terminated, ETW may charge Customer at the then current hourly professional services rate for such support.
- After the Data Retention Period is completed, ETW may dispose of Customer Data if Customer has not purchased additional storage time from ETW. Customer will solely be responsible for complying with all local, state and federal records retention requirements.
- Abandoned Accounts. An abandoned account means a Customer has discontinued the Service (but has failed to formally terminate its account) by a combination of: (A) non-payment of the current or previous month fees and (B) 90 consecutive days of no Customer logins to the Service. At the 91st day, ETW will deem the account “Abandoned” and the account shall be terminated. ETW will also deem an account “Abandoned” and terminated if Customer fails to confirm their account via e-mail within 90 days of sign-up. After the account is deemed terminated, the data is held for the Data Retention Period and then may be disposed of in accordance with Section 11.2(iii).
Customer actions upon termination
Upon termination, Customer must return or destroy all ETW property in Customer’s possession. Customer, upon ETW’s request, will confirm in writing that it has complied with this requirement.
Suspension or termination of service for violation of law or the agreement
ETW may immediately suspend or terminate the Service and remove applicable Customer Data or content if it in good faith believes that, as part of using the Service, Customer or its Users may have violated a law or any term of this Agreement. ETW may try to contact Customer in advance, but it is not required to do so.
- Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
- Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.
You may begin an arbitration proceeding by following the American Arbitration Association’s (AAA’s) filing requirements and mailing a request for arbitration and description of your claim to us at 3241 E Shea Blvd, #498, Phoenix, AZ 85028. The AAA’s Rules of Commercial Arbitration will apply (available at www.adr.org or by calling 1-800- 778-7879). The arbitrator will have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of this agreement to arbitrate. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
You may opt out of this agreement to arbitrate by providing written notice of your intention to do so to ETW within 60 days of the earlier of your first use of the ETW Platform or your registration with the ETW Platform.
Any cause of action or claim you may have arising out of or relating to the Customer Agreement or the ETW Platform must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
In the event that any provision of this Customer Agreement is unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not affect the other provisions of this Customer Agreement and this Customer Agreement shall be construed as if such unenforceable or invalid provision had never been contained herein.
Notices and service of process
Notices to ETW shall be sent to 3241 E Shea Blvd, #498, Phoenix, AZ 85028.
Except as expressly provided for otherwise in this Customer Agreement, ETW shall provide all notices to Customer under this Customer Agreement by email, although we may instead choose to provide notice to Customer through the ETW Platform or your then-current postal address on file with ETW. For purposes of messages and notices about the ETW Platform applicable to all customers, ETW may place a banner notice across the ETW Platform to alert you. You also agree that ETW may communicate with you through your ETW account or through other means including email, mobile number, telephone, or delivery services including the postal service, about your ETW account or services associated with ETW. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the ETW Platform.
No informal waivers, agreements, or representations
Our failure to act with respect to a breach of this Customer Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Customer Agreement, no representations, statements, consents, waivers or other acts or omissions by any ETW Affiliate shall be deemed legally binding on any ETW Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of ETW.
No injunctive relief
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the ETW Platform or exploitation of the ETW Platform or any content or other material used or displayed through the ETW Platform.
Assignment and delegation
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, effective upon notice to you, ETW for any third party that assumes our rights and obligations under this Agreement.
Any delay or nonperformance of any provision of this Customer Agreement (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Customer Agreement, and the time for performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance.
Nothing contained in this Customer Agreement will be construed as creating any relationship of agency, partnership, joint venture, employment, franchise or other form of joint enterprise between you and us.