Terms and Conditions

1. Definitions

Whenever used in this Statement of Work, the terms set forth in these Terms and Conditions shall have the following meanings.  Additional terms are defined throughout this Statement of Work as they first appear.  Scott Growth Strategies, LLC, with a business address of 3155 Bluestem Drive, Suite 393, West Fargo, ND 58078, and Customer may be jointly referred to as the “Parties” and individually referred to as a “Party.” 

  • “SOW” means this Statement of Work.
  • “Deliverables” means the tangible materials that Scott Growth Strategies, LLC delivers to the Customer as set forth in this SOW. 
  • “Developed Work” means any and all Technology that is developed or reduced to practice in the process of developing and delivering the Deliverables.  
  • “Technology” means algorithms, concepts, data, designs, developments, documentation, discoveries, HTML, XML and other codes, inventions, methods, multimedia files, object code, procedures, scripts, programs, source code, text, documentation, web pages and any other item generally recognized as technology in Scott Growth Strategies, LLC or the Customer’s industry. 
  • “Products” means hardware and/or software products manufactured or licensed by a third party.  Products may be incorporated in, or delivered with, any of the Deliverables.  
  • “Services” means any services performed under this SOW, which may or may not include the delivery of tangible materials (e.g. training). 

2. Warranty and Defect Maintenance 

Scott Growth Strategies, LLC warrants that it will perform Services hereunder in good faith and with a level of professional competence usual in the industry.  Scott Growth Strategies, LLC will provide Defect Maintenance (as defined below) for the Deliverables and the Developed Work for ninety (90) days from the time of final acceptance of the Deliverables at no additional cost to Customer.  Thereafter, Scott Growth Strategies, LLC will provide support and/or maintenance for the Deliverables and the Developed Work for an additional fee and subject to the terms and conditions of a Maintenance and Support Agreement.  Notwithstanding the foregoing, any support and/or maintenance (whether during the initial 90-day period or thereafter) that is necessitated by any change, modification, editing or repairs made to the Deliverables or the Developed Work by Customer or any third party, shall be at an additional cost to Customer.  For purposes of this SOW, “Defect Maintenance” shall mean maintenance of the Deliverables and the Developed Work to enable it to work properly in the original environment for which it was designed. 

Any Products delivered to Customer by Scott Growth Strategies, LLC under this SOW are delivered without warranty of any kind from Scott Growth Strategies, LLC.  Scott Growth Strategies, LLC does not make and expressly disclaims any and all warranties and representations of any kind or nature with respect to any Products.  This disclaimer includes any warranties of non-infringement or otherwise.  Customer’s only warranties for Products are the applicable manufacturer’s warranties, if any.

3. Acceptance of Deliverables

Scott Growth Strategies, LLC shall deliver each Deliverable at the time and in the manner specified under this Paragraph 3 or as otherwise specified in this SOW.  Each Deliverable comprised of or containing Developed Work will be subject to acceptance testing by Customer to verify that the Deliverable satisfies the criteria for acceptance mutually agreed to by Customer and Scott Growth Strategies, LLC in this SOW.  At such time as Scott Growth Strategies, LLC first offers the applicable Deliverable to Customer for acceptance, Scott Growth Strategies, LLC shall provide written notice of completion to Customer (the “Completion Acknowledgement”).  Upon receipt of the Completion Acknowledgement, Customer shall have seven (7) business days to complete such acceptance testing as Customer desires to determine the functionality, performance and conformance of the Deliverable to the specifications contained in this SOW.  In the event of any dispute between Customer and Scott Growth Strategies, LLC, the failure of Customer to perform such tests shall preclude Customer from raising issues of functionality, performance or nonconformance to the specifications established in this SOW.  Within seven (7) business days after receipt of the Completion Acknowledgement, Customer may give Scott Growth Strategies, LLC a written letter specifying deficiencies (the “Deficiencies”) in the Deliverable.  Such letter shall specify the particular requirements of this SOW with which the Deliverable does not comply.  In the event of any alleged Deficiencies, Scott Growth Strategies, LLC shall proceed in a commercially reasonable manner to correct at its own expense such Deficiencies, if they so exist.  After the Deficiencies have been corrected by Scott Growth Strategies, LLC and subsequent notice is given to Customer, Customer may again run such acceptance tests as it desires and thereupon deliver to Scott Growth Strategies, LLC the Completion Acknowledgement or a list of any additional Deficiencies within seven (7) business days of such subsequent notice.  Such process shall continue until the Deliverables or Developed Work have been accepted.  Notwithstanding the foregoing, if Customer (a) begins use of the Deliverable before acceptance, or (b) fails to notify Scott Growth Strategies, LLC of its acceptance or non-acceptance within seven (7) business days of receipt of the Completion Acknowledgement, Customer shall be deemed to have accepted the Deliverable and shall have no further recourse under this Paragraph 3. 

4. Payments 

Milestone Billing Schedule and verification of completion of the milestone by Customer as provided in Paragraph 3, Scott Growth Strategies, LLC will bill Customer for the amount set forth in this SOW for that milestone.  If Progress Payments are specified in this SOW, Customer will be billed as set forth in the Progress Payment Schedule with the final payment subject to acceptance of the Deliverables as provided in Paragraph 3.  Payment terms for all invoices are Net thirty (30) Days.  Late charges will be assessed on all undisputed amounts, after thirty (30) days from receipt of invoice, at the lesser of one- and one-half percent (1.5%) per month or the maximum interest allowed by applicable law.  If Scott Growth Strategies, LLC is required to retain a collection agency or attorney to collect any undisputed overdue payment, all reasonable collection costs, including attorney fees, will be payable by Customer. 

In addition to the fees specified in this SOW, Customer shall also be liable for, and shall reimburse Scott Growth Strategies, LLC for, all freight and insurance charges as well as all local, state, federal and non-United States taxes or similar assessments or charges (including any interest and penalties imposed thereon) arising out of, or relating to this SOW, other than taxes based on the net income of Scott Growth Strategies, LLC. 

5. Change Control 

If Customer wishes to make any changes to an executed SOW, Customer shall provide Scott Growth Strategies, LLC with a proposed change order specifying the desired changes in the requirements (the “Change Order”).  Customer acknowledges that any changes to an SOW may require increased work by Scott Growth Strategies, LLC, necessitating a reasonable adjustment in the payment due Scott Growth Strategies, LLC.  The Parties shall negotiate such increases in good faith and Customer agrees to accept any delays in the Services or Deliverables caused by such negotiations and/or change in the requirements.  Acceptance of the proposed Change Order shall be at Scott Growth Strategies, LLC’s sole discretion.  If Scott Growth Strategies, LLC accepts the proposed Change Order and Customer accepts the adjustment in the compensation to Scott Growth Strategies, LLC and/or the schedule, the Parties shall execute the proposed Change Order, which shall detail the change in the Deliverables or Services, the adjusted compensation and/or the adjusted schedule.  When signed by both Parties, the terms of the Change Order shall prevail over the applicable SOW to the extent they are inconsistent.  If Scott Growth Strategies, LLC does not accept the proposed Change Order and/or Customer does not accept the adjustment in the compensation to Scott Growth Strategies, LLC, the proposed Change Order shall be null and void and this SOW shall continue to govern without change. 

If the Customer requests changes while the work is in process and the Parties agree that the changes do not warrant the change control process described in Paragraph 5, Scott Growth Strategies, LLC will charge for the additional work on a time-and-materials basis at Scott Growth Strategies, LLC’s published hourly rate. 

6. Charges for Idle Time 

Should Scott Growth Strategies, LLC personnel assigned to do the work, need to wait due to Customer or a third party under the direction of Customer not having resources available as outlined in this SOW, Scott Growth Strategies, LLC will charge by the hour for that idle time. The charge will be at Scott Growth Strategies, LLC’s published rate per hour for a maximum of eight hours per occurrence.  Once the eight hours have been reached, Scott Growth Strategies, LLC personnel will exit the work location and return the next business day.  If the resources are still not available after the third business day, Scott Growth Strategies, LLC personnel will exit the work location and not return until the project has been rescheduled.  If Customer’s work location is more than fifty (50) miles from the Scott Growth Strategies, LLC office providing the Services, Customer will also be responsible for all direct travel and per diem expenses incurred as a result of the delay.

7. Hour Categories 

In the case of time and materials work the following definitions are used to apply normal time and overtime rates.  Normal business hours are defined as eight hours performed within a single 24-hour period beginning at 7:00AM to 6:00PM Monday through Friday, excluding holidays as defined by United States Code Title 5 Section 6103(a).  Hours worked beyond the eight hours in a single day or hours worked on weekends or holidays are considered overtime hours.

8. No Solicitation 

During the period beginning on the effective date of this SOW and for a period of one (1) year after the date of the Completion Acknowledgement of this SOW neither Customer nor Scott Growth Strategies, LLC shall, without the express written consent of the other Party, individually or on behalf of any other person, firm, corporation or other entity, directly or indirectly, solicit or encourage any employee of the other Party, or any subsidiary of the other Party, to terminate his or her employment with that Party.  For purposes of this Paragraph, each Party’s employees shall include both independent contractors, as well as personnel utilized by such Party, who are employees or contractors of third parties.  Both Parties agree that should it hire any of the other Party’s personnel, it will pay the damaged Party a nonrefundable hiring fee of thirty percent (30%) of the first year’s base compensation for each person hired.  The damaged Party will invoice the offending Party upon the start date of hire and such invoice will be paid in full within fifteen (15) days.  This provision shall survive the termination of this SOW.  This provision shall not restrict in any way the right of either Party to solicit generally in the media for personnel, or restrict in any way the right of either Party to hire any person as a result of such general solicitation, and shall not restrict employees, contractors, or representatives of either Party from pursuing on their own initiative employment opportunities from or with the other Party, or restrict the other Party from hiring such persons, and shall not restrict either Party from soliciting or hiring any personnel from the other Party who is referred to such Party by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by such Party to solicit employees of the other Party. 

9. Confidential Information 

Confidential Information” means any information and data, including in tangible, electronic or other form, of Scott Growth Strategies, LLC or Customer that is identified as confidential or proprietary at the time of disclosure or which should be understood to be confidential by the nature of the information or the circumstances of the disclosure. Confidential Information shall include without limitation Services, Products, Customer data, business plans, strategies, technology, software, documentation, methodologies, know-how, technical information, financial information, information regarding each Party’s operations, business relationships and the terms of this SOW. Confidential Information shall not include any information which: (a) is known to the receiving Party prior to receipt hereunder from a source that, to the receiving Party’s knowledge, does not have an obligation of confidentiality to the disclosing Party; (b) becomes lawfully known (independently of disclosure by the disclosing Party) to the receiving Party from a source that, to the receiving Party’s knowledge, does not have an obligation of confidentiality to the disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this SOW; or (d) is independently developed by the receiving Party without use of the Confidential Information.  The receiving Party agrees that it will not use the Confidential Information of the disclosing Party in any way, for its own account or the account of any third party, except for the purpose of performing this SOW, nor will the receiving Party disclose the Confidential Information of the disclosing Party to any third party except as required by law, legal or judicial process or as requested by a regulatory authority.  The receiving Party will take commercially reasonable precautions to protect the confidentiality of such Confidential Information. In the event that either Party is required by law, legal or judicial process or as requested by a regulatory authority to make any disclosure of any Confidential Information, by subpoena, judicial or administrative order or otherwise, such Party must first, to the extent permitted by applicable law or regulation and except in connection with an examination by a regulatory authority, give written notice of such requirement to the other Party, and must permit such Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide reasonable cooperation and assistance in seeking to obtain such protection, all at the disclosing Party’s cost and expense. The terms and conditions of this SOW shall be considered confidential and proprietary information under this paragraph.  If the Parties have previously executed a Non-disclosure Agreement, the terms and provisions of such Non-disclosure Agreement are hereby incorporated herein by this reference. To the extent that there is a conflict between the terms and provisions of this SOW and such Non-disclosure Agreement, the more restrictive terms and provisions shall control.

10. Independent Contractor 

Personnel furnished by Scott Growth Strategies, LLC to perform the Services and deliver the Deliverables shall under no circumstances be considered Customer employees or agents and shall be in an independent contractor relationship to Customer at all times Scott Growth Strategies, LLC and its personnel will not be entitled to any of the benefits that Customer may make available to its employees, including, but not limited to, group health or life insurance, profit sharing, stock option or retirement benefits.

11. Indemnification 

11.1 Intellectual Property 

Scott Growth Strategies, LLC shall indemnify and hold harmless the Customer against any losses, claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Loss”) to which the Customer may become subject, related to or arising out of an allegation that any Deliverable or Developed Work provided under this SOW, when used as contemplated by the SOW, infringes any third party’s copyright or trade secrets.  If a court or settlement enjoins the use of any Deliverable or Developed Work, or if in Scott Growth Strategies, LLC’s reasonable opinion, any Deliverable or Developed Work is likely to become the subject of a Loss, Scott Growth Strategies, LLC shall have the option to modify such Deliverable or Developed Work so that it becomes non-infringing, or to substitute a substantially equivalent non-infringing Deliverable or Developed Work, or to obtain for the Customer a license to continue to use the Deliverable or Developed Work.  Scott Growth Strategies, LLC shall have no obligation under this Paragraph for any Loss if Scott Growth Strategies, LLC has offered such modified or replacement Deliverable or Developed Work and the Loss results from Customer’s failure to use the modified or replacement Deliverable or Developed Work.  Notwithstanding the foregoing, Scott Growth Strategies, LLC shall have no obligation under this Paragraph for any Loss that results from (a) use of any Deliverable or Developed Work in combination with materials, services or products not supplied by Scott Growth Strategies, LLC, other than as reasonably contemplated by this SOW or if Scott Growth Strategies, LLC instructs or advises Customer to use a Deliverable or Developed Work in combination with such items, if such Deliverable or Developed Work would not have infringed the copyright or trade secret of the Party bringing the claim absent such combination, or (b) modifications to the Deliverable or Developed Work by any party other than Scott Growth Strategies, LLC, other than as reasonably contemplated by this SOW or if Scott Growth Strategies, LLC instructs or advises Customer to make such modifications, if such Deliverable or Developed Work would not have infringed the copyright or trade secret of the party bringing the claim absent such modifications.  An “Indemnified Customer Party” shall include all individuals or entities controlling, controlled by or under common control with Customer (each, a “Customer Affiliate”), and the officers, directors, attorneys and employees of Customer and each Customer Affiliate.  Scott Growth Strategies, LLC shall reimburse an Indemnified Customer Party for all legal and other expenses, including, without limitation, reasonable attorneys’ fees incurred by such Indemnified Customer Party in connection with investigating, defending or settling any Loss. 

Any Products delivered to Customer by Scott Growth Strategies, LLC under this SOW are delivered without indemnification of any kind from Scott Growth Strategies, LLC.  Scott Growth Strategies, LLC does not make and expressly disclaims any and all indemnification of any kind or nature with respect to any Products.  Customer’s only protection for claims related to intellectual property infringement for Products delivered pursuant to this SOW is the indemnification provided by the manufacturer, if any.

11.2 Bodily Injury, Death and Property Damage 

To the fullest extent permitted by law, Scott Growth Strategies, LLC and Customer at their own expense, agree to indemnify, defend and hold the other, its shareholders, owners, officers, directors, agents, and employees harmless from and against all third party Claims (as defined below) from any cause arising out of or relating (directly or indirectly) to a breach of the provisions of this SOW by such Party, except for Claims arising out of or relating to the willful or intentional misconduct or gross negligence of the indemnified Party.  For purposes of this SOW, “Claims” means any and all claims, causes of action (whether based on tort or contract law principles, law or equity, or otherwise), charges, assessments, fines, and penalties of any kind (including consultant and expert expenses, court costs, and reasonable attorneys’ fees).  This indemnification extends to and includes but is not limited to Claims for:  (i) injury to any person (including death at any time resulting from that injury); and (ii) loss of, injury or damage to, or destruction of real or personal property (including all loss of use resulting from that loss, injury, damage, or destruction of premises).  This indemnification may not be construed or interpreted as in any way restricting, limiting, or modifying either Party’s insurance or other obligations under this SOW and is independent of the insurance obligations of either Party.  The provisions of this paragraph shall survive the expiration or earlier termination of any SOW being provided under this SOW until all Claims involving any of the indemnified matters are fully, finally, and absolutely barred by the applicable statutes of limitation.  Notwithstanding the foregoing, in no event shall either Party’s liability for indemnification under this Paragraph exceed the amount of one million dollars ($1,000,000). 

Each Party’s indemnification obligations hereunder shall be subject to (i) receiving prompt written notice of the existence of any action (provided that failure to provide such notice shall only excuse the other Party to the extent that it is prejudiced thereby); (ii) being able to, at its option, control the defense of those portions of such action for which indemnification is sought; (iii) permitting the indemnified Party, at its own expense, to participate in the defense of those portions of such action for which indemnification is sought; and (iv) receiving reasonable cooperation of the indemnified Party in the defense thereof, all at the indemnifying Party’s cost and expense. 

12. Disclaimer and Limitation of Liability 

Except as expressly provided in this SOW, Scott Growth Strategies, LLC does not make and expressly disclaims any and all warranties and representations of any kind or nature with respect to the Services performed or Deliverables delivered under this SOW, expressed or implied, including, without limitation, the implied warranties of title, merchantability and fitness for a particular purpose.  Scott Growth Strategies, LLC does not warrant (a) that the Deliverables will run properly on all hardware or systems or operate in all combinations which may be selected for use by Customer, or (b) that the operation of the Deliverables will be uninterrupted or error free.  

With the exception of claims pursuant to Paragraph 11 , and except in the case of willful or intentional misconduct or gross negligence, it is understood and agreed that either Party’s liability to the other Party for damages from any cause whatsoever and regardless of the form of action, whether in contract, tort, strict liability or otherwise, or whether foreseeable or unforeseeable, shall not exceed the total amounts paid or owing by Customer to Scott Growth Strategies, LLC for the Deliverables or Services provided under this SOW.  In no event shall either Party be liable for any indirect, consequential, incidental, special or punitive damages, including without limitation loss of use, interruption of business, loss of data or loss of profits, arising out of or in any way connected with this SOW, the Deliverables, the Services, or any Scott Growth Strategies, LLC supplied software, or third party software, even if such Party has been advised of the possibility of such damages.  No action, regardless of form, arising out of the Deliverables or Services being provided by Scott Growth Strategies, LLC hereunder, may be brought by either Party more than four (4) years after the cause of action has occurred, except with respect to claims relating to infringement of intellectual property rights.

13. Ownership and Licensing of Intellectual Property 

13.1 Customer’s Rights 

Prior to Scott Growth Strategies, LLC’s receipt of full and final payment from Customer for Deliverables delivered or Services rendered hereunder, Scott Growth Strategies, LLC shall retain all right, title and interest in and to any Deliverables and/or Developed Work, including without limitation all rights under all copyright, patent, and other intellectual property laws.  Upon final payment by Customer of all amounts due under this SOW and provided that Customer is not otherwise in default of its obligations under this SOW, the tangible items specified as Deliverables or Developed Work under this SOW will become the property of Customer.  To the extent that any Scott Growth Strategies, LLC Technology is contained in any Deliverables, Scott Growth Strategies, LLC grants to Customer, upon full and final payment to Scott Growth Strategies, LLC hereunder, a royalty-free, fully paid-up, worldwide, non-exclusive license to use such Scott Growth Strategies, LLC Technology in connection with the Deliverables.  The foregoing license grant conveys no ownership interest in and to the Scott Growth Strategies, LLC Technology and does not grant Customer the right to extract such Scott Growth Strategies, LLC Technology from the Deliverables for the purpose of selling, reproducing, distributing, or marketing copies thereof to third parties as a stand-alone product. 

Scott Growth Strategies, LLC will be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, methodologies, and techniques within the scope of its consulting practice that are used in the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Scott Growth Strategies, LLC. In addition, in no event will Scott Growth Strategies, LLC be precluded from developing for itself, or for others, materials that are competitive with the Deliverables or the Developed Work, irrespective of their similarity to the Deliverables or Developed Work, provided this is done without violation of the foregoing clauses and the confidentiality clauses set forth in Section 9 herein. 

13.2 Products 

Scott Growth Strategies, LLC does not directly grant any license to Customer for any Products delivered hereunder.  Scott Growth Strategies, LLC shall assist Customer in obtaining from the applicable third-party vendor a license to use the Products, subject to such third party vendor’s terms and conditions and at Customer’s sole expense.  This SOW shall specifically describe any Products delivered hereunder and the costs associated therewith.

13.3 License from Customer 

During the period of performance of this SOW, Customer hereby grants to Scott Growth Strategies, LLC a revocable, nonexclusive, worldwide, personal, royalty-free and nontransferable license to use, solely for the purpose of providing Services under this SOW, any and all Technology owned by Customer, or owned by a third party and licensed to Customer (to the extent permitted by such license), necessary for Scott Growth Strategies, LLC to design, develop, test, operate, enhance and maintain the Deliverables and/or provide the Services.  The license granted herein shall expire upon acceptance of the Deliverables or completion of the Services and shall under no circumstances give Scott Growth Strategies, LLC any right in or claim to such Technology other than as expressly set forth above or alter Customer’s ownership of the Deliverables and Developed Work under this SOW as set forth in this SOW. 

14. Force Majeure 

If the performance of this SOW or any obligation hereunder (except the payment of monies due hereunder) is prevented, restricted or interfered with by reason of any event or condition beyond the reasonable control of such Party (including, without limitation, acts of State or governmental action, international or domestic terrorism, riots, disturbance, war, strikes, lockouts, slowdowns, prolonged shortage of energy or other supplies, epidemics, fire, explosion, flood, hurricane, typhoon, earthquake or other act of God), the Party so affected shall be excused from such performance, only for so long as and to the extent that such a force prevents, restricts or interferes with such Party’s performance and provided that the Party affected gives notice thereof to the other Party and uses diligent efforts to remedy such event or condition. 

15. Consent to use Subcontractors 

From time to time in the performance of this SOW, it may be necessary or desirable for Scott Growth Strategies, LLC to engage third parties as subcontractors.  Customer consents and agrees that Scott Growth Strategies, LLC may engage subcontractors to provide services hereunder, as it deems necessary, but that Scott Growth Strategies, LLC shall retain full responsibility for all such services.  Within the first twenty-four (24) hours actually worked by any subcontractor, Customer shall review the subcontractor’s performance and decide whether such subcontractor’s performance is acceptable.  If Customer is dissatisfied with the performance of the subcontractor and wishes Scott Growth Strategies, LLC to replace such subcontractor, Customer must provide written notification to Scott Growth Strategies, LLC within the initial twenty-four (24) hour period, specifying the reasons for its dissatisfaction and requesting the replacement of the subcontractor.  Customer shall not be required to pay for the hours worked by that subcontractor during the initial twenty-four (24) hour period, provided its reasons for requesting the replacement are not unlawful and are bona fide in Scott Growth Strategies, LLC’s reasonable judgment.  If Customer becomes dissatisfied with the performance of a subcontractor after the initial twenty-four (24) hour period, Customer may still request that Scott Growth Strategies, LLC replace the subcontractor, but Customer shall pay for all hours worked by the terminated subcontractor from the first hour of work up to and including the date of termination.  Scott Growth Strategies, LLC shall use commercially reasonable efforts to replace a subcontractor removed for performance reasons, within 5 business days of the date of removal.  Scott Growth Strategies, LLC reserves the right to adjust the delivery schedule in the event a subcontractor is removed pursuant to this Paragraph 16.

16. Extent of SOW 

This SOW, including any change authorizations, appendices, addendums or attachments, constitutes the final and complete expression of all terms of the agreement between the Parties.  It supersedes all proposals, understandings, and negotiations concerning the matters that it covers.  Any representations, oral statements, or warranties made by either Party that differ in any way from the terms of this SOW shall be given no force or effect.  No additions to or modifications of any provisions of this SOW shall be binding upon either Party unless made in writing and signed by a duly authorized representative of the Parties to be bound.  Customer acknowledges that any additional or conflicting terms and conditions contained in Customer’s purchase order shall not be applicable to the services to be provided hereunder, even if Scott Growth Strategies, LLC relies on such purchase order for invoicing purposes. 

17. Written Communications 

For the purposes of this SOW, written communication shall be defined to include facsimile transmissions and electronic mail.

18. Counterparts 

This SOW may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed original and such counterparts together shall constitute but one and the same instrument.  The Parties further agree that executed documents under this SOW may be sent via facsimile or scanned and sent via electronic mail.