BACKGROUND
Company has developed a proprietary software-as-a-service platform that transforms the way property and spaces are marketed, experienced, and sold, as further described in the Order (as defined below) (the “Company Platform”). The Company Platform includes any updates that are made generally available by the Company to other customers of the Company Platform at no additional charge during the Term (as defined below), but expressly excludes any upgrades or additional services, features or analytics that are made available by the Company for an additional charge. Company and Customer have entered into the Service Order attached hereto (the “Order”) and, from time to time hereafter, Customer and Company may enter into additional Service Orders that expressly reference, and are governed by, these Platform Terms and Conditions (“Future Orders”) pursuant to which Customer will purchase rights to access and use certain features of the Company Platform, as detailed in the applicable Order. These Terms and Conditions are incorporated by reference into the Order to create this Agreement and will be incorporated by reference into each Future Order to create separate future agreements for the rights and services described in the applicable Future Order, in each case to the exclusion of any other terms or conditions that either party seeks to impose or incorporate or that are implied by course of dealing.
1 ACCESS TO PLATFORM
1.1 Company Platform. During the Term, Company will use commercially reasonable efforts to make the Company Platform available to Customer via the Internet pursuant to this Agreement. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, nonexclusive, nontransferable (except as set forth in Section 9), non-sublicensable right to access and use the Company Platform during the Term solely for Customer’s internal business purposes.
1.2 Restrictions and Responsibilities. Customer will not use the Company Platform for any purpose other than the purposes expressly set forth herein. Customer may not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Company Platform; (b) modify, translate, or create derivative works based on the Company Platform; (c) use the Company Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Company Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like. Customer will also be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords. Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer). Customer will inform Company immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Company Platform. Without limiting any other rights or remedies set forth herein or available pursuant to law, Company may immediately suspend Customer’s access to the Company Platform if Customer is in breach of any term or condition of this Agreement.
1.3 License to Customer Data. Customer hereby grants to Company a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors, consultants and service providers of Company), non-transferable (except as set forth in Section 9) right and license to copy, distribute, display, create derivative works of and otherwise use (a) the data, information and other content input, submitted, transmitted or uploaded by Customer into or via the Company Platform, including through Third Party Services (as defined below) and (b) Output (as defined below) (collectively, the “Customer Data”) to (a) provide the Company Platform and otherwise perform Company’s obligations under this Agreement, (b) improve and develop products and services, including by training and developing models and/or algorithms, and (c) create aggregated and/or anonymized data (“Aggregated Data”), which Aggregated Data will not identify Customer or any individuals associated therewith. For the avoidance of doubt, Aggregated Data is not Customer Data.
1.4 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Company Platform or Evaluation Services (as defined below). Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to Company a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback. Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).
1.5 Evaluation Services. From time to time, Customer may be invited to try certain services at no charge for a free pilot period or if such services are not generally available to customers (collectively, “Evaluation Services”). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like. In the event Customer’s initial use of the Company Platform will be pursuant to a free pilot period (the “Pilot Period”), the duration of the Pilot Period will be included in the Order. For the avoidance of doubt, the provision of the Company Platform by Company during the Pilot Period (if any) is deemed “Evaluation Services” hereunder. During the Pilot Period and as may be required by Company in connection with access to any other Evaluation Services, Customer will engage in weekly feedback meetings with Company to discuss the Evaluation Services. Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms. Company may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Company will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
1.6 Third Party Services. The Company Platform may enable access to or integration with certain third party services, products, solutions, software or technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”). The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services. Some Third Party Services may provide Company with access to certain information that Customer has provided to such Third Party Services. Any data, information or other materials related to Customer collected via or received by Company from any Third Party Service will be deemed Customer Data. Company has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services. Company will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services. Company enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation. Any dealings Customer has with third parties while using the Company Platform are between Customer and the third party. Company is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.
1.7 Service Levels; Support. Company will use reasonable efforts consistent with prevailing industry standards to provide the Company Platform in a manner that minimizes errors and interruptions in accessing the Company Platform. The Company Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Company’s control.
2 OWNERSHIP; RESERVATION OF RIGHTS
Customer acknowledges and agrees that, as between the parties, Company retains all right, title and interest in and to the Company Platform and all associated intellectual property rights. Company grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Company Platform. Customer will acquire no right, title, or interest in and to the Company Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, except for the limited rights expressly granted to Company under this Agreement, Customer retains all right, title and interest in and to the Customer Data.
3 FEES; PAYMENT TERMS
3.1 Fees; Payment Terms. Customer will pay to Company the fees set forth in the Order in accordance with the payment terms set forth in the Order. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Company within ten (10) days from the time such payment is due, Company may suspend Customer’s access to the Company Platform until such payment is made. Payment obligations are non-cancelable and fees paid are non-refundable. Company may increase prices for any Renewal Term (as defined below) by providing Customer notice of the price increase at least forty-five (45) days’ prior to the end of the then-current term.
3.2 Net of Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, excise, sales, use, value added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.
4 TERM, TERMINATION
4.1 Term. This Agreement will commence on the Effective Date and continue for the Pilot Period (if any) and the initial term set forth in the Order Form (the “Initial Term”), unless otherwise earlier terminated in accordance with this Agreement. Thereafter, this Agreement will automatically renew for renewal terms of equal duration to the Initial Term (each, a “Renewal Term” and, together with the Pilot Period (if any) and the Initial Term, the “Term”), unless either party provides written notice of termination during the Pilot Period (as set forth below) or written notice of non-renewal during the Initial Term or any Renewal Term to the other party at least thirty (30) days’ prior to the end of the then-current term. Either party may terminate this Agreement for any or no reason during the Pilot Period, upon written notice to the other party. At any time during the Term, either party may terminate this Agreement immediately by providing a written notice to the other party if that other party has breached any of its material obligations and has not fully cured the breach within thirty (30) days after it has been given an initial written notice specifying the breach.
4.2 Effect of Termination. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. Thereafter, Company may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the Company Platform or on Company’s network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Company to provide the Company Platform will immediately terminate and (a) Customer will cease use of the Company Platform; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information.
4.3 Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.4, 1.6, 2, 3, 4.2, 4.3, 5, 6.3, 7, 8 and 9 will survive.
5 CONFIDENTIALITY
5.1 Definition of Confidential information. “Confidential Information” means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.
5.2 Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
5.3 Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
5.4 Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
6 REPRESENTATIONS, WARRANTIES AND DISCLAIMER
6.1 Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
6.2 Customer Representations and Warranties. Customer represents, warrants and covenants that (a) it has all rights necessary to permit Company to use the Customer Data as contemplated hereunder and (b) the Customer Data will be true, accurate and complete.
6.3 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE COMPANY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE COMPANY PLATFORM WILL BE SECURE OR UNINTERRUPTED. WITHOUT LIMITING ANYTHING CONTAINED IN THIS AGREEMENT, CUSTOMER AGREES AND ACKNOWLEDGES THAT COMPANY CANNOT GUARANTEE THE ACCURACY OF THE SERVICES OR OUTPUT PROVIDED HEREUNDER AND THAT THE COMPANY PLATFORM AND OUTPUT MAY INCLUDE INACCURACIES (INCLUDING DUE TO, WITHOUT LIMITATION, INACCURATE OR UNCLEAR DATA, SOFTWARE OR OTHER INFORMATION TECHNOLOGY ERROR OR MALFUNCTION, AND/OR HUMAN ERROR). CUSTOMER ACKNOWLEDGES AND AGREES THAT THE COMPANY PLATFORM LEVERAGES PROPRIETARY AND/OR THIRD-PARTY ADVANCED TECHNOLOGIES, SUCH AS ARTIFICIAL INTELLIGENCE, MACHINE LEARNING SYSTEMS AND SIMILAR TECHNOLOGY AND FEATURES (COLLECTIVELY, “AI TECHNOLOGY”). CUSTOMER ACKNOWLEDGES AND AGREES THAT, IN ADDITION TO THE OTHER LIMITATIONS AND RESTRICTIONS SET FORTH IN THIS AGREEMENT: CUSTOMER WILL USE DISCRETION AND INDEPENDENT JUDGMENT BEFORE RELYING ON, SHARING OR OTHERWISE USING THE RESULTS GENERATED BY THE AI TECHNOLOGY AND PROVIDED TO CUSTOMER THROUGH THE COMPANY PLATFORM (“OUTPUT”). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY BEARS NO LIABILITY TO CUSTOMER OR ANYONE ELSE ARISING FROM OR RELATING TO CUSTOMER’S USE OF THE OUTPUT.
7 LIMITATIONS OF LIABILITY
7.1 Disclaimer of Consequential Damages. EXCEPT FOR LIABILITY ARISING FROM (A) EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (B) EITHER PARTY’S BREACH OF SECTION 5 ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. EXCEPT FOR LIABILITY ARISING FROM (A) EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (B) EITHER PARTY’S BREACH OF SECTION 5 ABOVE, (C) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR (D) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8 INDEMNIFICATION
8.1 Indemnification by Company. Company will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Company Platform infringes any intellectual property right of a third party. Further, Company will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Company’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Company Platform by any party other than Company without Company’s express consent; (b) the combination, operation, or use of the Company Platform with other product(s), data or services where the Company Platform would not by itself be infringing; or (c) unauthorized or improper use of the Company Platform. If the use of the Company Platform by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (i) procure for Customer the right to continue using the Company Platform as set forth hereunder, (ii) replace or modify the Company Platform to make it non-infringing so long as the Company Platform has at least equivalent functionality, (iii) substitute an equivalent for the Company Platform or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Company’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Customer. Customer will defend Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) against any Claims arising from (a) any use by Customer of the Company Platform in violation of this Agreement, (b) the Customer Data or (c) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services. Further, Customer will indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
8.3 Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section
8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
9 GENERAL
Customer agrees that Company may (a) list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on Company’s website and in other marketing and advertising collateral and (b) publish a case study with respect to Customer’s use of the Company Platform. Customer may not remove or export from the United States or allow the export or re-export of the Company Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Company may use subcontractors in its performance of this Agreement; provided that Company will remain responsible for any such subcontractor’s performance hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement without such consent to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order and these Platform Terms and Conditions, the terms and conditions set forth in these Platform Terms and Conditions will govern unless expressly stated otherwise in the Order. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in New York, New York, and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Company Platform may cause irreparable harm and injury to Company for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Company may be entitled to injunctive relief in the event Customer uses the Company in any way not expressly permitted by this Agreement.