PULSA Platform TERMS OF SERVICE
This Pulsa Platform Terms of Service Agreement (this “Agreement”) is entered into by and between Pulsa, Inc., a Delaware Corporation with a mailing address at [607 Market St # 2, San Francisco, CA 94105] (“Pulsa”) and the person or entity registering to use the Pulsa Platform (such entity or individual, the “Subscriber”) through Pulsa’s mobile application or website (collectively, the “Site”) and is effective as of the date of such registration (the “Effective Date”).IF THIS AGREEMENT IS BEING ENTERED INTO BY A SUBSCRIBER THAT IS AN ENTITY, THEN BY CLICKING ON “AGREE”, THE INDIVIDUAL DOING SO HEREBY REPRESENTS AND WARRANTS THAT HE/SHE IS AUTHORIZED BY THE SUBSCRIBER TO BIND THE SUBSCRIBER TO THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND ONLY CLICK ON “AGREE” IF YOU AGREE THAT THE SUBSCRIBER SHALL BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.1 “End Users” means the Persons which Subscriber authorizes to use the Pulsa Platform.
1.2 “Fees” means the fees and other charges set forth on the Site or in the applicable agreement between Subscriber and Pulsa setting forth additional terms applicable to Subscriber’s access to the Pulsas Platform (each such agreement, a “SaaS Agreement”).
1.3 “Implementation” means the configuration of the Pulsa Platform and Pulsa Hardware for the Subscriber.
1.4 “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
1.5 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
1.6 “Pulsa Gateway” means a hardware device that acts as a communication gateway that captures information from and may connect to Pulsa Sensors.
1.7 “Pulsa Hardware” means Pulsa Gateways and Pulsa Sensors.
1.8 “Pulsa Platform” means the inventory management platform hosted and made available by Pulsa as a software-as-a-service to which Persons can connect Pulsa Sensors through one or more Pulsa Gateways, whether accessed by Subscriber through the Site or any other method of access as may be provided by Pulsa from time to time.
1.9 “Pulsa Sensor” means the Pulsa weight sensor or Pulsa pressure sensor, as applicable, in each case that are made available by Pulsa for purchase or for lease.
1.10 “Subscriber Data” means any and all data uploaded, transmitted to or imported into the Pulsa Platform by or on behalf of Subscriber, including without limitation data collected by Pulsa Sensors, via the Internet or any mobile application, or through any application programming interface.
2.1 Provision of Pulsa Platform. Subject to the terms and conditions of this Agreement, Subscriber shall have the right to access and use the Pulsa Platform during the Term, solely in the manner enabled by Pulsa and in accordance with all applicable limitations and documentation. Pulsa reserves the right to modify and update the features and functionality of the Pulsa Platform from time to time. Subscriber agrees to use the Pulsa Platform in compliance with all applicable laws, rules and regulations, and Subscriber agrees that Subscriber is solely responsible for its compliance with all such applicable laws, rules, and regulations.
2.2 Pulsa Hardware. Subscriber acknowledges that Pulsa Hardware is necessary for the Pulsa Platform to function. As between the parties, Subscriber is responsible for ensuring that all hardware, software and services that may be necessary or desirable for Subscriber’s use of the Pulsa Platform, including all Pulsa Hardware and sufficient Internet connectivity, has been purchased, leased or otherwise procured. Subscriber’s purchase or lease of Pulsa Hardware is subject in all respects to applicable terms and conditions entered into by Subscriber with Pulsa or an authorized reseller (as applicable) governing such transaction. As between the parties, Subscriber shall be solely responsible for the Implementation, including the set-up of all elements of Pulsa Hardware such that the Pulsa Sensors can successfully communicate with the Pulsa Gateway. Subscriber shall be solely responsible for maintaining the good working order and proper installation and positioning of all elements of the Pulsa Hardware.
2.3 Restrictions. Subscriber acknowledges that use of the Pulsa Platform is provided subject to the limitations contained herein and agrees not to use the Pulsa Platform for the benefit of any third party. Subscriber agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Pulsa Platform, make the Pulsa Platform available to any third party or use the Pulsa Platform on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Pulsa Platform or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Pulsa Platform, (iii) create derivative works based on the Pulsa Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Pulsa Platform or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Pulsa Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Pulsa Platform; (vii) use the Pulsa Platform to develop a competitive product offering; or (viii) use the Pulsa Platform with any sensors other than Pulsa Sensors. Subscriber may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Pulsa Platform, except solely to the extent as may be specifically enabled and authorized by Pulsa.
2.4 Suspension/Termination. Pulsa may terminate Subscriber’s or any End User’s access to or use of the Pulsa Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Pulsa, such action is necessary to prevent material errors or harm to any system or network, or to limit Pulsa’s liability; or (ii) Subscriber or any End User attempts to access or use the Pulsa Platform or Pulsa Hardware in an unauthorized manner, including without limitation any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
2.5 Accounts. The Pulsa Platform may provide Subscriber with the ability to generate account credentials to allow End Users to access the Pulsa Platform and to provision different levels of access for different End Users. Subscriber is responsible for the activities of any and all persons accessing and using the Pulsa Platform using any user name and password issued to Subscriber or generated in connection with a user name and password associated with Subscriber, including all End Users. Subscriber shall ensure that End Users’ use of the Pulsa Platform is consistent in all respects with this Agreement. Subscriber shall, and shall instruct its End Users to, use all reasonable means to secure user names and passwords, and shall promptly notify Pulsa if it suspects that any user name and password has been compromised. Pulsa reserves the right to limit the number of End Users or accounts permitted under this Agreement in Pulsa’s sole discretion.
2.6 Third Party Services and Modifications. The Pulsa Platform may include features or functionality that interoperate with online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between Pulsa and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Pulsa does not control. Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time. Any such modification, suspension or termination shall not affect any payment obligations under this Agreement and Pulsa shall have no liability with respect thereto. Without limiting the foregoing, Subscriber is responsible for ensuring that Subscriber’s use of the Pulsa Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto. Additionally, Subscriber acknowledges that (a) Pulsa may change, suspend, modify, or remove (collectively, “Changes”) certain functions and features within Pulsa Platform without prior notice to Subscriber, (b) that such Changes are not regarded as a breach by Pulsa of the terms of this Agreement, and (c) such Changes will be communicated by Pulsa to Subscriber as soon as commercially practicable.
2.7 Availability. Pulsa shall be responsible for operating the servers that make the Pulsa Platform available, and shall use commercially reasonable efforts to maintain availability of the Pulsa Platform. Subscriber acknowledges that no guarantee of continuous availability is made, and that the Pulsa Platform will be unavailable from time to time due to scheduled or emergency maintenance and other causes.
2.8 Control. Subscriber acknowledges and agrees that Pulsa has no obligation to monitor or edit the Subscriber Data, and that as between the parties Subscriber is solely responsible for the Subscriber Data.
2.10 Communications. Pulsa may communicate with the Subscriber or any End User using the email provided by the Subscriber or such End User. The Subscriber agrees, on its own behalf and on behalf of and such End User, to receive such communications, and that all agreements, notices, disclosures and other communications provided by Pulsa electronically satisfy any legal requirement that such communication be in writing.
4.1 Pulsa. As between the parties, Pulsa owns all right, title and interest (including all Intellectual Property Rights) in and to the Pulsa Platform (including without limitation all underlying source code, algorithms, models, features, or functionality) and any software, technology, materials and information (i) owned by Pulsa prior to the Effective Date or (ii) created, authored, developed, made, conceived, or reduced to practice by Pulsa (including without limitation in connection with any Subscriber requests or with Subscriber’s assistance) after the Effective Date (collectively, the “Pulsa Materials”). Nothing herein shall be construed to transfer ownership of the Pulsa Platform, the Pulsa Materials, or any Pulsa software, technology, materials, information or Intellectual Property Rights to Subscriber. Subscriber is not required to provide any ideas, feedback, or suggestions regarding any of Pulsa’s products or services (“Feedback”) to Pulsa. To the extent Subscriber does provide any Feedback to Pulsa, Subscriber acknowledges and agrees that Pulsa may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback on a perpetual, irrevocable and worldwide basis without payment of any royalties or other consideration to Subscriber and without attribution to Subscriber.
4.2 Subscriber. As between the parties, Subscriber owns all right, title and interest (including all Intellectual Property Rights) in and to the Subscriber Data and any software, technology, materials and information owned by Subscriber prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice solely by Subscriber after the Effective Date. Nothing herein shall be construed to transfer ownership of the Subscriber Data or any Subscriber software, technology, materials, information or Intellectual Property Rights to Pulsa.
5. TERM; TERMINATION
5.1 Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until the end of the subscription period defined in the SaaS Agreement or selected by Subscriber through the Site or the Pulsa Platform (the “Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for successive periods equal to the Initial Term, unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the renewal date (such renewal periods and the Initial Term, collectively the “Term”).
(a) Pulsa may terminate this Agreement for any or no reason upon written notice to Subscriber. In the event of such termination, Pulsa shall reimburse Subscriber pro rata for any fees pre-paid by Subscriber in respect of the remainder of the Term.
(b) Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within thirty (30) days (or ten (10) days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party.
(c) Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
5.3 Effect of Termination. All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 2.3, 2.5, 2.8, 2.9, 3 (with respect to accrued but unpaid Fees), 4, 5.3, 6, 7, 8, 9, 10 and 11 shall survive expiration or termination of this Agreement. Pulsa shall have no obligation to refund any Fees already paid by Subscriber as of the time of expiration or termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual. As of the Effective Date, each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
6.2 Subscriber. Subscriber represents and warrants to Pulsa that: (i) it has all right, title, and interest in and to the Subscriber Data necessary for its use in connection with the Pulsa Platform; (ii) it will not use the Pulsa Platform or Pulsa Hardware in a manner or in connection with any activity that would violate any law, rule or regulation; and (iii) the Subscriber Data (including the storage, reproduction, and use thereof as contemplated hereunder) does not and will not infringe upon, violate, or misappropriate the Intellectual Property Rights or confidential information of any third party.
6.3 Pulsa. Pulsa represents and warrants to Subscriber that the Pulsa Platform will perform in material compliance with the documentation on the Site describing the Pulsa Platform, provided that Subscriber’s sole remedy and Pulsa’s exclusive liability with respect to any breach of the representation and warranty set forth in this Section 6.3 is, at Pulsa’s election and subject to Subscriber’s provision of written notice describing such breach within five (5) days of the breach, (i) Pulsa’s repair of the Pulsa Platform to materially comply with such documentation within a reasonable time period or (ii )Pulsa’s termination of this Agreement and a pro-rated refund to Subscriber of any pre-paid fees.
7.1 Subscriber Indemnity. Subscriber agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Pulsa or its directors, officers or employees (“Pulsa Indemnitees”) arising out of or relating to (1) Subscriber’s gross negligence, willful misconduct, or alleged breach of any covenant, representation, or warranty of this Agreement, (2) any agreement, transaction or dealings between Subscriber and any customer or client of Subscriber (including where any such customer or client is an End User), or (3) any use by Subscriber of the Pulsa Hardware or Pulsa Platform, other than an IP Claim (any of the foregoing, a “Claim”). Subscriber will pay those amounts finally awarded by a court of competent jurisdiction against the Pulsa Indemnitees, or subject to the terms of Section 7.3, payable pursuant to a settlement agreement with respect to the Claim.
7.2 Pulsa Indemnity. Pulsa agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Subscriber or its Affiliates, or their directors, officers and employees (“Subscriber Indemnitees”), alleging that the Pulsa technology underlying the Pulsa Platform infringes or misappropriates any copyright or trade secret owned by such third party (an “IP Claim”), Pulsa will pay those amounts finally awarded by a court of competent jurisdiction against the Subscriber Indemnitees, or subject to the terms of Section 7.3, payable pursuant to a settlement agreement with respect to the IP Claim. If Pulsa, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Pulsa may, at its option, (a) obtain a license from such third party claimant that allows Subscriber to continue the use of the Pulsa Platform, (b) modify the Pulsa Platform so as to be non-infringing, or (c) if neither (a) nor (b) is available to Pulsa on commercially reasonable terms, terminate this Agreement upon written notice to Subscriber. Pulsa will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Pulsa Platform at the direction of Subscriber or any third party; (y) is based on the combination or use of the Pulsa Platform (or any component of either) with any software, hardware, system, method, device or materials not provided or required by Pulsa; or (z) results from Subscriber’s use of the Pulsa Platform in a manner that is inconsistent with its intended use or is in breach of this Agreement. This Section 7.2 sets forth the entire liability of Pulsa and the sole and exclusive remedy of Subscriber in the event of any claim that the Pulsa Platform infringes any third party Intellectual Property Right.
7.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 7.1 or Section 7.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall tender control of the defense and settlement of the claim to the other party (the “Indemnitor”) and cooperate with the Indemnitor, at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Claim or IP Claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 7.3 will not relieve the Indemnitor of its obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor may settle a Claim or IP Claim so long as any settlement (i) does not, without Indemnitee’s prior written approval, (x) involve the admission of any wrongdoing by any Indemnitee, (y) restrict any Indemnitee’s future actions, or (z) require any Indemnitee to take any action, including the payment of money, and (ii) includes a full release of the Indemnitees.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, Pulsa and ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. Pulsa and ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PULSA PLATFORM OR PULSA HARDWARE WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. Pulsa and ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THE RESULTS OF USE OF THE PULSA PLATFORM. USE OF the PULSA HARDWARE AND PULSA PLATFORM FOR INVENTORY MANAGEMENT IS NOT INTENDED TO BE A SUBSTITUTE FOR VISUAL INSPECTIONS AND FOR OTHERWISE EXERCISING DUE CARE
Each party shall keep confidential all information and materials provided or made available by the other party that is marked as confidential or proprietary or (for orally disclosed information) is identified as confidential or proprietary at the time of disclosure and confirmed in writing (including e-mail) as such within fifteen (15) days of the disclosure (“Confidential Information”). The features, functionality and content of the Pulsa Platform and Pulsa Hardware, any Pulsa Platform or Pulsa Hardware documentation, the Fees charged hereunder and any information regarding planned modifications or updates to the Pulsa Platform or Pulsa Hardware or other Pulsa products and services constitutes Confidential Information of Pulsa. Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party. Information or materials shall not constitute Confidential Information if it is: (i) public through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis or (iv) developed by the receiving party without reference to Confidential Information. The receiving party may disclose the Confidential Information of the disclosing party to the extent required by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders, and the receiving party shall reasonably cooperate with the disclosing party in such effort to the extent not prohibited by law. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 9, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
10. Limitation of Liability
PULSA and ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS SHALL NOT BE LIABLE IN CONNECTION WITH THE PULSA PLATFORM, PULSA HARDWARE OR THIS AGREEMENT FOR: (I) ANY LOSS OF USE, DAMAGE TO, SPOLIATION OR EXPIRATION OF, OR OTHER REDUCTION OF VALUE IN, ANY INVENTORY MONITORED or intended to be monitored in connection with THE USE OF THE PULSA PLATFORM OR PULSA HARDWARE; OR (ii) ANY LOST BUSINESS, REVENUE, OR PROFITS OR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, IN EACH CASE WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT PULSA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL PULSA’S LIABILITY AND DAMAGES IN CONNECTION WITH THIS AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAID TO PULSA UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREe THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 10 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY.
11.1 Relationship of the Parties. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever.
11.2 Assignment. Subscriber cannot assign any of its rights or obligations under this Agreement without the prior written consent of Pulsa, except that Subscriber may assign all of its rights and obligations under this Agreement without the consent of Pulsa as part of any merger (by operation of law or otherwise), consolidation, reorganization or change in control of Subscriber or the sale of all or substantially all of Subscriber’s assets related to this Agreement or similar transaction. Subject to the foregoing, this Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
11.3 Force Majeure. Pulsa shall not be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11.4 Notices. All notices sent by the Subscriber to Pulsa under this Agreement shall be sent in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to the Pulsa address noted in the preamble. Notices shall be sent to the attention of the “Legal Department.” All such notices shall be presumed to have been given three (3) business days following deposit in the mail as set forth in the foregoing. Pulsa may send notices to the Subscriber by electronic means, either through the Pulsa Platform or using the e-mail address associated with the Subscriber’s account, which notices shall be deemed duly delivered once sent
11.5 Amendments. An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties or is presented by Pulsa electronically through the Site or the Pulsa Platform and accepted in “click-to-agree” form by Subscriber. No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
11.6 Construction. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
11.7 Severability; Waiver; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
11.8 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the state and federal courts in San Francisco, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
11.9 Entire Agreement. This Agreement (and any SaaS Agreement, to the extent applicable) constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.