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Bunchball Nitro for Salesforce Subscription Agreement
IMPORTANT - READ CAREFULLY: This Bunchball Nitro for Salesforce Subscription Agreement (the “Agreement”) is a legal agreement between you (an individual or a single entity) and Bunchball, Inc. (“BUNCHBALL”). WHEN YOU CLICK THE “I ACCEPT” BUTTON DURING THE ORDERING PROCESS, OR IF YOU OTHERWISE ACCESS OR USE THE BUNCHBALL Nitro for Salesforce ONLINE SERVICE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THIS AGREEMENT INCLUDES THE TERMS AND CONDITIONS BELOW AND ANY DOCUMENTS OR MATERIALS REFERENCED HEREIN. THE AGREEMENT GOVERNS YOUR USE OF THE BUNCHBALL Nitro for Salesforce ONLINE SERVICE DESIGNED TO BE ACCESSED AND USED IN COMBINATION WITH CERTAIN SALESFORCE.COM ONLINE SERVICES (THE “SERVICE”). SUCH SALESFORCE.COM ONLINE SERVICES ARE PROVIDED IN CONNECTION WITH SALESFORCE.COM’S WEB-BASED ON-DEMAND PLATFORM (THE “PLATFORM”). In this Agreement, the terms “you” or “your” refer to the entity you represent. The terms “we,” “us,” “our” or “ours” refer to Bunchball. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY FOR WHICH YOU ARE ENTERING INTO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT ACCESS OR USE THE SERVICE IN ANY WAY. In such case, you will have no right to use the Service. Bunchball, with its principal place of business located at 355 Santana Row, Suite 2020, San Jose, CA 95128, is willing to grant you access to the Service on the condition that you accept all the terms of this Agreement. After you sign a Bunchball Nitro for Salesforce Order Form (or click the “I ACCEPT” button if ordering online), we will provide you with access to and use of the Service. This Agreement begins on the date you submit a signed Order Form to Bunchball, or click the “I ACCEPT” button (the “Effective Date”). The Initial Term will be the period of time specified on the Order Form. Upon expiration of the Initial Term, this Agreement will automatically renew for successive one year periods at our then-current fees unless you notify us in writing forty five days prior to expiration of the Initial Term, or any successive renewal term, of your election not to renew.
1. Your Access to the Service. 1.1 Provision of the Service. Subject to the terms of this Agreement, we make the Service available to you during the Initial Term and any renewal terms (collectively, the “Subscription Term”), solely for your own internal business purposes. You agree that your purchase and use of the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Bunchball with respect to future functionality or features. You download the Service from the Salesforce AppExchange and the Service will be installed in your instance of Salesforce. Notwithstanding the foregoing, you understand and agree that this Agreement is solely between you and Bunchball and that you are not entering into a contractual agreement with Salesforce.com (“SFDC”). In providing the Service, we will not use or modify any hardcopy or electronic data or information you submit to the Service, including any data or information transmitted or processed from your instance of Salesforce CRM (collectively, “Your Data”) except as otherwise set forth in this Agreement and Bunchball’s online help text (the “Help Text”). 1.2 Purchase of Subscriptions. You will purchase a subscription to the Service (each, a “Subscription”) for each individual (i) you authorize to use or access the Service and to whom you have supplied an identification and password; or (ii) whose information is stored on the Service. Each individual described in the preceding sentence is referred to in this Agreement as a “User.” Users may include your employees, consultants, representatives and agents. You are responsible for all activity that occurs in your User accounts and for your Users’ compliance with this Agreement. You shall: (i) have sole responsibility for the accuracy, quality, legality, reliability and appropriateness of all Your Data; and (ii) prevent unauthorized access to, or use of, the Service, and notify Bunchball promptly of any such unauthorized access or use. The number of Subscriptions purchased cannot be decreased during a Subscription Term. 1.3 Additional Users. You may reassign subscriptions to the Service to new Users that replace former Users who no longer use or need access to the Service. 1.4 Use Guidelines. You shall use the Service solely for your own internal business purposes during the Subscription Term. You shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign (except as permitted in Section 10.6) , distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violate any third-party’s privacy or intellectual property rights; (iv) upload to the Service or use the Service to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or any data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks. 1.5 Restrictions. You shall not modify, extend, customize, or enhance the functionality of the Service without the express written consent of Bunchball. To be clear, the Service does NOT include access to Bunchball’s gamification APIs. 1.6 Consulting Services. In addition to Subscriptions to the Service, you may purchase consulting, implementation, technical services or additional set up services from Bunchball under this Agreement (collectively “Consulting Services”). For purposes of this Agreement, Consulting Services are not included within the definition of the “Service.” Consulting Services may be described more fully in an Order Form. The Order Form shall be governed by and subject to the terms of this Agreement and shall incorporate this Agreement by reference.
2. Fees and Payment. You agree to pay the fees set forth on a separately executed order document (“Order Form”). Payment terms shall be specified therein. Except as otherwise specified herein or in an amendment hereto, all fees are quoted and payable in US dollars, payment obligations are non-cancelable, and fees paid are non-refundable. Service fees are based on Subscriptions purchased and not actual usage. You are responsible for providing complete and accurate billing, address and contact information to us and for maintaining such information in the Service. If you believe a particular charge is incorrect, you must contact us in writing within 60 days of the payment date to be eligible to receive any credit. If your account is 30 days or more overdue, then, in addition to any of our other rights or remedies, we reserve the right to suspend your access to the Service without liability to you until you pay all amounts in full. Our fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder, excluding taxes based on Bunchball's net income or property.
3. Proprietary Rights. 3.1 License. Subject to the terms of this Agreement, we grant you a nonexclusive, nontransferable (except as permitted pursuant to Section 10.6) license to access and use the Service during the Subscription Term solely for your own internal business purposes. For your part, you grant us a nonexclusive, nontransferable license to access and use Your Data to provide the Service and any agreed upon Consulting Services to you and your Users. You hereby consent to our use of Your Data to provide the Service and Consulting Services in accordance with this Agreement. In addition, we shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information you or your User provide relating to the features, functionality or operation of the Service, , and to use, reproduce, prepare derivative works of, distribute, sell and otherwise commercially exploit Your Data on an aggregate, non-individual, and non-personally identifiable basis. 3.2 Reservation of Rights. You agree that this Agreement constitutes a license of rights to use the Service and is not a sale of any rights in or to the Service or the underlying software. Accordingly, you further agree that you are a licensee and not a purchaser of rights to the Service or the underlying software. You agree that: (i) except for the limited rights expressly granted to you under this Agreement, Bunchball reserves all rights, title and interest in and to the Service, the underlying software, the Help Text and all any materials we provide to you as part of, or in the course of providing the Service or any Consulting Services (collectively with the Service and the Help Text, the “Licensed Materials”) including all intellectual property rights inherent therein; (ii) no rights are granted to you other than as expressly set forth in this Agreement; (iii) any configuration or deployment of the Service does not affect or diminish Bunchball’s or its licensors’ rights, title, and interest in and to the Licensed Materials; and (iv) nothing in this Agreement shall limit in any way Bunchball’s right to develop, use, license, create derivative works of, or otherwise exploit the Licensed Materials, or to permit third parties to do so. 3.3 License Restrictions. You shall not (i) modify, copy, display, republish or create derivative works based on the Service, the underlying software or any other Licensed Material; (ii) frame, scrape, link to or mirror any content forming part of the Service, other than on your own intranets or otherwise for your own internal business purposes; (iii) reverse engineer the Service or the underlying software; or (iv) access the Service in order to (A) build a competitive product or service, (B) build a product using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service. 3.4 Your Data. As between Bunchball and you, you exclusively own all rights, title and interest in and to all Your Data. Bunchball shall not access your User accounts, including Your Data, except to provide the Service under this Agreement, to respond to service or technical problems, to confirm compliance with the terms of this Agreement, or otherwise at your direction or request, nor shall Bunchball disclose Your Data to any third party other than third parties that have a legitimate need to know and are bound to protect the confidentiality of Your Data. Neither Bunchball nor Salesforce.com shall be responsible or liable for the deletion, alteration, destruction, damage, loss or failure to store any of Your Data, except that, subject to all limitations set forth in this Agreement, we will be responsible or liable only to the extent that any deletion, alteration, destruction, damage, loss or failure to store Your Data is directly and proximately caused by Bunchball’s actions. You understand and agree that Bunchball may use, reproduce, prepare derivative works of, distribute, sell and otherwise commercially exploit Your Data on an aggregate, non-individual, and non-personally identifiable basis.
4. Confidentiality. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), orally or in writing that reasonably should be understood to be confidential, including the Service, the Help Text, other Licensed Materials, business plans, technical information and business processes. The obligations in this Section 4 shall not apply to information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure hereunder or is lawfully received from a third party by the Receiving Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality, or (c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party's prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner it protects the confidentiality of its own proprietary and confidential information (but in no event using less than reasonable care). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
In addition, you shall permit access to the Service, the Help Text, and the other Licensed Materials only by Users who have a need to know in connection with the license rights granted under this Agreement. You agree to secure and protect the Licensed Materials in a manner consistent with the maintenance of Bunchball’s rights therein, and in accordance with the terms of this Agreement, and to take appropriate action by instruction or agreement with your Users to satisfy your obligations hereunder. You shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the Service or any of the other Licensed Materials to others. You shall cooperate with and assist Bunchball in identifying and preventing any unauthorized use, copying or disclosure of the Service or other Licensed Materials. Without limitation of the foregoing, you shall advise Bunchball immediately in the event you learn or have reason to believe that any person has violated or intends to violate the confidentiality of the Service or other Licensed Materials or Bunchball’s proprietary rights, and you will, at your expense, cooperate with Bunchball in seeking injunctive or other equitable relief in the name of, at Bunchball’s sole discretion, either you or Bunchball, against any such person.
5. Limited Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. We represent and warrant that we will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. You represent and warrant that: (a) you own or otherwise have sufficient rights in Your Data to grant Bunchball the licenses you grant in this Agreement; (b) you have not falsely identified yourself nor provided any false information to gain access to the Service; and (c) all billing and contact information provided by you is true and correct. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BUNCHBALL AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, BUNCHBALL AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY INCLUDED CONTENT. WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
6. Indemnification. Subject to this Agreement, Bunchball will defend and settle any claims, demands, suits or proceedings made or brought against you by a third party alleging that your use of the Service as contemplated under this Agreement directly infringes a U.S. patent, copyright, or trademark of a third party or misappropriates such third party’s trade secrets (“Claims”). Bunchball will pay any damages or costs finally awarded under any Claim. Upon receiving notice of a Claim, you must: (a) give Bunchball prompt written notice of the Claim; (b) give Bunchball sole control of the defense and settlement of the Claim (provided that Bunchball may not settle any Claim without your consent (such consent not to be unreasonably withheld, conditioned, or delayed) unless the settlement either unconditionally releases you of all liability or does not involve any monetary damages payable by you, restriction on your freedom to operate, or admission of liability by you); and (c) provide Bunchball, at its cost, all reasonable assistance in the defense or settlement of the Claim. Bunchball’s indemnification obligation will be offset to the extent its ability to defend or settle a claim is jeopardized by your failure to comply with the preceding sentence. Bunchball shall have no indemnification obligation for Claims arising from the combination of the Service with any of your products, services, hardware or business processes, or use of the Service by you other than in accordance with this Agreement or the Help Text. If the Service is held to be infringing, Bunchball may elect, at its expense to (i) replace or modify the Service as appropriate, (ii) obtain a license for you to continue using the Service, (iii) replace the Service with a functionally equivalent service; or (iv) terminate the Service and refund any prepaid, unused fees. The foregoing shall be Bunchball's entire liability and your exclusive remedy for any claim of intellectual property infringement. Subject to this Agreement, you shall defend and settle any Claims made or brought against Bunchball by a third party alleging that Your Data, or your use of the Service in violation of this Agreement, infringes or otherwise violates such third party’s property, privacy or other rights, or violates any applicable law. Upon receiving notice of a Claim, Bunchball shall (a) give you prompt written notice of the Claim; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally releases Bunchball of all liability or does not involve any monetary damages payable by Bunchball, restriction on Bunchball’s freedom to operate, or admission of liability by Bunchball); and (c) provide to you, at your cost, all reasonable assistance in the defense or settlement of such Claim. Your indemnification obligation shall be offset to the extent your ability to defend or settle a claim is jeopardized by Bunchball’s failure to comply with the preceding sentence.
7. Limitation of Liability. EXCEPT FOR YOUR BREACH OF YOUR OBLIGATIONS UNDER SECTIONS 1.4, 3, OR 4, OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6 ABOVE, IN NO EVENT SHALL EITHER PARTY'S OR ITS LICENSORS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM YOU IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS LICENSORS FOR ANY LOST PROFITS OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation shall not apply to (a) liability for death or personal injury to the extent that applicable law prohibits such limitation; (b) your breach of sections 1.4, 3 or 4; or (c) the extent such damages are awarded under a Claim subject to indemnification under section 6. Furthermore, certain states and jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
8. Term; Termination. 8.1 Term of Agreement. This Agreement commences on the Effective Date and continues until the expiration or termination of all Subscriptions granted in accordance with this Agreement. 8.2 Termination for Cause. A party may terminate this Agreement for cause: (i) if the other party is in material breach under this Agreement and fails to cure such breach within 30 days of receipt of written notice of such material breach from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceeding is not favorably resolved within 60 days. This Agreement constitutes an executory contract in accordance with Section 365 of the U.S. Bankruptcy Code. If you file or have filed against you by a third party any petition under the U.S. Bankruptcy Code, you must either assume or reject this Agreement. Upon an assumption, you shall comply with 11 U.S.C. § 365(b)(1); upon a rejection, all of your rights hereunder will terminate. Upon any termination for cause by you, Bunchball shall refund to you any prepaid fees covering the remainder of the Subscription Term after the date of termination. Upon any termination for cause by Bunchball, your right to access or use Your Data in the Service immediately ceases. 8.3 Return of Your Data. Upon request by you to Bunchball or to SFDC, made within 30 days after the effective date of termination, Bunchball or SFDC, as applicable, will make available to you for download a file of Your Data in comma separated value (.csv) format, provided, however, that Bunchball shall have sole responsibility for any modifications to Your Data made in Bunchball’s online service and Bunchball shall be solely responsible for the return of Your Data, as modified. After such 30-day period, neither Bunchball nor SFDC shall have any obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, be entitled to delete all of Your Data in its systems or otherwise in its possession or under its control. 8.4 Surviving Provisions. Termination shall not relieve you of your obligation to pay any fees accrued or payable to Bunchball under this Agreement prior to the effective date of termination, and you shall immediately pay to Bunchball all such fees upon the effective date of termination. In addition, the following provisions shall survive any termination or expiration of this Agreement: Sections 1.4, 1.5, 2, 3.2, 3.3, 3.4, 4, 6, 7, 8.3, 8.4, 9 and 10.
9. U.S. Government Restricted Rights. The Service is a “commercial item,” as that term is defined in 48 C.F.R. 2.101, and involves the use of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202‑1 through 227.7202‑4, all United States Government Users and other end-users acquire Subscriptions to the Service only as a “commercial item” and only with those rights that are granted to all other end-users pursuant to the terms and conditions of this Agreement.
10. General Provisions. 10.1 Privacy & Security; Disclosure. You agree to comply with our privacy and security policies which may be viewed at http://www.Bunchball.com. We reserve the right to modify our privacy and security policies in our reasonable discretion from time to time. Because the Service is a hosted, online application, we occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. We may disclose the fact that you are a customer as well as the edition of the Service that you are using. 10.2 Modification to Terms. We reserve the right to modify the terms and conditions of this Agreement or our policies relating to the Service at any time, effective upon the commencement of any renewal term. You are responsible for regularly reviewing this Agreement. CONTINUED USE OF THE SERVICE AFTER ANY SUCH CHANGES SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES. 10.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 10.4 Notice. For notices that are directed to you as part of Bunchball’s general customer base, we may give notice by means of a general notice on the Service, by electronic mail to your e-mail address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address listed in our account information. Such notice shall be deemed to have been given 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). All notices specifically required to be sent under this Agreement shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile; (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to your address on record in Bunchball’s account information or if notice to Bunchball at its principal office indicated above for the attention of Chief Financial Officer, or to such other address or individual as the parties may specify by written notice to the other party in accordance with this Section 10.4. 10.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 10.6 No Assignment. You may not assign any of your rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining our written consent, except that you may assign the Agreement without our consent (i) to an affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of your assets not involving a direct competitor of Bunchball; provided that you provide prompt written notice to us of such assignment. Any attempt to assign your rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns. 10.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. 10.8 Governing Law. This Agreement shall be governed exclusively by the laws of the state of California, without regard to conflicts of laws rules. The state and federal courts located in Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. 10.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No terms or conditions set forth on any purchase order or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.
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