Terms of sale

These Terms of Sale (referred to herein as this “Agreement”), is by and between KOGNIZ, INC., a Delaware corporation with offices located at 225 Miller Avenue, Mill Valley, CA 94941 (“Kogniz”) and the client (“Client”) named on the attached ordering document (each, an “Invoice”). This Agreement is effective as of the date set forth on the Invoice (the “Effective Date”). Kogniz and Client maybe referred to herein collectively as the “Parties” or individually as a“Party.”

WHEREAS, Kogniz provides the Kogniz edge device (the “Kogniz Product”) and access to the Kogniz software-as-a-service offering (the “Kogniz Platform” and, together with the Kogniz Product, the “Services”) to its Clients; and

WHEREAS, Client desires to access the Services, and Kogniz desires to provide Client access to the Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

01

Definitions

(a)  “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.

(b)  “Client Data” means, other than Usage Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.

(c)  “Documentation” means Kogniz’s user manuals relating to the Services provided by Kogniz to Client either electronically or in hard copy form.

(d)  “Kogniz IP” means the Product, the Platform, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, Kogniz IP includes Usage Data and any information, data, or other content derived from Kogniz’s monitoring of Client’s access to or use of the Services, but does not include Client Data.

(e)  “Personally Identifiable Information” or “PII” means any information that, either individually or when combined with other information, could be used to distinguish or trace an individual’s identity, such as their name, address, telephone number, social security number, date and place of birth, mother’s maiden name, account information, or biometric records, including information regarding an individual’s education, financial transactions, medical history, criminal history and employment history, including all information given protected status under any applicable privacy law.

(f)  “Third-Party Products” means any third-party products provided with or incorporated into the Services.

(g)  “Usage Data” means data and information related to Client’s use of the Services that is used by Kogniz (i) for compliance purposes; or (ii) in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision, operation and improvement of the Services.

02

Access and use

(a)  Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with all the terms and conditions of this Agreement, Kogniz hereby grants Client a non-exclusive, non-transferable right to access and use the Services during the Subscription Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal business purposes. Kogniz shall provide to Client the necessary passwords and network links or connections to allow Client to access the Services. Client is responsible for maintaining the confidentiality of its passwords or other credentials and login information (collectively, “Passwords”), and Client agrees that Kogniz has no liability with respect to the use of any Passwords. Client must notify Kogniz immediately if Client has reason to believe that the security of Client’s account has been compromised or if the Services have been accessed by any unauthorized individuals.

(b)  Documentation License. Subject to the terms and conditions contained in this Agreement, Kogniz hereby grants to Client a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation during the Subscription Term solely for Client’s internal business purposes in connection with its use of the Services.

(c)  Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property, privacy or other right of any person, or that violates any applicable law (including, but not limited to, data protection and privacy laws in Client’s jurisdiction).

(d)  Collection, Processing and Use of Client Data. Client acknowledges and agrees that (i) it is solely responsible for complying with all applicable law when using the Services; (ii) it is solely responsible to obtain consent (including explicit consent), if any, required by its collection, processing and use of the Client Data; (iii) use of the Services may affect individuals’ privacy and data protection rights; and (iv) it and its AuthorizedUsers shall not include any PII in the Client Data.  Client is solely responsible for developing, maintaining, and enforcing a policy regarding the use of Client Data and shall make such policy publicly available via any website owned or operated by Client.

(e)  Reservation of Rights. Kogniz reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Kogniz IP.

(f)  Suspension. Notwithstanding anything to the contrary in this Agreement, Kogniz may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) Kogniz reasonably determines that (A) there is a threat or attack on any of the Kogniz IP; (B) Client’s or any Authorized User’s use of the Kogniz IP disrupts or poses a security risk to the Kogniz IP or to any other Client or vendor of Kogniz; (C) Client, or any Authorized User, is using the Kogniz IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Kogniz’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) for Client’s material breach of this Agreement; or (iii) in accordance with Section 5(a) (any such suspension described in sub clause (i),(ii), or (iii), a “Service Suspension”). Kogniz shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Kogniz will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.

(g)  Usage Data. Notwithstanding anything to the contrary in this Agreement, Kogniz may monitor Client’s use of the Services and collect and compile Usage Data. As between Kogniz and Client, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by Kogniz. Client agrees that Kogniz may (i) make Usage Data publicly available in compliance with applicable law, and (ii) use Usage Data to the extent and in the manner permitted under applicable law.

03

Client Responsibilities.

(a)  General. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

(b)  Third-Party Products. Kogniz may from time to time make Third-Party Products available to Client. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Client does not agree to abide by the applicable terms for any such Third-Party Products, then Client should not install or use such Third-Party Products.

(c)  Audit Rights.  Kogniz hereby retains the right to audit the records of Client in order to verify Client’s compliance with the terms of this Agreement. Such audit may be undertaken upon 5 days prior notice and Client shall provide all information and reasonable assistance to Kogniz to undertake the audit.

04

Applicability of EU Data Processing Agreement.

Client acknowledges and agrees that if Client uses (or instructs, permits, or enables any of Client’s Authorized Users to use) any of the Services to collect, retrieve, send, store, host, transfer, or otherwise process or use any Client Data relating to any natural persons located in the European Union (including, but not limited to, PII), then (a) such activities shall be subject to the EU Data Processing Addendum, which is hereby incorporated into this Agreement by reference, and (b) Client shall comply with all applicable European Union privacy and data processing laws applicable to such activities.

05

Fees and Payment.

(a)  Fees. During the Subscription Term (as defined below), Client shall pay Kogniz the fees (“Fees”) as set forth in the Invoice without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in Invoice. If Client fails to make any payment when due, without limiting Kogniz’s other rights and remedies, if such failure continues for sixty (60) days or more, Kogniz may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

(b)  Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Kogniz’s income.

06

Confidential Information.

From time to time during the Subscription Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

07

Intellectual Property Ownership; Feedback.

(a)  Kogniz IP. Client acknowledges that, as between Client and Kogniz, Kogniz owns all right, title, and interest, including all intellectual property rights, in and to the Kogniz IP and, with respect to Third-Party Products, the applicable third-party Kognizs own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.

(b)  Client Data. Kogniz acknowledges that, as between Kogniz and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Kogniz a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Kogniz to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Usage Data.

(c)  Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Kogniz by mail, email, telephone, or otherwise, suggesting or recommending changes to the Kogniz IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Kogniz is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Kogniz on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Kogniz is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Kogniz is not required to use any Feedback.

08

Warranty and Warranty Disclaimer.

(a)  Product Warranty. Kogniz warrants that the Kogniz Product will conform in all material respects to the Kogniz Product Documentation for a period of ninety (90) days from the Effective Date of the Invoice under which such Kogniz Product is purchased by Client (the “Kogniz Product Warranty Period”).  If the Kogniz Product fails to conform to this warranty during the Kogniz Product Warranty Period, Kogniz will, at its sole discretion, repair or replace any defective Kogniz Product.  Repair or replacement will be made with a new or refurbished product or components, at Kogniz’s sole discretion.  This warranty does not cover: (i) Kogniz Products that have been subject to (A) modifications, alterations, tampering, or improper maintenance or repair; (B) handling, storage, installation, testing or use not in accordance with the applicable Kogniz Product Documentation; or (C) abuse or misuse of the Kogniz Product.

(b)  Platform Warranty.  Kogniz warrants that during the Subscription Term, the Kogniz Platform will conform in all material respects to the Kogniz Platform Documentation. Kogniz does not make any representations or guarantees regarding uptime or availability of the Kogniz Platform.

(c)  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTIONS 8(a) AND 8(b), THE KOGNIZ IP IS PROVIDED “AS IS” AND KOGNIZ HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KOGNIZ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), KOGNIZ MAKES NO WARRANTY OF ANY KIND THAT THE KOGNIZ IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, SEND TIMELY ALERTS TO CLIENT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

09

Indemnification.

(a)  Kogniz Indemnification. (i)  Kogniz shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Client promptly notifies Kogniz in writing of the claim, cooperates with Kogniz, and allows Kogniz sole authority to control the defense and settlement of such claim. (ii)  If such a claim is made or appears possible, Client agrees to permit Kogniz, at Kogniz’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If Kogniz determines that neither alternative is reasonably available, Kogniz may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. (iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Kogniz or authorized by Kogniz in writing; (B) modifications to the Services not made by Kogniz; or (C) Client Data.

(b)  Client Indemnification. Client shall indemnify, hold harmless, and, at Kogniz’s option, defend Kogniz from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, and any Third-Party Claims based on Client’s or any Authorized User’s (i) violation of applicable law, including, without limitation, applicable privacy and/or data protection laws; (ii) negligence or willful misconduct; (iii) use of the Services in a manner not authorized by this Agreement; or (iv) modifications to the Services made or authorized by Client, provided that Client may not settle any Third-Party Claim against Kogniz unless Kogniz consents to such settlement, and further provided that Kogniz will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c)  Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND KOGNIZ’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10

Limitations of Liability.

IN NO EVENT WILL KOGNIZ BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER KOGNIZ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL KOGNIZ’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO KOGNIZ UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, KOGNIZ’S AGGREGATE LIABILITY ARISING OUT OF ITS INDEMNIFICATION OBLIGATIONS HEREUNDER SHALL NOT EXCEED TWO (2) TIMES THE TOTAL AMOUNTS PAID TO KOGNIZ UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TOTHE CLAIM.

11

Term and Termination.

(a)  Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the term set forth in the Invoice (the “Subscription Term”).

(b)  Termination. In addition to any other express termination right set forth in this Agreement: (i)  Kogniz may terminate this Agreement, effective on written notice to Client, if Client: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Kogniz’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c), Section 2(d) or (ii)  either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c)  Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the Services and, without limiting Client’s obligations under Section 6, Client shall delete, destroy, or return all copies of the Kogniz Confidential Information and certify in writing to Kogniz that the Kogniz Confidential Information has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund.

(d)  Survival. This Section 11(d) and Sections 1, 2(c), 5, 6, 7, 8(b), 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

12

Miscellaneous.

(a)  Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, if applicable, the Data Processing Agreement; (ii) second, this Agreement; and (iii) third, any other documents incorporated herein by reference.

(b)  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c)  Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d)  Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e)  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f)  Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g)  Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Kogniz. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(h)  Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.

(i)  Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Client, Sections 2(c)and 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(j)  Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.