GreenAppy, LLC
END-USER SERVICES SUBSCRIPTION AGREEMENT
This Services Subscription Agreement (the “Terms” and collectively with any and all Sales Quotations, the “Agreement”) is by and between GreenAppy, LLC, with business offices located at 15333 Culver Drive, #34-2101, Irvine, CA 92604, (“GreenAppy”) and the customer set forth on the Sales Quotation (the “Subscriber”). This Agreement shall be effective on the date provided on the Sales Quotation (“Effective Date”). Each of GreenAppy and Subscriber is a “Party” and together they are the “Parties”.
WHEREAS, GreenAppy has developed and maintains an integrated suite of Internet-based services allowing subscribers to easily and efficiently manage various aspects of an outbreak, including management, investigation, tracking and follow-up (“NebulaNow”). NebulaNow is described in greater detail on GreenAppy’s web site, www.nebulanow.com (the “Site”). NebulaNow is for use by Salesforce.com (“SFDC”) customers through the SFDC AppExchange.
WHEREAS, Subscriber wishes to utilize NebulaNow, which is provided through SFDC in connection with Subscriber’s organization, and GreenAppy has agreed to provide NebulaNow pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1. License Grant.
a) License to Use NebulaNow. Subject to and conditioned upon Subscriber’s compliance with these Terms, GreenAppy hereby grants to Subscriber a nonexclusive, nontransferable, non-sublicensable, worldwide license (the “License”) to access and use NebulaNow in accordance with this Agreement. All rights not expressly granted to Subscriber under the License are reserved by GreenAppy. The License granted to Subscriber pursuant to this Agreement will permit use of NebulaNow by Subscriber, including its employees, contractors, and agents (“End-Users”) as further specified in an executed sales quotation entered into by and between the Parties (“Sales Quotation”). Subscriber must have previously secured the necessary SFDC licenses in order to access and use NebulaNow as further set forth on the applicable Sales Quotation. Any Subscriber Affiliate may also be added by Subscriber as a registered End-User under this Agreement. An “Affiliate”, with respect to either Party, shall mean any entity, including and without limitation, any individual, corporation, company, partnership, limited liability company, or group, that directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Party. SUBSCRIBER SHALL BE FULLY RESPONSIBLE FOR ALL ACTS AND OMISSIONS OF ALL SUBSCRIBER AFFILIATES AND END-USERS IN CONNECTION WITH THE USE OF NEBULANOW OR OTHERWISE UNDER THIS AGREEMENT.
b) Password. Each End-User will be issued an individual user name and password or be designated as an End-User through SFDC. The License to use NebulaNow, and any associated passwords, may not be shared. Any unauthorized access, use of passwords or NebulaNow, or other abuse or impermissible activity on GreenAppy’s Site or in connection with NebulaNow may result in immediate suspension or termination of End-User accounts pursuant to Section 9 of this Agreement. Subscriber will: (i) notify GreenAppy immediately of any unauthorized use of any password(s) or account(s) or any other known or suspected breach of security; and (ii) report to GreenAppy immediately and use reasonable efforts to stop immediately any copying or distribution of Content (as defined below) that is known or suspected by Subscriber’s End-Users.
c) Limitations on Use. The content made available by GreenAppy on the Site and within NebulaNow (the “Content”) is for use only by Subscriber and its assigned End-Users. Except as permitted by this Agreement, the Content may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or used to create any derivative works. Subscribers may not use any network monitoring or discovery software to determine the Site’s or NebulaNow’s architecture, or extract information about usage or individual identities of users. Subscriber may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Site, NebulaNow, or its Content, without first receiving GreenAppy’s prior written consent. Subscriber may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any non-End-User third party NebulaNow or the Content in any way; (ii) modify or make derivative works based upon the Site, NebulaNow, or the Content; (iii) create Internet "links" to the Site or NebulaNow or "frame" or "mirror" any Content on any other server or wireless or Internet-based device. Subscriber may use the Site and NebulaNow only for its internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Site, NebulaNow, or the data contained therein; or (v) attempt to gain unauthorized access to the Site, NebulaNow, or its related systems or networks.
2. NebulaNow Details.
a) NebulaNow Description. GreenAppy offers a service that is designed to help Local Health Departments easily and efficiently manage outbreaks using SFDC. Subscriber acknowledges that SFDC is a third-party service provider and GreenAppy makes no promises, representations, or warranties about the functioning, operability, or access to the SFDC service. In addition to any direct licenses that Subscriber maintains directly with SFDC, and because GreenAppy operates NebulaNow as an independent software vendor (“ISV”) partner of SFDC, Subscriber agrees to the terms and conditions as set forth in the SFDC AppExchange User Agreement located at https://appexchange.salesforce.com/appxUserAgreement. The terms in Subscriber’s direct agreement with SFDC will govern in the event of any conflict with the terms in the aforementioned SFDC AppExchange User Agreement. GreenAppy will use good faith efforts to notify Subscribers, at the earliest possible opportunity, of any material changes implemented by SFDC that materially impacts Subscriber’s access to and use of NebulaNow. Subscriber is responsible for regularly checking with its third-party service providers to keep current on changes and updates to those third-party services that Subscriber uses.
b) Professional and Support Services. During the term of this Agreement, GreenAppy may provide maintenance and support services for NebulaNow (“Support Services”) as set forth in the applicable Sales Quotation. In addition, GreenAppy may offer certain professional services, including implementation services, (“Professional Services”) as set forth in the applicable Sales Quotation. In the event Subscriber wishes to add Support Services and/or Professional Services to its license, Subscriber shall incur additional charges as outlined in the applicable Sales Quotation which shall be invoiced to Subscriber pursuant to Section 3 of this Agreement.
3. Fees and Payment.
a) Subscription Fees. Subscriber shall pay GreenAppy the fees for use of NebulaNow (the “Subscription Fees”) and any other fees (“Additional Fees” and together with the Subscription Fees, the “Fees”) set forth in the applicable Sales Quotation.
b) Payment of Subscription Fees. Subscriber shall pay GreenAppy the Fees in annual installments (as set forth on the Sales Quotation) within thirty (30) days of Subscriber’s receipt of invoice.
c) Taxes and Duties. The Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on GreenAppy’s income.
d) Payment and Billing Information. Subscriber agrees to provide GreenAppy with complete and accurate billing and contact information at all times. This information includes Subscriber’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. All fees are payable in U.S. dollars. GreenAppy reserves the right to determine acceptable methods of payment for the use of NebulaNow. If Subscriber believes any bill is incorrect, Subscriber must contact GreenAppy in writing within 90 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Subscriber will pay the undisputed portion of the invoice as set forth herein, and Subscriber and GreenAppy will cooperate to promptly resolve the invoice dispute.
4. Performance Criteria.
a) SFDC Performance. Subscriber may reference the following SFDC page for real-time information on system performance and security: https://trust.salesforce.com/.
b) Commencement of Services. The performance of NebulaNow outlined herein will only commence upon the launch of service and after full acceptance by Subscriber and payment in full of the initial Subscription Fee. There is an initial implementation period during which there will be no availability, followed by a test period of limited availability. For initial launch of NebulaNow, and where required, GreenAppy may work with Subscriber in a SFDC Sandbox or SFDC Development Organization to test NebulaNow prior to migrating NebulaNow to a SFDC Production Organization.
5. GreenAppy References to Subscriber. Upon execution of this Agreement, GreenAppy may make references to Subscriber and Subscriber’s URL and may use Subscriber’s designated trademark and logo for the limited purpose of publishing it on GreenAppy’s current list of subscribers located on the GreenAppy Site. GreenAppy may also respond to any inquiry regarding whether Subscriber is a licensee and user of NebulaNow.
6. Amendments. The Parties agree that, in order to continually improve its NebulaNow, GreenAppy may, from time to time, amend its Site, NebulaNow, Site features, Site functionality, and these Terms in its discretion and will make commercially reasonable efforts to notify Subscribers of said amendments. Subscriber is encouraged to continually check the Site and these Terms for notices on updates and improvements.
7. GreenAppy Proprietary Information. The Site, NebulaNow, and all Content (“GreenAppy IP”) are owned or licensed by GreenAppy and protected by U.S. and international copyright, trademark, service mark, patent and/or other proprietary rights and laws. Except as expressly provided in this Agreement, nothing contained herein grants, by implication, waiver, estoppel or otherwise, to Subscriber or any third-party any intellectual property rights or other right, title, or interest in or to any of the GreenAppy IP. No part of the GreenAppy IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement. Subscriber shall not take any action that shall interfere with or diminish GreenAppy’s right in any of the GreenAppy IP.
8. Subscriber Proprietary Information.
a) GreenAppy agrees that it has no rights to the data, documents, information or material that Subscriber submits in the course of using the Site or NebulaNow ("Customer Data"). GreenAppy does not store Customer Data except to the extent that is required by the Site Privacy Policy located at: http://www.nebulanow.com/privacy/. For example, GreenAppy may store End-User information and user activity data. GreenAppy will not use or disclose Customer Data except solely in connection with processing such data in the normal course of Subscriber's use of the Site or NebulaNow and as otherwise provided for in this Agreement.
b) Subscriber acknowledges that NebulaNow does not, at any time, manipulate, store, or alter native content within the Customer Data. Subscriber, and not GreenAppy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use its own Customer Data, and GreenAppy shall not be responsible or liable for the failure to store, deletion, correction, destruction, damage, or loss of any Customer Data except to the extent caused by GreenAppy's gross negligence or willful misconduct.
c) In the event this Agreement is terminated, GreenAppy will permanently remove all, if any, of Subscriber’s Customer Data from its files and servers. GreenAppy reserves the right to withhold, remove and/or discard any Customer Data without notice for any material breach, including without limitation, non-payment of license fees within the Cure Period defined in Section 9b. Any requests by Subscriber for the return of any Customer Data, if any, within GreenAppy’s control shall be made within fourteen (14) days of termination of this Agreement.
9. Term, Suspension, and Termination.
a) Term. Unless terminated earlier pursuant to this Section 9 of this Agreement, the initial term (“Initial Term”) of this Agreement shall be for a period of twelve (12) months from the Effective Date and shall thereafter automatically continue under this Agreement for a subsequent twelve-month (12) term (“Subsequent Term”) unless either Party provides a thirty-day (30) notice of termination.
b) Suspension with Right to Cure. In addition to any other rights and remedies outlined in this Agreement, GreenAppy reserves the right to suspend the License and Subscriber's access to NebulaNow upon ten (10) days' written notice to Subscriber (“Cure Period”) if Subscriber’s account becomes delinquent by non-payment for more than fifteen (15) days and such delinquency is not cured within the Cure Period. Delinquent invoices are subject to interest of one percent (1.0%) per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for the remainder of the term for any delinquent accounts. Subscriber acknowledges and agrees that GreenAppy has no obligation to retain Customer Data and that such Customer Data, if any, may be irretrievably deleted and this Agreement may be terminated in GreenAppy’s sole discretion if Subscriber’s account is delinquent for a period of ninety (90) days or more. Subscriber acknowledges that (i) Subscriber’s access to NebulaNow may be suspended due to non-payment by Subscriber to SFDC or breach of Subscriber’s agreement with SFDC, and (ii) in the event Subscriber’s relationship with SFDC is terminated as a result of non-payment or other material breach of Subscriber’s agreement with SFDC, Subscriber’s License would also be terminated.
c) Termination by Either Party for Any Reason. Either Party may terminate this Agreement at any time upon twenty (20) business days’ prior written notice for any reason (“Termination for Convenience”), provided that Subscriber may not terminate this Agreement while it is curing a breach, including, but not limited to, delinquent accounts, pursuant to written notice from GreenAppy while it is under Suspension. If Subscriber terminates this Agreement pursuant to this Section 9c, Subscriber is not entitled to any refund of Subscriber Fees. If GreenAppy terminates this Agreement pursuant to this Section 9c, Subscriber shall receive a refund equivalent to any unused portion of the Initial or Subsequent Term. Any unauthorized access, use of passwords or NebulaNow, or other abuse or impermissible activity on GreenAppy’s Site or in connection with NebulaNow may result in immediate suspension or termination of End-User accounts with no refund and without limitation of any other available legal remedies.
d) Remedies Not Limiting. The remedies provided in this Section 9 are in no way limiting of one another or of any other rights and remedies granted to GreenAppy under this Agreement. GreenAppy may choose to, but is not required to, place Subscriber’s account on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.
e) Survival. Sections 9d (Remedies Not Limiting), 10 (Representations and Warranties), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Receipt of Confidential Information), and 15 (Additional Miscellaneous Provisions), and this “Survival” provision shall survive termination of this Agreement regardless of the manner in which this Agreement was terminated.
10. Representations and Warranties.
a) Mutual. Each Party represents, warrants, and covenants, as applicable, to the other Party that: (i) It has all right, title, and authority to enter into this Agreement; and (ii) Its execution of this Agreement and its engagement hereunder do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a party or by which it is bound.
b) Performance Warranty. During the Term of this Agreement: (i) NebulaNow shall function properly in conformity with the warranties herein and in accordance with this Agreement; and (ii) the Site commentaries and text shall completely and accurately reflect the operation of NebulaNow.
c) Updates. (i) All updates shall, at a minimum, be consistent with then-existing and released industry standards; (ii) no update will materially degrade the functionality, capabilities, or features of NebulaNow at the time of release of such update; and (iii) all updates shall be backward compatible with the data structures, databases, and system architectures employed with previous versions of NebulaNow licensed by Subscriber.
11. Disclaimer of Warranties. NOTWITHSTANDING SECTION 10 (REPRESENTATIONS AND WARRANTIES), GREENAPPY DOES NOT REPRESENT OR WARRANT THAT THIS SITE, NEBULANOW, OR THE CONTENT WILL BE ERROR-FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SITE, NEBULANOW, AND THE CONTENT ARE PROVIDED ON AN "AS IS, “AS AVAILABLE" BASIS, AND GREENAPPY EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. GREENAPPY DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR ANY WAY RELATED TO (A) ANY ERRORS IN OR OMISSIONS FROM THIS SITE, NEBULANOW, AND THE CONTENT, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS; (B) THE UNAVAILABILITY OF THIS SITE, NEBULANOW, OR ANY PORTION THEREOF; (C) SUBSCRIBER’S USE OF THIS SITE, NEBULANOW, OR THE CONTENT; (D) SUBSCRIBER’S USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SITE, NEBULANOW, OR THE CONTENT; OR (E) ANY THIRD PARTY WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS CONTAINED ON THE SITE OR THROUGH NEBULANOW.
12. Limitation of Liability.
a) THE LIABILITY OF GREENAPPY AND SUBSCRIBER TO EACH OTHER FOR ANY AND ALL CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AVERAGE MONTHLY SUBSCRIPTION FEES CONVERTED TO AN ANNUALIZED BASIS.
b) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THIS SITE, NEBULANOW, OR THE CONTENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c) NOTWITHSTANDING THE FOREGOING, SECTION 12a and SECTION 12b WILL NOT APPLY TO (I) CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR CRIMINAL ACTS OR OMISSIONS; (II) BREACH OF CONFIDENTIALITY; AND (III) ANY THIRD PARTY CLAIMS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT.
13. Indemnification.
a) Subscriber agrees to indemnify, defend and hold harmless GreenAppy, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Site or NebulaNow from and against all claims, losses, expenses, damages and costs, including reasonable attorneys' fees (collectively, "Losses"), resulting from or in connection with: (i) any breach of any obligation of Subscriber under Section 14 (Confidential Information); (ii) any breach by Subscriber of any of its warranties and representations under Section 10(a) (Representations and Warranties); (iii) violation of any applicable laws by Subscriber, its officers, directors, employees, agents, contractors, or affiliates (“Subscriber Responsible Parties”); or (iv) any misuse, loss, damage, corruption, or destruction of NebulaNow by Subscriber Responsible Parties or any breach of security relating to the same.
b) GreenAppy agrees to indemnify, defend and hold harmless Subscriber, its officers, directors, and employees from and against all Losses resulting from or in connection with: (i) any breach of any obligation of GreenAppy under Section 14 (Confidential Information); (ii) any breach by GreenAppy of any of its warranties and representations under Section 10 (Representations and Warranties); (iii) violation of any applicable laws by GreenAppy, its officers, directors, or employees (“GreenAppy Responsible Parties”); (iv) any loss, damage, corruption, or destruction of NebulaNow by GreenAppy Responsible Parties or any breach of security relating to the same; or (v) any infringement of intellectual property rights of any third party; provided, however, that GreenAppy is not liable for any Losses arising under this Subsection 13(b)(vi) to the extent that Subscriber modified the GreenAppy IP, unless such modifications were approved by GreenAppy, or the Losses are based on a use for which the applicable GreenAppy IP was not designed.
c) Indemnification under subsections (a) and (b) hereof will be provided only on the conditions that: (i) the indemnifying party is given written notice within fifteen (15) calendar days after the indemnified party receives notice of the subject Action; (ii) the indemnifying party has sole control of the defense and all related settlement negotiations, provided any settlement that would impose any monetary or injunctive obligation upon the indemnified party shall be subject to such party’s prior written approval and unconditionally releases the indemnified party of all liability; and (iii) the indemnified party provides cooperation and information in furtherance of such defense, as reasonably required by the indemnifying party at the indemnifying party’s expense. The indemnifying party shall not be relieved of its indemnification obligations herein for the indemnified party’s failure to comply with such requirements, except to the extent that the indemnifying party has been prejudiced by the indemnified party’s actions or inactions.
14. Receipt of Confidential Information.
a) Confidentiality. Each Party agrees to maintain the confidentiality of the other Party’s Confidential Information as defined herein. “Confidential Information” means all information concerning a Party’s business not generally known to the public, whether or not marked as confidential. By way of illustration only, Confidential Information may include this Agreement, trade secrets, know-how, inventions, contractual disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, whether or not such information is marked as confidential. Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and / or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party. In maintaining the confidentiality of the other Party’s Confidential Information, each Party shall use at least the same standard that Party uses for its own confidential information of similar type, and shall take necessary precautions not to disclose such information to any person except its officers, employees or subcontractors, who have a need to know in order to comply with the obligations of this Agreement. Each Party’s officers, employees, and subcontractors shall be bound by the terms of this Section or a similar written agreement with terms no less protective of either Party’s Confidential Information than this Agreement. Each Party acknowledges that any actual or threatened violation of this Section may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing Party shall be entitled to seek injunctive relief in addition to all other remedies available at law and/or in equity. Nothing in this Section shall prohibit GreenAppy from disseminating aggregated information that contains no identifiable Subscriber Confidential Information.
b) Destruction and Return of Confidential Information. Upon request of the disclosing Party or upon termination of this Agreement, all materials containing Confidential Information will be destroyed or returned to the disclosing Party and the receiving Party will retain no copies or reproductions of the Confidential Information unless required by law, except the receiving Party may retain one record copy, subject to the reasonable instructions of the disclosing Party with respect to such copy.
c) Cooperation. In the event of any unauthorized use or disclosure or loss of any Confidential Information of the disclosing Party, the receiving Party shall promptly, at its own expense: (i) notify the disclosing Party in writing; (ii) take such actions as may be necessary or reasonably requested by the disclosing Party to minimize the violation or the damage resulting therefrom; and (iii) cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.
d) Limitation. Notwithstanding the provisions of this Section, GreenAppy may disclose Subscriber’s Confidential Information, which includes personally identifying information and End-User activity: (i) in accordance with a judicial or other governmental subpoena, warrant or order; provided that GreenAppy shall comply with any applicable protective order or equivalent and, unless prohibited by law, GreenAppy will employ commercially reasonable efforts to provide Subscriber with prior written notice, so that Subscriber has an opportunity to intervene at its own expense and to protect the confidentiality of its information; (ii) to law enforcement officials and regulators if it reasonably suspects unlawful activity; and (iii) to other Parties that are identified by Subscriber for that purpose.
e) No Intellectual Property. THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use disclosing Party’s Confidential Information for the express, limited purposes described above.
15. Additional Miscellaneous Provisions.
a) Governing Law; Jurisdiction; Venue; Attorney’s Fees. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California, except for that body of law addressing conflicts of law. For any disputes that are not resolved by way of arbitration, as outlined below, the Parties hereby consent to exclusive venue and jurisdiction for actions concerning or relating to this Agreement in the federal or state courts of California, County of Los Angeles. In any action to interpret or enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees it incurs. The Parties submit to the jurisdiction of said courts and waive any defense of forum non conveniens. The Parties waive all rights to jury trials.
b) Arbitration. Any controversy or claim arising out of or relating to this Agreement or the provision of NebulaNow shall be finally settled by binding arbitration in accordance with the most current commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Los Angeles, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. However, subject to the foregoing arbitration provision, Subscriber and GreenAppy agree to submit to the personal jurisdiction of the courts located within the city and county of Los Angeles, California. Either Subscriber or GreenAppy may seek an interim or preliminary relief from a court of competent jurisdiction in Los Angeles, California, necessary to protect the rights or property of Subscriber or GreenAppy (or its agents, suppliers, and subcontractors) pending the completion of arbitration. SUBSCRIBER AND GREENAPPY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Parties agree otherwise, the arbitrator may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party's individual claim.
c) Assignments. This Agreement shall be binding upon and shall be for the benefit of GreenAppy and Subscriber and both Parties’ respective legal representatives, successors, and permitted assigns; provided, that Subscriber shall not be entitled to assign, sublicense, or delegate this Agreement, in whole or in part, without GreenAppy's prior written consent. Any attempted assignment, delegation, or assumption of this Agreement not in accordance with this Section will be of no force or effect.
d) Entire Agreement; Waiver; Relationship of the Parties. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties as to the subject matter hereof, and supersede all prior and/or contemporaneous agreements, representations, and understandings between them, whether orally or in writing, except as may be expressly incorporated by reference into this Agreement. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Parties. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, or employment relationship between the Parties, and neither Party shall have any right to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent. Except as expressly provided for herein, this Agreement is not for the benefit of any third party, but nothing in this Agreement shall prevent or interfere with any consumer bringing an action against Subscriber for violation of law.
e) Severability of Terms. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
f) Notices and Contact Information. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either (i) hand-delivered to the addressee; or (ii) deposited in the mail (registered or certified) or delivered to a private express company. Notices must be addressed as follows: (A) if to GreenAppy, at the mailing address or email set forth in the “Contact Us” section of the Site; or (B) if to Subscriber, at the mailing address or email set forth in the Sales Quotation. Email notice shall be effective upon confirmation of receipt by the receiving Party. Either Party may change its notice address by providing the other Party with notice of the change.