For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. License to Receive the Service (a) Grant. GroLens hereby grants the Subscriber identified on the above Order Form a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to access, and display on Subscriber’s Display Devices within the United States, the Service, as described in Exhibit A (“SOW”), attached hereto and fully incorporated herein; and to permit Authorized Users designated in the Order Form to use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved to GroLens. (b) Scope. The license granted to Subscriber hereunder is limited to a single, authorized Application for the display and retrieval of the Service on an Authorized User’s device. The license does not extend to multiple applications for the display or retrieval of content within the Services. Subscriber shall have no right pursuant to this Agreement to distribute the Service in whole or in part over the Internet, or via email or instant messaging (other than as set forth in Section 9), via an Intranet, personal digital assistant, wireless application protocol, short message service or radio system. An enhanced license encompassing such applications is available as a supplement to this Agreement. Nothing in this Agreement shall obligate GroLens to continue providing access to any Service beyond the date when GroLens ceases providing such Service to subscribers generally. (c) Restrictions Use. Subscriber shall not edit, alter, abridge or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to: (1) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service; (2) modify, translate, adapt, alter, or create derivative works from the Service; (3) copy (other than one back-up copy), distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Service; or (4) distribute, sublicense, rent, lease, loan or grant any access to or use of the Service to any third party who is not an employee, contractor, or agent of the Subscriber.
2. Definitions As used herein, the “Agreement” shall mean these terms and conditions, the Order Form, and any written amendments signed by both parties; “Application” shall mean either the GroLens-developed application used by Subscriber for the Service hereunder; “Authorized Users”shall mean Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorised by Subscriber to access the Service; “Billing Start Date” shall mean the date identified on the Order Form as the date from which billing shall be calculated (which under no circumstances shall be later than the Service Start Date, as defined below); “Display Devices” shall mean any display device used to access and display the Service; “Service” shall mean GroLens’s web application, which is subscribed to by Subscriber designated in the Order Form; “Service Start Date” shall mean the date from which Subscriber receives the applicable Service or the Effective Date of the Agreement, as designated in the Order Form, whichever is earlier; “Fees” shall mean the fees payable pursuant to Section 3 hereof; “Office” shall mean the address(es) of Subscriber’s office(s) in which a Display Device is located; “Order Form” shall mean the foregoing Order Form that sets out the commercial terms and is executed by the parties; “Term” shall mean the 12-month period identified in the Order Form, or any renewal term of 12 months, as applicable; and
3. Fees and Payment (a) Fees. In exchange for the license granted above, commencing on the Billing Start Date, Subscriber shall pay GroLens for the Term hereof the Fees, payable in advance, based on the Services and the number of Authorized Users identified in the Order Form, and on any other commercial terms contained in this Agreement. Subscriber shall inform GroLens of any increases in the number of Authorized Users no later than seven (7) days after the date of such increase and shall amend the Order Form accordingly. (b) Late Payments. If Subscriber fails to pay the Fees by the due date specified on the invoice, GroLens shall be entitled to interest from the day on which the Fees are due. Both parties agree that the rate of interest on overdue invoices shall be 1.5 percent per month or the amount afforded by law, whichever is greater. (c) Taxes. Subscriber will be responsible for, and will promptly pay or reimburse Gro Lens for, the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of GroLens that is in accordance with the direction or request of Subscriber) that are based on or with respect to any Services or goods provided by GroLens to Subscriber, or the amounts payable to GroLens therefore.
4. Support Services During the term of this Agreement, Subscriber may request GroLens to perform support services (hereinafter, “Support Services”), as necessary for the productive use of the software. GroLens will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by emailing [email protected]. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day. The Support Services performed by GroLens are not exclusive to Subscriber, and Gro Lens may perform services of any type or nature for any other person or entity at any time.
5. Access (a) Installation. Subscriber shall acquire, install, operate and maintain, at Subscriber’s expense, all equipment, software, services and related technology necessary to receive the Service. (b) Delivery and Acceptance. GroLens will make the Service available to Subscriber as indicated on the Order Form. The Service will be deemed accepted upon the Effective Date. Any updates, bug fixes, or upgrades (“Corrections”) to the Service will be deemed accepted by Subscriber on the day such Corrections are delivered.
6. Monthly Reports; Records (a) Subscriber Reports and Records. Subscriber shall maintain accurate records containing the following information, copies of which GroLens shall be entitled to request upon seven (7) days prior written notice: (i) the Office where at least one Display Device for the Service is located; and (ii) the total number of Display Devices at each Office; and (iii) the Services received by Subscriber on each Display Device. No Display Device may be accessed on a regular basis by more than one Authorized User, unless additional fees for such access have been agreed to in writing by the parties hereto.
7. Audits and Inspections For the purpose of verifying compliance with this Agreement, GroLens (and GroLens’s authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber’s business, to audit and inspect from time to time Subscriber’s offices, books and records relevant to the Service and to observe the use made of the Service and the manner in which each Display Device accesses the Service. If GroLens’s records pursuant to this Section or otherwise indicate that: (i) more Users are accessing the Service than the number of Authorized Users that Subscriber has paid for, or (ii) more Services are being accessed by Users, Authorized or not, than Subscriber has been billed for; then Subscriber shall pay GroLens the shortfall in Fees retrospectively to the date of the applicable increase. If such underpayment exceeds five (5) percent of the Fees due during the relevant period, Subscriber shall reimburse GroLens for GroLens’s reasonable costs associated with such audit or inspection.
8. Mergers and Acquisitions For the purpose of calculating the Fees, it is not the parties’ intention that the Fees charged under this Agreement will include Display Devices and Services added through a merger or acquisition. Accordingly, in the event of any merger or acquisition that would result in Subscriber’s ownership or control of Display Devices formerly owned or controlled by another entity, such additional Display Devices and Services will not be covered by the Fees charged under this Agreement. Rather, Subscriber agrees that such Display Devices and Services shall be subject to additional fees, based upon the then-current listed price for the additional Display Devices and/or Services resulting from the acquisition or merger, unless agreed to otherwise by the parties in writing. A merger and/or acquisition shall not entitle Subscriber to terminate this Agreement other than in accordance with its terms.
9. Copyright Protection; Use Restrictions; Security Subscriber agrees that the Service and Feed specifications, including without limitation the editorial coding and metadata contained therein, are the property of Gro Lens or GroLens’s licensors. The works and databases included in the content of the Service are protected by applicable copyright laws. Subscriber agrees that only Authorized Users shall be permitted access to the Service. Except as set forth herein, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users. Subscriber shall not reverse engineer, decompile or disassemble any part of the Service. Subscriber further agrees that neither Subscriber nor any Authorized User shall store (except as permitted under Section 1(d)(ii) for retrieval and display purposes only), copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithims), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of Subscriber, without GroLens’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service: (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees; and (b) in email and instant messaging communications with other employees and/or securities professionals. Without limiting the foregoing, under no circumstances shall distribution under this Section by Subscriber be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. Subscriber agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or GroLens.
10. Disclaimer SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND GroLens DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
11. Indemnification (a) Subscriber Infringement Indemnity. Subscriber, at its expense, will defend, indemnify, and hold GroLens harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against GroLens which directly relate to a claim, action, lawsuit, or proceeding made or brought against GroLens by a third party alleging the infringement or violation of such third partys registered patent, trade secret, copyright, or trademark (each a “GroLens Claim”) by way of GroLenss use of any Subscriber Content that Subscriber provides to GroLens and GroLens uses in the provision of any Services. (b) GroLens Infringement Indemnity. GroLens, at its expense, will defend, indemnify, and hold Subscriber harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Subscriber which directly relate to a claim, action, lawsuit, or proceeding made or brought against Subscriber by a third party alleging the infringement or violation of such third partys registered patent, trade secret, copyright, or trademark (each a “Subscriber Claim”) by way of Subscribers use of the Service that GroLens provides to Subscriber.
12. Limitation of Liability GROLENS AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND CONTRACTORS (“THE PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF THE PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. SUBSCRIBER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS GRO LENS FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST GROLENS RELATING TO ANY BREACH OF THIS AGREEMENT BY SUBSCRIBER.
13. 12-Month Term; Automatic Renewal; Fees; and Early Termination This Agreement shall become effective when Subscriber signs the Order Form or on the Effective Date designated therein, whichever is earlier; and, unless terminated earlier in accordance herewith, shall continue from the Billing Start Date for the period specified in the Order Form. This Agreement shall automatically renew for subsequent like terms of 12 months unless either party gives the other written notice of its intention not to renew no later than thirty (30) days prior to the end of the then-current term. Modifications in any ongoing Fees in connection with direct access to a Feed shall be communicated to Subscriber no later than ninety (90) days prior to their effective date, and such modified Fees shall be deemed to replace those previously stated in the Order Form. This Agreement may be terminated as follows: (a) if either party commits a breach of any provision of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching party (“Notice of Breach”), the party giving such notice may then deliver a second written notice to the breaching party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such second notice; or (b) if a receiver is appointed over any assets of either party or if either party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect. If this Agreement is terminated before the end of its then current term for any reason other than by Subscriber under Clause 14 (a) or (b), then Subscriber will pay to GroLens the amount due by Subscriber for the previous calendar month multiplied by the number of months remaining in such Term (“Damages”) within 30 days after such termination. The parties agree that the Damages under this clause are not intended to be and will not be punitive in effect, and that the Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Subscriber receives any notice of late payment under this Agreement in any form, whether written or electronic, from GroLens, including any business division, such notice will be deemed to be a Notice of Breach.
14. Confidentiality Subscriber and GroLens understand and agree that in the performance of this Agreement each party may have access to private or confidential information of the other party which either is marked as “confidential” or which the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other party. Each of the Parties shall hold such information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of this Agreement. This obligation of confidentiality shall not apply to information that is generally available to the public through no act or omission of the receiving party or becomes known to the receiving party through a third party with no obligation of confidentiality, or is required to be disclosed by law, court or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation or order of any court of competent jurisdiction, before any such disclosure the receiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other restriction regarding such disclosure. If either party elects to file this Agreement with the U.S. Securities and Exchange Commission or any other securities exchange or market, regulatory authority or other body, the filing party will provide the non-filing party, no less than five (5) business days before the expected date of the filing (the “Filing Date”), a copy of the Agreement marked to show the sections for which the filing party plans to seek confidential treatment. The filing party agrees to expand its confidential treatment request to include those provisions of this Agreement reasonably indicated by the non-filing party before the Filing Date as provisions for which the non-filing party requests confidential treatment. All confidential information will remain the exclusive property of the owner. No public announcement, press release or communication concerning this Agreement shall be made without the prior consent of the other party.
15. Pilot Use Evaluation License (a) Evaluation License. In consideration of Customer’s agreement to provide to Company an Evaluation, Company hereby grants a nonexclusive, terminable, royalty-free license (“Evaluation License”) to Customer and its Affiliates to internally use the Software Program and the Software Program Materials through the Company’s Saas interface, solely for purposes of Evaluation, on computer equipment owned or leased by Customer or its Affiliates at Customer’s or its Affiliates’ sites. For the purposes of this Agreement, “Evaluation” shall mean the process of internal product testing to determine the functionality and suitability of the Software for Customer’s application, and Customer’s provision to Company of comments, suggestions and overall evaluations with respect to the Software (“Feedback”). For the purposes of this Agreement, “Affiliates” shall mean any corporation or other business entity controlling, controlled by or under common control with Customer; and for such purpose “control” shall mean direct or indirect ownership of: (i) 50 percent or more of the voting interest in such corporation or other entity; (ii) 50 percent or more of the interest in the profit or income in the case of the business entity other than a corporation; or (iii) in the case of a partnership, control of the general partner. (b) Expiration. Unless earlier terminated as provided herein, the Evaluation License granted hereunder shall expire 90 days following the date that the Software Program is accessible from installed on Customer’s or its Affiliate’s computer equipment, or the Effective Date of this Agreement, whichever is earlier. (c) Termination. The Evaluation License granted hereunder may be terminated without cause by either party upon ten days prior written notice. As soon as practicable following termination or expiration of the Evaluation License, but in no event more than 30 days thereafter, Customer and its Affiliates shall delete or destroy all copies of the Software Program Materials (if any have been provided) from their respective computer equipment.
16. Use of Logo. Customer expressly authorizes Company to use its name, logo and/or trademark in connection with certain promotional materials that Company may disseminate to the public. The promotional materials may include, but are not limited to, brochures, videotape, internet website, press releases, advertising on our website or app, in newspaper and/or other periodicals, lucites, and any other materials relating the fact that Company has a business relationship with Customer and such materials may be developed, disseminated and used without Customer’s review. Nothing herein obligates Company to use a Customer’s name, logo and/or trademark, in any promotional materials of Company.
17. Miscellaneous (a) Notice. All notices to a party hereunder shall be in writing, and delivered by certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to the address(es) set forth on the Order Form, or to a different address which a party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received. (b) Amendment. The parties acknowledge that Subscriber is responsible for notifying Vendor directly of any Vendor-related issues. This Agreement may not be amended except in a writing executed by authorized representatives of Subscriber and GroLens. (c) Assignment. This Agreement is not transferable, assignable, delegable, or sublicenseable by Subscriber in whole or in part, without the prior written permission of GroLens. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors, trustees, administrators, and assigns. (d) Survival. The following obligations of the parties will survive termination or expiration of this Agreement for any reason: Sections 2, 9, 10, 11, 12, 13, 14 (but only for three (3) years after such termination or expiration), and 15 of this Agreement and any payment obligations of Subscriber that accrue prior to such termination or expiration. (e) Independent Contractor. GroLens is acting in performance of this Agreement as an independent contractor. (f) Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other party. No third party is a beneficiary of this Agreement. (g) Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either party at any time to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter. (h) Injunctive Relief. If Subscriber breaches Section 1 of this Agreement, GroLens will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application. (i) Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law. (j) Choice of Law and Binding Arbitration. Choice of Law. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of California, United States of America (“New York”), applicable to contracts made entirely within California and wholly performed in California, without regard to any conflict or choice of law principles. Informal Negotiations. To expedite resolution and the cost of any dispute, controversy or claim related to this Agreement (‘Dispute‘), you and Gro Lens agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing address, with an email copy to the email address you have provided to GroLens in the Order Form. GroLenss address for such notices is stated in the Order Form. Binding Arbitration. If you and GroLens are unable to resolve a Dispute through informal negotiations, all claims arising from use of the Services (except those Disputes expressly excluded below) shall be finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the ‘AAA Rules‘) of the American Arbitration Association (‘AAA‘) and, where appropriate, the AAAs Supplementary Procedures for Consumer Related Disputes (‘AAA Consumer Rules‘), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share or arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and GroLens may litigate in court only to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In any arbitration proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Exceptions to Alternative Dispute Resolution. Claims where mandatory arbitration is prohibited by a valid, non-preempted law, to the extent waiver of such claim is deemed unenforceable by a court of competent jurisdiction, are not covered by this arbitration provision. Nothing in this arbitration provision will prevent either party from bringing an individual action in small claims court or to seek injunctive or other equitable relief on an individual basis in a federal or state court in Los Angeles County, California, with respect to any dispute related to the actual or threatened infringement, misappropriation or violation of a partys intellectual property or proprietary rights. Notwithstanding the foregoing, if the subsection entitled Exceptions to Alternative Dispute Resolution is found to be illegal or unenforceable, neither you or Gro Lens will elect to arbitrate any Dispute falling within that portion of that subsection that is found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Los Angeles County, California, and you and GroLens agree to submit to the personal jurisdiction of that court. Waiver of Right to be a Plaintiff or Class Member in a Purported Class Action or Representative Class Arbitration Proceeding. You and GroLens agree that any arbitration will be limited to the Dispute between GroLens and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and GroLens otherwise agree, the arbitrator may not consolidate more than one persons claims, and may not otherwise preside over any form of any class or representative class arbitration proceeding. You and GroLens agree that, other than as set forth under the subsection entitled Waiver of Right to be a Plaintiff or Class Member in a Purported Class Action or Representative Class Arbitration Proceeding, if any portion of the section entitled ‘Dispute Resolution‘ is found illegal or unenforceable, that portion will be severed and the remainder of this Agreement will be given full force and effect. Location of Arbitration. Arbitration will take place in Los Angeles County, California. You and GroLens agree that for any Dispute not subject to arbitration (other than claims proceeding in any small claims court), the California state and Federal courts located in Los Angeles County, California have exclusive jurisdiction, and you and GroLens agree to submit to the personal jurisdiction of such courts. Right to Opt Out of Arbitration and Class Action/Jury Trial Waiver. You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying GroLens in writing within thirty (30) days of the date you first used the Services or the Effective Date of this Agreement, whichever is earlier. To opt out, you must send an email to [email protected] and/or written notification to GroLens, Inc. that includes: (a) your user identification; (b) your name; (c) your address; (d) your telephone number; (e) your email address; and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver sections. GroLenss address for such notices is stated in the Order Form. (k) Force Majeure. Any failure or delay by GroLens in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of GroLens. (l) Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter. (m) Exhibits. The following Exhibits are attached hereto and incorporated herein by this reference: ● Order Form (Page 1 of this Agreement); ● Exhibit A: Statement of Work; and ● Exhibit B: Legal Terms and Conditions.