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Master Services Agreement

THIS MASTER SERVICES AGREEMENT IS ENTERED INTO BETWEEN RADIUS INTELLIGENCE, INC. (“RADIUS”), AND THE CUSTOMER IDENTIFIED IN THE ORDER FORM(S) (“CUSTOMER”).  THE “ORDER FORM(S),” TOGETHER WITH THE MASTER SERVICE AGREEMENT CONSTITUTE THE “AGREEMENT”.  RADIUS AND CUSTOMER IS EACH A “PARTY” AND TOGETHER ARE THE “PARTIES” TO THIS AGREEMENT.  NO ORDER FORM WILL BE EFFECTIVE UNLESS EXECUTED BY EACH PARTY.  EXECUTION OF THE ORDER FORM CONSTITUTES ASSENT TO THE ENTIRE AGREEMENT.  THE INDIVIDUAL EXECUTING EACH ORDER FORM AND AGREEING TO THIS MASTER SERVICE AGREEMENT ON BEHALF OF THE CUSTOMER REPRESENTS AND WARRANTS IT HAS ALL RIGHTS AND THE LEGAL POWER NECESSARY TO DO SO AND TO BIND CUSTOMER TO THIS AGREEMENT.

1. SERVICES; DATA

1.1 Subject to the terms and conditions of this Agreement, Radius will use commercially reasonable efforts to provide Customer with access to the Services (as defined in the applicable Order Form) (“Services”).  The Services are subject to modification, restriction, or suspension from time to time at Radius’ discretion or as otherwise described herein.  Further, Customer’s use of the Services may be subject to certain usage caps. Customer agrees that Customer’s subscription to Services hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Radius regarding future functionality or features.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer shall: (a) provide and maintain the computer and network software and hardware necessary to access and use the Services; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Radius promptly of any such unauthorized access or use; and (c) use the Services only in accordance with this Agreement, and applicable laws and government regulations.

2.2 Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, or algorithms of the Services or any software, documentation, or data related to the Services (“Software”) (except to the extent applicable law prohibits such a restriction); (ii) modify, translate, or create derivative works based on the Services or Software, except as expressly permitted in the Agreement or with prior written consent by Radius; (iii) sell, resell, license, sublicense, relicense, rent, lease, pledge, assign, or otherwise transfer or encumber rights to the Services or Software ; (iv) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal business purposes (including providing any Data Set (as applicable) to a third party); (v) remove any proprietary notices or labels from the Services, Products or Software; (vi) interfere with or disrupt the integrity or performance of the Services or Software; (vii) attempt to gain unauthorized access to the Services or Software or their related systems or networks; or (viii) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations.

2.3 Customer may be permitted, through the functionality of the Services, to access the Services through a third party platform or to link its Services account with its third party platform account (each such platform, a “Third Party Platform”).  If Customer accesses the Services through a Third Party Platform, it understands and agrees that information related to Customer maintained by or associated with the Third Party Platform (“Third Party Platform Information”) may be transferred or made available to Radius , and information associated with Customer in Customer’s Radius account may be transferred or made available to the Third Party Platform, and Customer hereby consents (1) to all such transfers;(2) to Radius using Third Party Platform Information  in connection with its provision of the Services; and (3) to Radius using Third Party Platform Information and as described in Section 3.7.

2.4 Customer will cooperate with Radius in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Radius may reasonably request.  Customer’s use of the Services may be limited to a certain number of Seats, as defined in the Order Form; Customer will establish a username and password (or any other means required by Radius) in order to limit access to the Services as Seats under Customer’s account to authorized and designated employees of Customer and to enforce such limitation. Customer will be responsible for maintaining the security of all Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer accounts with or without Customer’s knowledge or consent.

2.5 Customer acknowledges and agrees that Radius does not have the obligation, but may elect, to monitor or police the content of data uploaded to or transmitted through the Services. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer will not transmit or cause to be transmitted any content or data to or through the Services which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing, or threatening; (b) contains malicious code; (c) violates the rights of others, including without limitation, data which infringes on, or misappropriates, any intellectual property rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law (including, without limitation, the laws and regulations governing unfair competition).

3. PRIVACY AND CONFIDENTIALITY

3.1 As used herein, “Proprietary Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally, electronically, or in writing, that is designated as “proprietary” or the like, or, that reasonably should be understood to be proprietary given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in the Order Form), the Services, the Software, business and marketing plans, technology and technical information, product plans and designs, and business processes. The Disclosing Party agrees that the Proprietary Information does not include information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in Receiving Party’s lawful possession or known by Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to Receiving Party without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) was disclosed with the prior written approval of Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that, to the extent permitted by law, the Receiving Party gives the Disclosing Party prompt written notice of such law enforcement, governmental, or judicial request for information to enable Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited to the extent possible.

3.2 The Receiving Party agrees: (i) not to divulge to any third person any Proprietary Information (except as expressly permitted herein), (ii) to give access to Proprietary Information solely to its employees and contractors with a need to have access thereto for purposes of this Agreement and who have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Proprietary Information, (iii) to take the same security precautions to protect against disclosure or unauthorized use of Proprietary Information that the Party takes with its own proprietary information, but in no event will a Party apply less than reasonable precautions to protect Proprietary Information, and (iv) not to use such Proprietary Information except to exercise its rights and fulfill its obligations under this Agreement. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Proprietary Information.

3.3 Customer acknowledges that Radius does not wish to receive any Proprietary Information from Customer that is not necessary for Radius to perform its obligations under this Agreement. Unless the Parties specifically agree otherwise, Radius may reasonably presume that any unrelated information (including, but not limited to, Feedback) received from Customer is not confidential or Proprietary Information.

3.4 Access to the Services may require the Customer to install certain software applications and/or to download or store certain data or executable functionality locally on Customer’s properties (collectively, “Local Objects”); all Local Objects are Proprietary Information of Radius and must be deleted upon termination of this Agreement.  Radius will be provided with Administrator rights to the extent necessary to onboard and support Customer’s use of Products and Services.

3.5 For clarity, the Services (including any Data Sets) and Software are also Radius’ Proprietary Information.

3.6 The Parties acknowledge and agree that the confidentiality obligations set forth in this Section 3 are reasonable and necessary for the protection of the Parties’ business interests, that irreparable injury may result if they are breached, and that in the event of any actual or potential breach of Section 3, that the non-breaching Party may have no adequate remedy at law and shall be entitled to seek injunctive and/or equitable relief as may be deemed proper by a court of competent jurisdiction.

3.7 Notwithstanding anything to the contrary, Radius may aggregate and/or anonymize any information collected from Customer in the course of this Agreement (including any Third Party Platform Information) and use such information, provided that Radius aggregates and/or anonymizes the information such that the information does not individually identify Customer (“Anonymized Data”) prior to disclosure to a third party, except that Radius may disclose individually identifiable information to its third party contractors who are subject to confidentiality obligations. Radius retains all intellectual property rights in Anonymized Data. This Section 3.7 shall survive termination of this Agreement.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Except as expressly set forth herein, Radius alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Software, and to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Customer relating to the Services and/or the Software (“Feedback”), and Customer hereby makes all assignments necessary to accomplish the foregoing with respect to Feedback.

4.2 The Radius name and other Radius graphics, logos, and service names are trademarks and/or service marks of Radius, Inc., Radius’ trademarks or service marks may not be used in connection with any product or service that is not Radius’, in any manner that is likely to cause confusion, or in any manner that disparages or discredits Radius.  Customer agrees not to delete, obscure, or otherwise modify Radius’ trade and service marks or other proprietary notices, nor to remove any links made available in the Services to such notices, without the express written consent of Radius.  Any additional use of Radius’ trade and service marks (including name, graphics, or logos), are subject to Radius’ prior written permission, which will not be unreasonably withheld.  Use of the Services may require Radius to display Customer’s trade and/or service marks.  Customer may also request that Radius display Customer’s trade and/or service marks through the Services.  If such use is requested or is needed for use of the Services, Customer hereby grants Radius a non-exclusive, limited license to use those trade and/or service marks in connection with the Services provided to Customer.

4.3 All content made available by or through the Services, such as documents, text, graphics, logos, button icons, images, audio clips, video clips and/or other content (collectively “Content”), is the property of Radius, Inc., and is protected by U.S. and international copyright laws.

4.4 Customer is hereby granted a limited, non-exclusive, nontransferable, revocable right to use the Software for its internal purposes only for the term of the Agreement.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software, or any intellectual property rights.  All rights not expressly granted herein are reserved by Radius.

5. FEES AND PAYMENT; TAXES

5.1 The Services (excluding any Data Set) are provided on a subscription basis.  The term of Customer’s subscription is set forth in the applicable Order Form (the “Subscription Term”).  Subscription fees for each Subscription Term (the “Subscription Fees”) must be paid in accordance with the terms and via the payment method set forth in the applicable Order Form.

5.2 Customer is responsible for keeping all payment information accurate and up-to-date; failure to do so may prevent Radius from collecting amounts due hereunder.  Without limiting its other rights and remedies, Radius may suspend access to the Services or any portion thereof if Customer is late in making any payment when due.  Late payments will bear interest at the rate of 1.5% per month (or the highest rate allowed by applicable law, whichever is lower) until paid.  All amounts paid hereunder are non-refundable (except as described in Section 6.3 below) and non-creditable.

5.3 Customer is responsible for withholding, filing, and reporting all taxes, duties, and other governmental assessments associates with its activity in connection with the Services.

6. TERM AND TERMINATION; SUSPENSION

6.1 The initial term of this Agreement shall be as described in the applicable Order Form (“Initial Subscription Term”), unless earlier terminated as described in this Section 6.  This Agreement will automatically renew for an additional term that is equal in length to the Initial Term and continue to automatically renew in the same manner thereafter (each, a “Renewal Subscription Term”). Either Party may prevent such auto-renewal by giving the other Party thirty (30) days written notice of its intent not to renew prior to the end of the then-current Initial or Renewal Subscription Term, as applicable. Fees applicable to each Renewal Subscription Term shall be increased by five percent (5%) over the pricing for the Services in the immediately preceding Subscription Term. Payment for a Renewal Subscription Term will be due no later than the first day of the Renewal Subscription Term, or as set forth in the Order Form, whichever is earlier.

6.2 Customer may terminate this Agreement for Radius’ material breach of this Agreement, upon fifteen (15) days’ prior written notice to Radius, provided such breach remains uncured at the end of such fifteen (15) days period.  Radius may terminate or suspend the Services immediately upon notice to Customer, if Customer breaches any of the terms or conditions of this Agreement.  Upon expiration or termination of this Agreement, Customer’s right to use the Services will immediately cease [provided that to the extent any Data Set has been transmitted into Customer’s Third Party Platform Account in accordance with Section 2.2, to the extent Customer continues to have access to such Third Party Platform account, such Data Set will not be deleted therefrom by Radius, and Customer may continue to use such Data Set for its own internal business purposes, and for no other reason.]  The following Sections shall survive any termination of this Agreement: 2, 3, 4, 5 (as it relates to amounts due hereunder incurred prior to termination as permitted in Section 6), 6, 8-10, and 12 -13.

6.3 If this Agreement is terminated by Customer for Radius’ breach, Radius will, following such termination, grant to Customer a pro-rata refund (based on the amount of time remaining in the then-current Subscription Term) of amounts pre-paid by Customer for Subscription Fees for such Subscription Term.  If this Agreement is terminated by Radius for Customer’s breach, or by Customer for convenience, (a) no refunds will be granted, and (b) if Customer has committed to a multi-year Subscription Term but has only pre-paid a portion of the Subscription Fees therefor, all remaining Subscription Fees that would have been payable for such Subscription Term shall immediately become due and payable upon termination.  No refunds will be granted with respect to amounts paid for Data Sets.

7. SUPPORT

Radius offers email-based support.  Customer may contact the support desk at support@radius.com.  Radius does not make any promises regarding how quickly it will respond to a request for support, or that it will be able to fix any problems Customer may be having.  Any suggestions by Radius regarding use of the Services shall not be construed as a warranty.

8. WARRANTY DISCLAIMER

THE SERVICES AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND.  RADIUS HEREBY DISCLAIMS (ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REGULATORY COMPLIANCE, PERFORMANCE, ACCURACY, AVAILABILITY, RELIABILITY, TITLE, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTIES CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

9. LIMITATION OF LIABILITY

EXCEPT FOR DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (PRIVACY AND CONFIDENTIALITY) OR SECTION 4 (INTELLECTUAL PROPERTY RIGHTS), TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL RADIUS (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE FOR (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, (II) THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OR CORRUPTION OF DATA, ERROR OR OMISSION IN THE SERVICES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, (III) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (A) ONE-THOUSAND US DOLLARS ($1000) OR (B) THE AMOUNTS PAID AND/OR PAYABLE BY CUSTOMER TO RADIUS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; IN EACH CASE WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND WHETHER OR NOT RADIUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

10. INDEMNIFICATION

Customer shall defend, indemnify, and hold harmless Radius, its affiliates, and each of its, and its affiliates, employees, contractors, directors, supplier and representatives, from and against any liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, arising from Customer’s actions in connection with any breach of this Agreement and/or unauthorized use of the Services or Software, including any claim that such actions violate any applicable law or third party right.

11. U.S. GOVERNMENT MATTERS

11.1 Notwithstanding anything else, Customer may not provide to Radius or any other person (whether through the Services or any other means), or export or re-export, or allow the export or re-export of the Services, any data or information, or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  Use of the Services is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.

11.2 As defined in FAR section 2.101, any software and documentation provided by Radius are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

12. MISCELLANEOUS

12.1 The failure of Radius to comply with any provision of these Terms due to an act of God, flood, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of the control of Radius (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of these Terms.

12.2 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.3 This Agreement is not assignable, transferable or sublicensable by Customer except with Radius’ prior written consent. Radius may transfer and assign any of its rights and obligations under this Agreement freely and without consent.

12.4 Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein; the Terms of Service and Privacy Policy located on Radius’ website at radius.com continues in full force and effect with respect to the subject matter thereunder.

12.5 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Radius in any respect whatsoever.

12.6 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

12.7 Any failure of Radius to enforce or exercise any provision of these Terms or related right shall not constitute a waiver of that right or provision.

12.8 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  Radius will not be liable for any loss resulting from a cause over which it does not have direct control.

12.9 This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. For claims not subject to arbitration as set forth in Section 13, the federal and state courts sitting in San Francisco, California will have sole and exclusive jurisdiction and venue with respect to any disputes arising from or related to this Agreement or the Relationship between the Parties.

12.10 Customer agrees to participate in press announcements, case studies, trade shows, or other forums reasonably requested by Radius.  Radius is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion (including without limitation in its publicity and marketing materials).

12.11 E-Sign Disclosure. The Parties consent to the use of an electronic record to document their execution of this Agreement. Customer may withdraw its consent to the use of the electronic record by sending an email to their account executive with “Revoke Electronic Consent” in the subject line. To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, send an email to your account executive with contact information and the address for delivery.

12.12 Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement, acceptance, waiver, or modification purportedly takes place within or through the Services, through Customer’s action (such as a click-through acceptance or an electronic signature) or inaction. Any modifications or additions to this Agreement presented through a Void Contracting Method are void and of no effect, even if Radius purportedly accepts or agrees to them through the method specified in the Void Contracting Method.

13. BINDING ARBITRATION & CLASS ACTION WAIVER

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

Radius and you agree that the Agreement, including the Terms, affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

Initial Dispute Resolution: The Parties agree that most disputes can be resolved without resort to litigation. The Parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. Accordingly, before initiating a lawsuit or arbitration, you agree to contact your Customer Success Manager to attempt to resolve the dispute in good faith.

Binding Arbitration & Class Action Waiver: If the Parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either Party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to the Agreement (including its formation, performance and breach), the Parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.  Thus, YOU AND RADIUS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in state or federal court located in San Francisco, California.

The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to any claim that all or any part of the Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the Parties and may be entered as a judgment in any court of competent jurisdiction.

To start an arbitration, you must do the following things: (a) write a Demand for Arbitration. The demand must include a description of the claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com; (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to: JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111, 415-982-5267; and (c) send one copy of the demand for arbitration to us at 225 Bush Street, Suite 1200, San Francisco, CA 94104.

If any court or arbitrator determines that this arbitration provision is void or unenforceable for any reason or that the parties are not bound to arbitrate their claims, then the disputes, claims or controversies deemed not to be subject to arbitration must be litigated in state or federal court located in San Francisco, California.

Exception: Litigation of Intellectual Property Claims: Notwithstanding the foregoing, disputes, claims, or controversies concerning (1) either Party’s patents, copyrights, moral rights, trademarks, and trade secrets or (2) claims of piracy or unauthorized use of the Services (collectively, “IP Claims”) shall not be subject to arbitration. The Parties agree that the Initial Dispute Resolution provision shall not apply to IP Claims. The federal and state courts in San Francisco, California, have sole and exclusive jurisdiction and venue over IP Claims.