This Channel Partner Agreement (this "Agreement"), is entered into between Boring Lab, LLC, having its principal place of business at 920 North Nash Street, Building B, El Segundo, California 90245 ("Supplier" or “Boring Lab”), and you ("Partner," and together with Supplier, the "Parties," and each, a "Party").
Supplier is in the business of developing, providing, and selling the Software (as defined below), and Supplier has compiled a reseller sales guide (the “Guide”), which contains additional terms and conditions that are integrated by reference and may be updated from time to time by Supplier.
Partner is in the business of marketing and reselling products like Software in the Territory (as defined below).
Supplier desires to sell the Software to Partner and appoint Partner as its non-exclusive reseller for the marketing and sale of the Software to End Users (as defined below) within the Territory in accordance with the terms and conditions of this Agreement.
Partner desires to purchase the Software from Supplier and resell the Software to End Users in the Territory, in accordance with the terms and conditions of this Agreement,
In consideration of the mutual covenants, terms and conditions set out in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
Capitalized terms have the meanings set out in this Section 1, or in the section in which they first appear in this Agreement.
"Affiliate" of a Party means any other entity or individual that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, that Party.
"Agreement" has the meaning set out in the preamble and includes all exhibits and schedules to this Agreement.
"End User" means an individual or entity located in the Territory that may purchase or has purchased Software from Partner for its own internal use.
"Effective Date" means the date this Agreement is executed by the Parties.
"Party" has the meaning set out in the preamble.
"Software" means those products identified on Supplier’s list of software and associated fees (the “Price List”), which may be revised pursuant to Section 5.2 from time to time.
"Partner" has the meaning set out in the preamble.
"Supplier" has the meaning set out in the preamble.
"Term" has the meaning set out in Section 8.
"Territory" means the geographic area specified by Supplier for the specific Partner.
"Trademarks" has the meaning set out under Section 7.
2. Appointment.
2.1Non-Exclusive Appointment. Supplier hereby appoints Partner, and Partner hereby accepts the appointment, to act as Supplier's non-exclusive reseller of the Software to End Users in the Territory during the Term in accordance with the terms and conditions of this Agreement. Supplier may in its sole discretion market, distribute, and sell the Software, directly or indirectly, to End Users in the Territory. Partner shall not sell or offer to sell Software outside the Territory or to distributors or resellers. Partner shall direct to Supplier all inquiries received regarding potential sales of the Software outside the Territory.
3. Partner Obligations.
3.1Marketing and Sale of Software. Partner shall, at its expense:
(a)advertise, market, promote, and sell the Software in a manner that is consistent with good business practice, using commercially reasonable efforts to maximize the sales volume and expand the sale of the Software to End Users;
(b)establish and maintain a qualified and trained sales and marketing organization sufficient to develop to the Supplier's reasonable satisfaction the market potential for the sale of the Software;
(c)have and maintain sufficient knowledge of the industry and the Software, including the Software's standard protocols and features and differences between the Software and competing products;
(d)use promotional and marketing materials provided by Supplier under Section 4.1(a) without modification and only to market, advertise, promote, or sell the Software, and not use any other promotional and marketing materials for the Software without the prior written consent of Supplier, which consent shall not be unreasonably withheld or delayed; and
(e)comply with all reasonable directions and instructions from Supplier for the marketing, advertising, and promotion of the Software, including Supplier sales and marketing policies.
3.2Reporting, Records, and Inspection. Partner shall, at its expense:
(a)submit to Supplier monthly reports regarding marketing, orders, and sales of the Software, including the name and address of the End Users to whom the Software is sold and any other information relating to the performance of its obligations under this agreement that Supplier may reasonably request from time to time;
(b)promptly notify Supplier of any complaint or adverse claim about the Software or their use or any potential product safety issue related to the Software of which Partner becomes aware; and
(c)maintain books, records, and accounts of all transactions relating to the Software and activities covered by this Agreement and, on Supplier's request, allow Supplier's authorized representatives to inspect such books, records, and accounts during normal business hours as needed to verify compliance with the terms of this Agreement.
3.3Authority to Perform. Partner shall, at its expense, obtain and maintain all required certifications, credentials, licenses, permits, registrations, authorizations necessary to conduct its business in accordance with this Agreement.
3.4Prohibited Acts. Partner shall not:
(a)Make any false or misleading representations or warranties to any End User regarding Supplier or the Software;
(b)Make any representations or warranties to End Users regarding the specifications, features, or capabilities of the Software that are inconsistent with the materials provided by Supplier;
(c)engage in any unfair, anti-competitive, misleading, or deceptive practices regarding Supplier or the Software;
(d)make any modifications to the Software, including their labeling or packaging, or market, distribute, or sell the Software other than in the form and packaging as delivered by Supplier under this Agreement; or
(e)resell the Software to any individual or entity that Partner knows or has reason to suspect may resell the products to a third party.
3.5Limited End User Support. Partner shall, at its expense, provide technical assistance to End Users as set forth in Supplier’s current support policies. Except as otherwise provided in such policies or in a separate written agreement with Supplier, Partner shall not service, repair, modify, alter, replace, reverse engineer, or otherwise change the Software it sells to End Users.
(a)Not-for-Resale (NFR) Licenses. If Boring Lab provides Partner with Not-for-Resale ("NFR") software licenses, Partner’s use of those licenses is governed by the software's accompanying License Agreement(s), with the following exceptions:
(i)Partner may use NFR licenses only for product demonstrations and internal staff training.
(ii)Partner cannot use NFR licenses to run its own daily business operations, use them for commercial data processing, or resell/redistribute them to any third party.
(iii)Partner may only use NFR licenses during the Term of this Agreement.
(iv)Immediately upon the expiration or termination of this Agreement, Partner must stop using all NFR licensed Software, return all physical copies of the software to Boring Lab, and permanently delete all copies of the software from any computers, servers, or storage media owned or controlled by Partner.
3.7Internal Use Licenses. Partner may purchase software licenses from Boring Lab for its own internal business operations. Unless the parties agree otherwise in writing, Partner's use of this software is strictly governed by the standard License Agreement that accompanies the software.
4. Supplier Obligations.
4.1Assistance with Marketing and Promotion. Supplier shall:
(a)provide promotional information and material for use by Partner in accordance with this Agreement; and
(b)provide any information, material, and support for the marketing, advertising, promotion, and sale of Software to enable Partner to discharge its duties under this Agreement.
4.2Software Regulatory Compliance. Supplier shall:
(a)ensure the Software complies in all material respects with applicable laws affecting the manufacture and sale of the Software in the Territory; and
(b)obtain and maintain any material licenses, permits, notifications, registrations, authorizations, or approvals from the applicable regulatory authority or authorities that are required to lawfully sell the Software in the Territory.
5. Agreement to Purchase and Sell Software.
5.1Terms of Sale. Supplier shall make available and sell Software to Partner, and Partner shall purchase Software from Supplier, on the terms and conditions set out in this Agreement. The terms and conditions of all orders under this Agreement are limited to the terms of this Agreement, the Purchase Order (defined below), the Guide, and the License Agreements (together the "Purchase Order Transaction Terms"). The Purchase Order Transaction Terms supersede all terms and conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude terms and conditions contained in: (a) any purchase order or other document issued by Partner; and (b) any quotation, confirmation, invoice, or other document issued by Supplier. Modification, revision, amendment, or addition of terms and conditions, whether conflicting with the Purchase Order Transaction Terms or not, must comply with Section 20 (Amendments).
5.2Changes in and Availability of Software. Supplier may remove Software from Price List with prior notice to Partner. Supplier may make changes to the Software and shall give Partner notice of any changes to the Software as soon as reasonably practicable.
5.3Purchase Orders. Partner shall issue all Software purchase order requests (“Purchase Orders”) to Supplier via email. Purchase Orders shall contain a Purchase Order number and Supplier quoted price, or the following information (the “Order Information”):
(a)the Software products to be purchased;
(b)the term of the Software subscription;
(c)the email address of the End User;
(d)the Partner’s address; and
(e)the End User’s address.
5.4Acceptance or Rejection of Purchase Orders. Supplier shall have the sole discretion to accept or reject the Purchase Order. Supplier shall confirm to Partner the receipt of each purchase order and respond with its acceptance or rejection within five (5) business days following Supplier's receipt of the purchase order (the "Purchase Order Response Period"). If Supplier does not accept a purchase order within the Purchase Order Response Period, the purchase order is deemed to be accepted by the Supplier.
5.5Payment Terms and Invoice Disputes.
(a)Supplier shall issue invoices to Partner within five (5) business days of receiving a Purchase Order. Partner shall pay all invoiced amounts due to Supplier within the number of days agreed upon by Supplier and Partner; Partner shall make all payments by check, wire transfer, or automatic clearing house. Partner must notify Supplier if paying an invoice by credit card, in which case Partner will pay Supplier’s then-current credit card processing fee.
(b)Partner shall pay interest on all late payments, calculated daily and compounded monthly, at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law.
5.6Order Cancellation or Changes. Partner may not cancel an accepted purchase order, unless mutually agreed in writing. Partner may request changes to an accepted purchase order by submitting a written change order request to Supplier via email, which Supplier may at its discretion accept by notifying Partner. Partner may then submit an amended purchase order including the revised Purchase Order Transaction Terms set out in Supplier's acceptance.
5.7Software Delivery. Software shall be delivered digitally, with a key provided to the End User email address in the Purchase Order.
5.8End User License Agreements. Partner’s sale of Software is conditioned upon the End User agreeing to current license or other agreements for use of the particular Software (the “License Agreements”), which Supplier will specify. Partner shall present the License Agreements to End Users prior to the sale of Software, and the End User shall sign a statement affirming receipt and acceptance of such License Agreements. The End User may also be required to accept License Agreements when they install or first use the Software. If an End User does not accept License Agreements, Supplier may at its sole discretion terminate, rescind, or reject the Purchase Order.
5.9Price, Taxes, and Other Costs.
(a)The prices for Software sold under this Agreement shall be as stated in Supplier's then-current Price List as provided to Partner from time to time. Supplier may adjust its Price List at any time, provided that Supplier shall give Partner ten (10) days' notice of any increases in the prices for the Software.
(b)All prices exclude sales, use, and excise taxes, and any other similar taxes, fees, or charges imposed by any governmental authority on any amounts payable by Partner under this Agreement. Partner is responsible for all charges, taxes, and other fees imposed by any governmental authority related to its purchase, distribution, or sale of the Software.
6. Warranty.
6.1License Agreement Warranties. Supplier’s Software warranties, if any, shall be specified in the applicable License Agreements.
6.2Disclaimer. Except as expressly set out in this Agreement, Supplier does not make any express or implied representation or warranty whatsoever, including any warranties of fitness for a particular purpose, whether arising by law, course of dealing or performance, usage of trade, or otherwise, all of which are expressly disclaimed. Partner acknowledges that it has not relied on any representation or warranty made by Supplier or any other individual or entity on Supplier's behalf.
7. Trademarks.
Supplier hereby grants to Partner a non-exclusive, non-transferable, and non-sublicensable right to use Supplier's trademarks ("Trademarks") solely in connection with the promotion, advertising, and resale of the Software in the Territory in accordance with the terms and conditions of this Agreement. Partner acknowledges and agrees that the Trademarks are the sole and exclusive property of Supplier, and that Partner shall not acquire any right or ownership interest in them or any other intellectual property rights of Supplier under this Agreement, except for the right to use the Trademarks as expressly provided in this Section 7. Any goodwill derived from the use by Partner of the Trademarks inures to the benefit of Supplier. Upon expiration or termination of this Agreement, Partner's rights under this Section 7 cease immediately and Partner shall immediately discontinue all use of the Trademarks.
8. Term; Termination.
8.1Term. The term of this Agreement commences on the Effective Date and, unless earlier terminated as provided under this Agreement, continues for one (1) year and shall thereafter renew for additional successive one (1) year terms.
8.2Termination. Notwithstanding anything to the contrary in this Agreement, either Party may terminate this Agreement, without cause, at any time upon notice to the other Party, and such termination shall become effective thirty (30) days following the delivery of such notice. Any termination under this Section 8.2 does not affect any other rights or remedies to which the terminating Party may be entitled and is effective on the non-terminating Party's receipt of notice of termination or any later date set out in such notice.
8.3Effect of Expiration or Termination. The expiration or termination of this Agreement does not affect any rights or obligations that are to survive the expiration or termination of this Agreement under Section 16 or were incurred by the Parties before the expiration or termination (except as expressly provided herein). On the expiration or termination of this Agreement:
(a)Supplier may cancel all purchase orders placed before the effective expiration or termination date if delivery is due thereafter;
(b)Partner shall cease to represent itself as Supplier's authorized reseller of the Software; and
(c)Neither Party shall be liable to the other Party for any compensation as a result of the expiration or termination of this Agreement, including compensation for loss of profits or goodwill.
9. Confidential Information.
9.1From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, finances, products, services, pricing, operations, processes, plans, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, "Confidential Information"). Confidential Information shall not include information that at the time of disclosure: (a) is, or thereafter becomes, in the public domain other than as a result of, directly or indirectly, any violation of this Section 9 by the recipient; (b) was known by or in the possession of the recipient; or (c) is, or thereafter becomes, available to the recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information.
9.2The recipient shall protect and safeguard the confidentiality of the disclosing Party's Confidential Information with at least the same degree of care as the recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. The recipient shall not use the disclosing Party's Confidential Information for any purpose other than to perform its obligations hereunder and shall not disclose the disclosing Party's Confidential Information to any individual or entity at any time. Notwithstanding the foregoing, the receiving Party may disclose the disclosing Party's Confidential Information: (a) to the recipient's employees, officers, contractors and third-party advisors who have a need to know the Confidential Information for the recipient to perform its obligations hereunder, so long as such recipients have agreed to nonuse and nondisclosure obligations at least as strict as those provided in this Agreement; and (b) as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority if the recipient provides the disclosing Party prompt notice of such requirement. On the expiration or termination of the Agreement, the recipient shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information or destroy all such copies and certify in writing that that it has complied with the requirements of this Section 9. In addition to all other remedies available at law, the disclosing Party shall be entitled to seek injunctive relief for any violation or threatened violation of this Section 9.
10. Compliance With Laws and Policies.
Each Party shall at all times comply with all laws and regulations applicable to the operation of its business, this Agreement, and its performance hereunder. Partner shall comply with Supplier's policies as they may be updated from time to time by Supplier.
11. Indemnification.
11.1Indemnification. Subject to the terms and conditions of this Agreement:
(a)each Party ("Indemnifying Party") shall indemnify, hold harmless, and defend the other Party and its officers, directors, members, shareholders, employees, agents, successors, and permitted assigns (collectively, "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers incurred by the Indemnified Parties (collectively, "Indemnity Losses") relating to any claim of a third party arising out of or occurring in connection with:
(i)bodily injury, death, or damage to real or tangible personal property caused by the willful or negligent acts or omissions of the Indemnifying Party; or
(ii)failure by the Indemnifying Party to materially comply with any applicable laws.
(b)Supplier (as the Indemnifying Party) shall indemnify and defend Partner and its officers, directors, members, shareholders, employees, agents, successors, and permitted assigns (as the Indemnified Parties) against any and all Indemnity Losses relating to any claim of a third party arising out of or occurring in connection with infringement of the third party's intellectual property rights by the Supplier.
The indemnities in this Section 11.1 shall not apply if the claim or corresponding losses arises out of or result from, in whole or in part, the Indemnified Parties' gross negligence or more culpable action or omission (including recklessness or willful misconduct). Supplier’s Section 11.1 obligations exclude Indemnified Losses arising from or relating to a) Partner’s combination of Software with non-Supplier data, products, software, or services, b) use of outdated Software, for which newer versions are available, c) misuse of Software, whether foreseeable or not, d) Software modified, other than by Supplier, or e) Software customized at the request of a third-party, whether Partner, an End User, or otherwise.
11.2If an Indemnified Party becomes aware of any claim, event, or fact that may give rise to a claim by the Indemnified Party against the Indemnifying Party for indemnification under Section 11.1, the Indemnified Party shall promptly notify the Indemnifying Party. The Indemnified Party shall give Indemnifying Party control over the proceedings and shall reasonably cooperate in the investigation, settlement, and defense of such claims at Indemnifying Party's expense; provided that the Indemnified Party may, at its own expense, participate in such defense. The Indemnifying Party shall not enter into a settlement of such claim that does not include a full release of the Indemnified Party or involves a remedy other than the payment of money, without the Indemnified Party's consent. If the Indemnifying Party does not assume control over the defense of a claim as provided in this Section 11.2, the Indemnified Party may defend the claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party.
12. Limitation of Liability.
12.1Except for liability for indemnification, breach of confidentiality, or infringement or misappropriation of intellectual property rights, in no event:
(a)is either Party liable for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues, loss of data, or diminution in value of business arising out of or relating to any breach of this agreement, regardless of: (i) whether the damages were foreseeable; (ii) whether or not the Party was advised of the possibility of the damages; and (iii) the legal or equitable theory (contract, tort or otherwise) on which the claim is based;
(b)shall a Party's aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the lesser of a) the total amounts paid to Supplier under this Agreement or b) $200,000.
12.2The foregoing limitations apply even if the Parties' remedies under this Agreement fail of their essential purpose.
13. Force Majeure.
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The Impacted Party shall give notice within twenty (20) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
14. Relationship of the Parties.
The Parties to this Agreement are independent contractors and nothing in this Agreement is intended to, or shall be deemed to, create a joint venture, partnership, agency or employment relationship, franchise, or business opportunity between the Parties. Neither Party, by virtue of this Agreement, has any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and is solely responsible for their supervision, daily direction, and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement is to be accomplished. Except as provided otherwise in this Agreement, Partner has the sole discretion to determine Partner's methods of operation, accounting practices, personnel practices, and business strategy, practices, and methods.
15. Entire Agreement.
This Agreement, including and together with any related exhibits, schedules, and attachments and the Purchase Order Transaction Terms, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained in this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral. If there is an inconsistency between any of the provisions in the main body of this Agreement and the related exhibits, schedules, and attachments, the provisions in the main body of this Agreement shall prevail.
16. Survival.
Subject to the limitations and other provisions of this Agreement, Sections 3.2(c), 3.4, 5.5, 5.8, 5.9, 6, 8, 9, and 11 - 27 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or termination of this Agreement.
17. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at the addresses set forth on the first page of this Agreement (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested and postage prepaid), or email. Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section.
18. Headings.
The heads in this Agreement are for reference only and do not affect the interpretation of this Agreement.
19. Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement; provided, however, that if Section 5.8 is invalid, illegal, or unenforceable, the remainder of this Agreement is unenforceable.
20. Amendments.
No amendment to this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each Party.
21. Waiver.
No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement, and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (a) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (b) any act, omission, or course of dealing between the Parties.
22. Cumulative Remedies.
All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in this or any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Partner's rights under Section 11.1 are Partner's exclusive remedies for the events specified therein.
23. Assignment.
Partner may not assign any of its rights or delegate or subcontract any of its obligations under this Agreement without the prior written consent of Supplier. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.
24. Successors and Assigns.
This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
25. No Third-Party Beneficiaries.
Subject to the next sentence, the Parties do not confer any rights or remedies upon any other individual or entity except the Parties to this Agreement and their respective successors and permitted assigns. The Parties hereby designate the Indemnified Parties (other than Supplier and Partner) as third-party beneficiaries of Section 11 with the right to enforce such Section 11.
26. Choice of Law.
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, United States of America. Partner consents and agrees that the state and federal courts of California shall have personal jurisdiction over it, as well as subject matter jurisdiction with respect to any provision of this Agreement, and shall be the exclusive forums for any litigation arising out of or relating to this Agreement. The Parties waive the right to a trial by jury and agree to accept service of process by mail.
27. Arbitration.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH PARTNER CAN SEEK RELIEF FROM SUPPLIER. The Parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration administered by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at https://jamsadr.com. The arbitration will be conducted in Los Angeles, California, unless the Parties agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed to prevent Supplier from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of Supplier’s data security, intellectual property rights or other proprietary rights.
27.1The Parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person's claims and may not preside over any form of a representative or class proceeding and JAMS may not order a class arbitration. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration agreement will remain in force.
