Severity Level
1
This Master Cloud Software License and Services Agreement (“Agreement”) is entered into by and between SimpleDataLabs, Inc. dba Prophecy, Inc. (“Prophecy”) and you (“Customer”) and is effective as of the last signature date on the Order referencing this Agreement (“Effective Date”). As used in this Agreement, “Party” means either Prophecy or Customer, as appropriate, and “Parties” means both Prophecy and Customer.
This Agreement is a master agreement under which Customer may license the Prophecy Cloud and receive Support and Professional Services in respect of such Prophecy Cloud from Prophecy, as specifically set out in one or more Orders or Statements of Work. The capitalized terms in this Agreement are defined in Section 9 (“Definitions”) or otherwise defined in the body of this Agreement.
Each Order and Statement of Work: (i) is subject to this Agreement; (ii) will be a part of this Agreement as if fully included within its body; and (iii) will set forth the Fees and Subscription Term for the Prophecy Cloud and/or Professional Services, and certain other terms applicable to such Prophecy Cloud and Professional Services. Absent the execution of an Order or a Statement of Work, this Agreement does not, in and of itself, represent a commitment by Customer to order any products or services from Prophecy. To become effective, an Order or a Statement of Work, and any modifications or amendments thereto, must be signed by an authorized representative of each Party.
Subject to Customer’s compliance with this Agreement, including the timely payment of all applicable Fees, Prophecy hereby grants to Customer a limited, non-perpetual, non-exclusive, revocable, non-transferable license to Use the Prophecy Cloud together with the Documentation generally provided with it during the Subscription Term described in each Order, solely for Customer’s internal use and business purposes and subject to the Documentation (the “License”).
Customer is responsible for any activity occurring under its Named User accounts and will ensure that it and its Named Users abide by all local, state, national and foreign laws, treaties, and regulations applicable to Customer’s use of the Prophecy Cloud. Customer is solely responsible for any decisions made or actions taken in connection with its usage of the Prophecy Technology. Customer will: (i) not share (and will instruct each Named User not to share) such credentials with any other person or entity or otherwise permit any other person or entity to access or use the Prophecy Cloud; (ii) notify Prophecy promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (iii) notify Prophecy promptly and use reasonable efforts to promptly stop any unauthorized use, copying, or distribution of the Prophecy Cloud that is known or suspected by Customer or its Named Users; or (iv) not impersonate another Prophecy user or provide false identity information to gain access to or use the Prophecy Cloud. During the Subscription Term, Prophecy hosts software for the cloud service and the Customer has no contractual right, or otherwise, to take possession of the software or the right of software hosting at any time.
Customer and its Named Users will not and will not allow any third party contractors delivering information technology services to Customer (“Third Party Agents”) to: (i) decompile, disassemble, decode, redesign, reverse engineer, or attempt to reconstruct or discover any source code, algorithms, architecture, or other elements of the Prophecy Technology; (ii) translate, adapt, modify or create derivative works from the Prophecy Technology; (iii) write or develop any program based upon the Prophecy Technology; (iv) use the Prophecy Technology for benchmarking or ‘service bureau’ purposes or in a manner that overburdens or that threatens the integrity, performance, or availability of, the Prophecy Cloud; (v) sell, sublicense, transfer, or otherwise assign or grant to any third party any rights in the Prophecy Technology; (vi) allow access to unauthorized persons to the Prophecy Technology; or (vii) otherwise use the Prophecy Technology except as expressly permitted hereunder. Customer is fully responsible for its Third Party Agents’ compliance with the terms and conditions of this Agreement and any breach of this Agreement by a Third Party Agent shall be deemed to be a breach by Customer.
Each individual will be assigned a unique Named User identification that cannot be shared or used by more than one person. The number of Named Users and their user level will be specified in the applicable Order. Additional Named Users may be purchased pursuant to the Parties signing an Order and unless otherwise specified in the relevant Order, the Subscription Term of additional Named Users shall be coterminous with the Subscription Term in effect at the time the additional Named Users are added. Named User subscriptions may be reassigned to new Named Users replacing former Named Users who no longer require use of the Prophecy Cloud and unless otherwise specified in the relevant Order, the replacement Named User shall be under the same Subscription Term of the original Named User.
Prophecy reserves the right to periodically review the number of Named Users, number of connectors, apps, objects, and Customer usage. Customer may have certain usage limits as specified in the applicable Order, which, if exceeded, will subject Customer to increased Fees. Without limiting the foregoing and with two (2) days prior written notice, Prophecy has the right to remove any unauthorized users to the Prophecy Technology that Prophecy finds to be in violation of the number of Named Users specified under the applicable Order.
The Prophecy Technology is licensed and not sold. As between Prophecy and Customer, Prophecy hereby retains all right, title, and interest, including all intellectual property rights, in and to the Prophecy Technology, all copies and portions thereof, and all improvements, enhancements, modifications, and derivative works thereof, and all intellectual property rights therein. As a condition of the License, Customer must retain all proprietary, copyright and other attribution legends on all copies of the Prophecy Technology. Customer agrees that Prophecy has the right to use in any manner and for any legal purpose any feedback or suggestions which Customer may choose to provide to Prophecy.
As between Customer and Prophecy, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that it has and will have all rights and consents necessary to allow Prophecy to use all such data as contemplated by this Agreement. Customer hereby grants to Prophecy a royalty-free, fully paid, non-exclusive, non-transferable (except as set forth herein), non-sub-licensable, worldwide right to use and process Customer Data to provide Customer the Prophecy Cloud and any other activities expressly agreed to by Customer.
Prophecy will maintain a written information security program of policies, procedures, and controls governing the Prophecy Cloud and the processing, storage, transmission, and security of Customer Data, as described in the Prophecy Security Portal (https://security.prophecy.io/) (“Security Program”). Prophecy may periodically review and update the Security Program to address new and evolving security technologies, changes to industry standard practices, and changing security threats, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein. Prophecy will process Personal Data on Customer’s behalf according to the terms of the Prophecy Data Privacy Addendum available here: https://www.Prophecy.io/dpa and incorporated by reference, as applicable.
Prophecy may access and utilize log files and metadata derived from Customer’s use of the Prophecy Cloud to maintain and improve the Prophecy Technology, provided that such data is aggregated or otherwise anonymized and the Named Users will not be identified.
Subject to Customer’s timely payment of all applicable Fees, Prophecy will provide to Customer the Professional Services, if any, identified on one or more Statement of Work or Order. Except as set out in an Order or in an Statement of Work, Customer is solely responsible for integrating the Prophecy Cloud with Customer’s systems and any other platform, add-on, service, code or product not provided by Prophecy. Nothing in this Agreement shall be understood to prevent Prophecy from providing similar Professional Services to other customers, as those Professional Services do not constitute ‘work for hire’ and instead are a derivative of the Prophecy Technology.
Together, Support and Professional Services are referred to as “Services”.
Definitions. Except as otherwise modified or defined herein, all capitalized terms in this Service Level Agreement (“SLA”) have the same meanings as outlined in the Master SaaS Agreement to which this is attached (collectively, “Agreement”). SLA. Subject to the terms of this SLA, Prophecy will make the Prophecy Cloud available to Customer with an uptime guarantee of 99% per calendar month (“Uptime Target”). Status is viewable at https://status.prophecy.io/
SLA Claims
Exclusions. Unavailability of the Prophecy Cloud shall not count against the Uptime Target for: (i) Prophecy Services outside the scope described in the Agreement; (ii) unavailability due to Customer’s equipment and/or third-party software, hardware, or network infrastructure outside of Prophecy’s data center and not under the direct control of Prophecy; (iii) failure of Customer to meet the configuration requirements for Customer’s equipment outlined in the Documentation; or (iv) a Force Majeure Event.
Customer will pay Prophecy the non-refundable and non-recoupable (except as otherwise provided for herein): (i) fees for the Prophecy Cloud and Support set forth in any Order or Statement of Work (“Subscription Fees”); (ii) fees for the Professional Services set forth in any Order or Statement of Work (“Professional Services Fees”); and (iii) all other mutually agreed upon fees set forth in any Order or Statement of Work (“Other Fees”), collectively the “Fees”. Failure to use the Prophecy Cloud or Services does not constitute a basis for refusing to pay any Fees.
Currency, Interest Rates. Payment term and currency will be as set out in the applicable Order or Statement of Work. For past due undisputed Fees, interest accrues from the payment due date at the greater of a rate of 1.5% per month or the highest rate allowed by law.
Where the Customer disputes any amount invoiced in good faith, it will: (i) notify Prophecy as soon as reasonably practicable, however, not later than five (5) business days after receipt of the relevant invoice; (ii) pay the balance of the invoice that is not in dispute by the due date; and (iii) pay the balance and any interest as set out in Clause 3.2 above on sums found or agreed to be due within five (5) business days after resolution of the dispute.
Prophecy’s Fees do not include any local, state or federal sales, use, excise, personal property, VAT, or other similar taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, any withholding tax, and any such taxes, to the extent legally applicable, which shall be borne and paid by Customer) (collectively, “Taxes”). Customer must pay all Taxes or other similar fees or duties arising out of this Agreement other than taxes based on Prophecy’s net income and will indemnify Prophecy for all expenses incurred as a result of Customer’s failure to timely pay such taxes. It is Customer’s responsibility to submit any relevant tax documents, including without limitation tax exemption certificates, at the time of execution of the applicable Order or Statement of Work and in any event no later than seven (7) days following such execution, in order for Prophecy to bill taxes accordingly.
The Parties agree that Affiliates of Customer may execute its own Order or Orders with Prophecy, as mutually agreed by the parties. This will create a separate agreement between Prophecy and the Affiliate incorporating the terms of this Agreement whereby the Affiliate shall be deemed “Customer”. Neither Customer nor Customer’s Affiliate shall have any rights under each other’s agreement with Prophecy and a breach or termination of any such agreement will not result in a breach or termination of any other agreement.
This Agreement will start on the Effective Date and will continue until terminated pursuant to Section 4.2 or 6.1(iv) below.
Either Party may terminate this Agreement by written notice if: (i) the other Party is in material breach of this Agreement (including non-payment), which is not cured within thirty (30) days after written notice of such breach is received; (ii) the other Party ceases to operate without a successor; (iii) the other Party seeks protection under bankruptcy or comparable proceedings; or (iv) the other Party makes an assignment for the benefit of its creditors, or takes similar actions.
Upon the effective date of expiration or termination of this Agreement for any reason, Customer must cease use of the Prophecy Technology and: (i) all outstanding Orders, Statements of Work and the corresponding Licenses shall automatically and immediately terminate, Prophecy may disable access keys, and Customer will have no further rights to the Prophecy Technology; (ii) all outstanding payment obligations of Customer immediately become due and payable; and (iii) each Party must promptly return or certify the destruction of all tangible embodiments of the other Party’s Confidential Information. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.4(a) (Restrictions), 1.5 (Proprietary Rights), 3 (Fees; Payment), 4.3 (Effect of Termination), 5 (Confidentiality), 6 (Indemnification), 7 (Warranty Disclaimer), 8 (Exclusion of Certain Damages; Limitation of Liability), and 10 (General Provisions), as well as any other provisions which by their nature or context survive the termination of the Agreement.
“Confidential Information” means: (i) any information disclosed, directly or indirectly, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is designated as ‘confidential’, or in some other manner to indicate its confidential nature; and (ii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Prophecy Technology and the terms (but not the existence) of this Agreement are the Confidential Information of Prophecy. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to an obligation of confidentiality. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party and will take at least those measures that it takes to protect its own most highly categorized confidential information.
If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will, where permitted by law, promptly notify the Disclosing Party in writing and will, where permitted by law, reasonably cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy at the Disclosing Party’s expense. If disclosure is ultimately required, the Receiving Party will furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.
Prophecy will indemnify, defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Prophecy Technology, as delivered to Customer and used as authorized in this Agreement and Documentation, infringes or misappropriates any U.S. patent, copyright or trade secret of any third party (“Infringement Claim”), and pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Prophecy; provided that Customer provides Prophecy: (a) prompt written notice of the Infringement Claim; (b) sole control over the defense and settlement of the Infringement Claim; and (c) all information and assistance reasonably requested by Prophecy in connection with the defense or settlement of, any such Infringement Claim. If any Infringement Claim is brought or, in Prophecy’s judgment, may be threatened, Prophecy may, at its sole option and expense: (i) procure for Customer the right to continue to use the applicable Prophecy Technology; (ii) modify the Prophecy Technology to make it non-infringing; (iii) replace the Prophecy Technology with non-infringing technology that is functionally equivalent to the Prophecy Technology; or (iv) if none of the foregoing is commercially practicable, terminate this Agreement upon written notice to Customer, and refund a pro rata portion of unused and pre-paid Fees for the outstanding balance of the then current Subscription Term.
Notwithstanding Section 6.1, Prophecy will have no liability to Customer for any Infringement Claim arising out of or based upon: (i) use of the Prophecy Technology in combination with software, products, or services not provided by Prophecy; (ii) any modification of the Prophecy Technology not made or authorized in writing by Prophecy; (iii) Customer’s failure to use the Prophecy Technology in accordance with this Agreement or Documentation, or otherwise using the Prophecy Technology for purposes for which it was not designed or intended; or (iv) use of any specified release of the Prophecy Cloud after Prophecy notifies Customer that continued use of such release may subject Customer to an Infringement Claim, if Prophecy provides a replacement release.
This Section 6 states the entire liability and obligations of Prophecy and the sole and exclusive remedy of Customer with respect to any actual or alleged Infringement Claim.
Customer will (i) indemnify, defend, or at its option settle, and hold Prophecy and its affiliates harmless against any and all claims brought against Prophecy and its affiliates by a third party relating to (a) Prophecy’s processing of the Customer Data and/or (b) Customer’s use of the Prophecy Technology other than pursuant to this Agreement and the Documentation; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Customer; provided that Prophecy provides Customer: (x) prompt written notice of any such claim; (y) sole control over the defense and settlement of (except that Customer may not settle any claim against Prophecy unless it unconditionally releases Prophecy of all liability); and (z) all information and assistance reasonably requested by Customer in connection with the defense or settlement of any such claim.
7.1 Warranty.
Prophecy represents and warrants to Customer that: (i) subject to the SLA, the Prophecy Cloud will function materially in accordance with the applicable Documentation; and (ii) the Services will be conducted in accordance with generally accepted industry standards.
7.2 Disclaimer.
Except as expressly set forth in this Agreement, the Prophecy Cloud, Prophecy Agent, Documentation, Support and Professional Services are provided ‘as-is’ without representation or warranty of any kind, whether express, implied or statutory. Prophecy hereby disclaims any and all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from conduct or course of dealing. Without limiting its obligations under Section 2 (Support; Professional Services; Service Level), Prophecy does not warrant that the Prophecy Technology will be error-free or will work without interruptions, and Customer relies on the Prophecy Technology at Customer’s own risk. Some jurisdictions do not allow the exclusion of certain warranties in certain circumstances and, accordingly, the limitations set forth above apply to the maximum extent permitted by applicable law.
7.3 Beta Versions and Trials.
Prophecy may invite Customer to participate in Trials and to access any Beta Versions and Customer may, at its own discretion, accept or decline participation in any such Trial or access to Beta Versions. Trials and Beta Versions are for evaluation purposes only and not for production use and may be subject to additional terms. Prophecy is under no obligation to maintain, support, update, or provide error corrections for the Trials or Beta Versions. Any and all Trials and Beta Versions that Prophecy makes available to Customer are provided wholly “AS-IS” and Prophecy disclaims any and all warranties, liabilities, claims, losses and/or damages arising out of or in connection with Customer’s Trials or use of Beta Versions. Prophecy’s liability for Trials and Beta Versions will not exceed 50 USD (fifty United States dollars).
In no event will either Party be liable for any indirect, special, incidental, exemplary, punitive, treble or consequential damages (including, without limitation, loss of business, revenue, profits, goodwill, data or other economic advantage) arising out of or relating to this Agreement, however caused and based on any theory of liability, whether breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if the other Party is advised of the possibility of such damages.
Each Party’s total liability (including attorneys’ fees) arising out of or related to this Agreement will not exceed the amount paid by Customer to Prophecy under this Agreement during the twelve (12) month period prior to the date the claim arose.
The foregoing limitations under this Section do not apply to (i) Customer’s breach of sections 1.2 (License Grant) or 1.4(a) (Restrictions); (ii) Prophecy’s indemnification obligations under Section 6.1 or Customer’s indemnification obligations under Section 6.4; (ii) damages arising out of a breach of the other party’s intellectual property rights; (iii) damages arising out of a Party’s gross negligence or willful misconduct; or (iv) any other liability that cannot be excluded under applicable law.
The limitations under this Section 8 will apply regardless of the form or action and even if any limited or exclusive remedy in this Agreement fails of its essential purpose. Neither Party may bring a claim or action regardless of form, arising out of this Agreement, more than twelve (12) months after the claim or cause of action arose.
These words and expressions will mean the following:
“Agreement” means this Master Services Agreement together with any applicable Orders, Statements of Work and any exhibits, appendices, schedules, or attachments, and any amendments attached hereto or hereafter attached by mutual written agreement of the parties (all of which are incorporated herein by reference).
“Affiliate” means any entity directly or indirectly controlled or owned by a party where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
“Prophecy Cloud” means the then available Prophecy software-as-a-service data intelligence platform identified in the relevant Order, as updated from time to time, with the features and functionality described in the Documentation. The Prophecy Cloud excludes any platform, add-on, service, code or product not provided by Prophecy.
“Prophecy Technology” means, collectively, the Prophecy Cloud, Documentation, and Prophecy’s Confidential Information (as defined in Section 5), as applicable.
“Beta Versions” mean Prophecy’s services or functionality that are not generally made available which are designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Customer Data” means any data that the Customer or its Named Users submit to the Prophecy Cloud.
“Documentation” means, without limitation, the end user manuals, operation instructions, installation guides, release notes and online help files regarding use of the Prophecy Cloud, as provided to Customer and which may be revised from time to time.
“Named User” means a specific Customer’s employee or contractor authorized by Customer to use the Prophecy Cloud, regardless of whether such Named User is using the Prophecy Cloud at any given moment.
“Order” or “Statement of Work” means an ordering document specifying the products and services to be provided hereunder that is entered into between Customer and Prophecy or any of their Affiliates, including any addenda and supplements thereto.
“Personal Data” means any information relating to an identified or identifiable natural person, as further defined in applicable laws.
“Professional Services” means the professional services provided by Prophecy to assist Customer in Using the Prophecy Cloud, as identified in an Order or Statement of Work.
“SLA” means the Prophecy Service Level Agreement, the current version of which is attached hereto as Exhibit B.
“Subscription Term” means the term of the License as described in the Order.
“Trial” means Customer’s internal evaluation of Prophecy Cloud functionalities made available by Prophecy during the period designated by Prophecy (or, if silent, fifteen (15) days).
“Updates” means, without limitation, updates, bug fixes, version improvements and error corrections for the Services to the same extent it does so for its customers generally.
“Use” means that Customer may access, utilize or otherwise interact with the Prophecy Cloud by up to the number of Named Users to which Prophecy provides license keys.
Any required notice must be given in writing by customary means with receipt confirmed at the address of each Party set forth below, or to such other address as either Party may substitute by written notice to the other, or by electronic transmission to the email address below. Notices will be deemed to have been given at the time of actual delivery in person, one day after delivery to an overnight courier service, three days after deposit in the Party’s local mail, or upon acknowledgment of receipt of electronic transmission.
This Agreement (together with the Exhibits, Orders and Statements of Work hereto) is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The headings herein are inserted for convenience and will not affect the interpretation of this Agreement. In the case of conflict, the following order of precedence applies: first, this Agreement, second, Order(s) and third, Statements of Work, provided that if an Order or an Statement of Work, by its explicit terms, states that it is intended to supersede an identified provision of this Agreement, it then shall so supersede. This Agreement may be executed in counterparts, including electronic copies, each of which is deemed an original and which together constitute the same document.
Except as otherwise provided herein, any amendment to this Agreement will only be valid if it is in writing and signed by a duly authorized representative of each Party. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Prophecy to object to such terms.
Neither Party will assign or transfer any part of this Agreement without the prior written consent of the other Party, except in the case of an assignment due to corporate reorganization, change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions by either Party, which may occur without written consent. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
Waiver of any term of this Agreement or forbearance to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable, or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.
The relationship between the Parties is of independent contractors. The Agreement doesn’t create a partnership, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
Prophecy may reference Customer’s name, branding, and logo in Prophecy’s marketing materials and as part of its sales presentations to other potential customers.
Except for the obligation to pay Fees, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, pandemics, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental acts including restrictions, epidemics, pandemics, hacker attack, or failure of the Internet (each a “Force Majeure Event”). The Party suffering a Force Majeure Event will give the other Party written notice of such a Force Majeure Event and will use reasonable efforts to mitigate against the effects of such Force Majeure Event. In the event a Party suffers a Force Majeure Event that lasts longer than ninety (90) continuous days, the other Party may terminate the Agreement or an Order Form immediately upon written notice.
The Prophecy Cloud may incorporate third-party open source software (“OSS”), as set out in the Documentation or provided upon request. Customer’s use of the Prophecy Cloud in compliance with the terms of this Agreement will not require Customer to comply with the terms of the OSS licenses.
Each Party will comply with all applicable laws and government regulations, including, if applicable, the export laws and regulations of the United States and other applicable jurisdictions, in connection with providing and using Prophecy Technology. Without limiting the foregoing, (i) each Party represents that is not named on any government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not, and shall ensure that Named Users do not, violate any export embargo, prohibition, restrictions or other similar law in connection with this Agreement.
Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restrictions.
This Agreement is governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Mateo County and the federal courts located in the City and County of San Francisco, California. If either Party breaches or threatens to breach the provisions of Sections 1.2, 1.3, 1.4 or 5, each Party agrees that the non-breaching Party may have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.