Master Services Agreement

Last updated May 13, 2018


THIS MASTER SERVICES AGREEMENT ("Agreement") IS MADE BETWEEN NEW EDGE LABS, INC. ("NELI") AND THE COMPANY IDENTIFIED AS THE CUSTOMER ON THE REGISTRATION PAGE ON NELI'S WEBSITE LOCATED AT https://public.newedge.io/signup/new ("Customer"). THIS AGREEMENT TAKES EFFECT ON THE DATE WHEN IT IS ACCEPTED THROUGH THE REQUIRED PROCESS ("Effective Date"). THE PERSON ACCEPTING THIS AGREEMENT ON BEHALF OF CUSTOMER REPRESENTS THAT SUCH PERSON HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF SUCH PERSON DOES NOT HAVE SUCH AUTHORITY, OR IF SUCH PERSON DOES NOT AGREE WITH THIS AGREEMENT, THEN SUCH PERSON MUST NOT ACCEPT THIS AGREEMENT ON CUSTOMER'S BEHALF.

1. DEFINITIONS

1.1 "Authorized User" means any of Customer's employees, contractors, and any other users, in each case who are authorized to use the Services on Customer's behalf.

1.2 "Enterprise Services" means private enterprise applications and other technology services used by Customer.

1.3 "Hosted Services" means NELI's proprietary software-as-a-service applications.

1.4 "Services" means any and all Hosted Services, Software, and Support Services.

1.5 "Software" means the software applications related to the Hosted Services to be provided to Customer under this Agreement.

1.6 "Support Services" means the technical support and software maintenance services selected by Customer.

2. SERVICES

2.1 Free Trial. If Customer registers for a free trial on NELI's website, NELI will make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Services, (b) the start date of any paid subscriptions selected by Customer for such Services, or (c) termination by either party upon notice to the other party. At the end of the free trial, Customer may lose access to certain features of the Services if Customer does not purchase an equivalent or greater level of Service during the trial. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY REPRESENTATION OR WARRANTY AND NELI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD.

2.2 NELI Services. Subject to Customer's ongoing compliance with the terms of this Agreement, NELI hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right during the applicable Subscription Term to allow Authorized Users to access and use the Hosted Services, solely for Customer's internal business purposes in connection with enabling secure access to Enterprise Services.

2.3 NELI Software. Subject to Customer's ongoing compliance with this Agreement, NELI hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the applicable Subscription Term to install and run the Software in object code form only and to use any accompanying documentation, solely for Customer's internal business purposes in connection with enabling secure access to Enterprise Services.

2.4 Authorized Users. Customer is responsible for: (a) identifying and authenticating all Authorized Users, (b) approving access by such Authorized Users to the Services, (c) controlling against unauthorized access by Authorized Users, (d) maintaining the confidentiality of usernames, passwords and account information, and (e) all activities that occur under its and its Authorized Users' usernames, passwords or accounts as a result of Customer's or Customer's Authorized Users' access to the Services. NELI is not responsible for any harm caused by Customer's Authorized Users. Customer will notify NELI immediately of any unauthorized use. Customer is solely responsible for ensuring compliance with this Agreement by its Authorized Users and any breach of this Agreement by an Authorized User will be deemed a breach by Customer.

2.5 Restrictions. Customer shall not (and will ensure its Authorized Users do not), directly or indirectly, and shall not authorize any third party to, (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of, reconstruct, or discover any hidden elements of the Software or Hosted Services (except to the extent expressly permitted by applicable law); (ii) translate, adapt, or modify the Software or Hosted Services, or any portion of any of the foregoing; (iii) write or develop any program based upon the Software, the Hosted Services, or any portion thereof, or otherwise use the Services in an manner for the purpose of developing products or services that compete with the Services; (iv) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Services or any rights thereto; (v) use the Services for the benefit of, or allow access to the Services by, unauthorized persons; (vi) transmit unlawful, infringing or harmful data or code to or from the Hosted Services; (vii) alter or remove any trademarks or proprietary notices contained in or on the Software or Hosted Services; (viii) circumvent or otherwise interfere with any authentication or security measures of the Hosted Services, or otherwise interfere with or disrupt the integrity or performance thereof; (ix) use the Services in a manner that violates this Agreement, any third party rights or any applicable laws, rules or regulations; or (x) otherwise use the Services or any NELI IP (as defined below) except as expressly permitted hereunder. NELI may, but is under no obligation to, monitor Customer's use of the Hosted Service. NELI may suspend Customer's access to the Hosted Service for any period during which Customer is, or NELI has a reasonable basis for alleging Customer is, in noncompliance with this Section.

2.6 Third-Party Components. Customer is solely responsible for obtaining all third-party hardware, software, and connectivity necessary to operate the Software and access and use the Hosted Services ("Third-Party Components"), and NELI shall have no maintenance, support, warranty, or other obligations or liability regarding such Third-Party Components, whether or not NELI has provided specifications for such Third-Party Components. In particular, Customer acknowledges that a high-speed Internet connection is required at all times in order for the Software to operate properly and that NELI shall not be obligated to provide Support Services to the extent that such high-speed connection is not in operation, although all fees for such Support Services will continue to accrue during any such connectivity outage.

3. SUPPORT SERVICES; SERVICE LEVELS

3.1 Support Services. Subject to Customer's ongoing compliance with the terms of this Agreement (including timely payment of all applicable fees), NELI agrees to (a) provide reasonable technical support to Customer, by email or telephone, during NELI's normal business hours of 9am-5pm PST, excluding US holidays; and (b) use commercially reasonable efforts to respond to support requests in a timely manner, and to resolve such issues by providing updates and/or workarounds to Customer, consistent with the severity of the issues identified in such requests and their impact on Customer's business operations, in NELI's reasonable discretion.

3.2 Fixes. Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, "Fixes") necessary for the proper function and security of the Services, as such Fixes are generally released by NELI.

3.3 Service Levels. Customer may be entitled to service level credits in connection with reduced availability of the Hosted Services. NELI's sole and exclusive obligations with respect to availability of the Hosted Service, and Customer's sole and exclusive remedy in connection therewith (if applicable), are set at https://public.newedge.io/sla.

4. CUSTOMER DATA

4.1 Customer Data. Any non-public data submitted by Customer to the Hosted Service's web-accessible user interfaces is "Customer Data." However, Customer Data does not include any information that is data independently derived by NELI through analysis of the Customer Data or Usage Data (as defined in Section 4.2), to the extent such derived data does not itself contain Customer Data). NELI will implement commercially reasonable measures to secure the Hosted Services against unauthorized access to or alteration of Customer Data; provided that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Hosted Services and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of, all Customer Data.

4.2 License. Customer hereby grants to NELI a worldwide, irrevocable, perpetual, royalty-free license (i) to use all Customer Data and other data made available to NELI or transmitted through the Software or Hosted Services by or on behalf of Customer to perform NELI's obligations hereunder; and (ii) to use any non-personally identifiable information related to Customer's use of the Services ("Usage Data") to improve NELI's products and services. Customer will (a) obtain all permissions or approvals from each Authorized User as necessary for Customer to provide Customer Data to NELI, and (b) comply with all laws applicable to Customer's performance under this Agreement. Customer also grants to NELI a worldwide license, during the Term, to access Customer's network and systems, but solely as necessary for the functionality of the Services.

5. FEES; PAYMENT

5.1 Fees. For each Subscription Term (defined below) after the free trial period, Customer will pay NELI all applicable fees of the type and amount set forth at https://newedge.io/pricing/ for the Services selected by Customer, which may include, without limitation, subscription fees, license fees, support fees, and maintenance fees ("Fees"). Except as set forth in this Section 5.1, all Fees are non-refundable and non-recoupable. If Customer upgrades to a higher level of Services prior to the end of a Subscription Term, then such Subscription Term will terminate and a new Subscription Term will immediately take effect, and Customer will pay NELI the Fees for the upgraded Services. NELI will provide Customer with a credit for the unused portion of the Fees from the lower tier of Services, which credit may only be applied toward subsequent Fee payments. If Customer downgrades its level of Services, such downgrade will take effect at the end of the then-current Subscription Term, and Customer shall not be entitled to any refunds for Fees paid with respect to unused Services.

5.2 Authorization. Customer authorizes NELI or its third party payment processors to charge all sums for Services, including all applicable taxes, to the payment method specified in Customer's account. NELI or its third party payment processors may seek pre-authorization of Customer's credit card account prior to Customer's purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Customer's purchase.

5.3 Payment Terms. Fees are due monthly. Customer authorizes NELI or its third party payment processor to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer's account, all Fees on or before the payment due date for those Fees. Customer must cancel Customer's subscription or downgrade to a free subscription before it renews in order to avoid billing of the next periodic Fee to Customer's account. Customer may downgrade its subscription either from within Customer's account or by contacting NELI at support@newedge.io.

6. TERM AND TERMINATION

6.1 Term. This Agreement will begin on the Effective Date and will continue for one month. Subject to any changes in the Services tier as set forth in Section 5.1, the term will automatically renew for immediately successive terms of the same length (each such month, collectively and individually, the "Subscription Term"), unless either party cancels such subscription prior to the expiration of the applicable Subscription Term.

6.2 Termination for Material Breach or Bankruptcy. NELI may terminate this Agreement by written notice if Customer is in material breach of this Agreement, provided that, for material breaches capable of cure, Customer will have 10 days after receipt of notice to cure such material breach. NELI may terminate this Agreement with immediate effect upon the occurrence of a Bankruptcy Event regarding Customer. "Bankruptcy Event" means any one or more of the following events: (a) Customer ceases to carry on its business; (b) a receiver or similar officer is appointed for Customer's business, property, affairs or revenues; (c) Customer becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against Customer.

6.3 Termination for Convenience. Customer may terminate this Agreement at any time by providing notice to NELI at support@newedge.io, provided that no such termination by Customer will entitle Customer to a refund of any portion of the Fees.

6.4 Termination for Inactivity. NELI may terminate this Agreement upon written notice to Customer if Customer has not used or accessed the Services for a period of 90 consecutive days.

6.5 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) the licenses granted to Customer in Sections 2.2 and 2.3 will automatically terminate; (ii) Customer must immediately cease use of the Hosted Services and delete any copies of the Software within its possession or control and certify in writing the same has been completed; (iii) all outstanding payment obligations of Customer will become due and payable immediately; (iv) each party will promptly return or destroy any Confidential Information of the other party then in its possession or control; and (v) Customer may within 15 days request export of Customer Data (after which time, Company has no further obligation to store or permit retrieval of such data). The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1, 2.5, 4, 5 (with respect to Fees due), 6.5, 7, 8, 9, 10, 11, and 12.

7. CONFIDENTIALITY

7.1 Definition. "Confidential Information" means all nonpublic information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, without limitation, any information about the Services and/or its performance (including any information about errors or bugs). Without limiting the foregoing, the NELI IP (as defined in Section 8.1) and Usage Data (as defined in Section 4.2) are NELI's Confidential Information, and the Customer Data (as defined in Section 4.1) is Customer's Confidential Information. However, Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.

7.2 Use; Maintenance. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). In addition, (i) the Receiving Party will only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under this Agreement; and (ii) except as otherwise authorized by the Disclosing Party expressly in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees who need such access to perform obligations under this Agreement and who comply with the confidentiality obligations set forth in this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

8. PROPRIETARY RIGHTS; FEEDBACK

8.1 Reservation of Rights. NELI owns and retains all rights, title and interest, including all intellectual property rights, in and to (i) all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information pertaining to the Services ("NELI IP"); and (ii) the Usage Data. Other than as expressly set forth in this Agreement, no license or other rights in or to the NELI IP are granted to Customer, and all such rights are expressly reserved by NELI. Without limiting the foregoing, if NELI performs any professional services under this Agreement, NELI will own and retain all right, title and interest, including all intellectual property rights, in and to any work product or deliverables developed in connection with such professional services.

8.2 Feedback. If Customer or any user or recipient of the Services provides comments, suggestions, ideas, or other information or materials regarding the Services ("Feedback") to NELI, NELI may use, modify, and incorporate such Feedback to improve or enhance the Services or its other products and services, and Customer hereby grants to NELI a non-exclusive, perpetual, irrevocable, transferable, sublicensable, worldwide and royalty-free license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction and without any obligation to provide attribution or compensation to Customer.

8.3 Government Rights. NELI provides the Services, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The government hereby agrees that the Services qualifies as "commercial" computer software. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with NELI to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

9. REPRESENTATIONS AND WARRANTIES

9.1 Mutual. Each party represents and warrants to the other party: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) this Agreement constitutes a valid, binding, and enforceable obligation upon it; and (c) it has the full right, power, and authority to enter into and perform its obligations under this Agreement.

9.2 By Customer. Customer represents, warrants and covenants to NELI that (a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by NELI and used in accordance with this Agreement, it does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights or privacy rights of any third party or violate any applicable laws; (b) Customer is authorized to use all Enterprise Services; and (c) Customer's entry into this Agreement and its use of the Services will not cause it to breach, violate, or otherwise default under any contract to which Customer is a party.

10. INDEMNIFICATION

10.1 By NELI. NELI may (a) defend, or at its option, settle, any third-party claim brought against Customer alleging that Customer's use as authorized in this Agreement of a Service infringes a third party's intellectual property or proprietary rights (a "Claim"), and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by NELI; provided that Customer provides NELI (i) prompt written notice of, (ii) sole control over the defense and settlement of, and (iii) all information and assistance reasonably requested by NELI in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, NELI may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable Service; (x) modify the Service to make it non-infringing; (y) replace the affected aspect of the Service with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, NELI will have no liability to Customer (1) for any claim arising out of or based upon modifications of the Service not performed by NELI; third-party software, products or services provided in connection with the Services but not developed by NELI; or use of the Service in combination with software, products or services not provided by NELI; to the extent that the Service would not be infringing but for such combination or modification; (2) for Customer's failure to use the Service in accordance with this Agreement; or (3) for any claims related to Customer Data. THIS SECTION 10.1 STATES THE ENTIRE LIABILITY OF NELI, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY NELI, THE SERVICE OR OTHER NELI IP, OR ANY PART THEREOF.

10.2 By Customer. Customer will defend, or at its option, settle any claim brought against NELI or its affiliates or their employees or agents: (i) alleging that the use by or on behalf of NELI of the Customer Data infringes or misappropriates any third party's rights or violates any laws; (ii) alleging any breach by Customer or any Authorized User of this Agreement; or (iii) arising from Customer or any Authorized User's violation of any applicable laws. Customer will pay all damages finally awarded against NELI (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. NELI agrees to provide Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. NELI may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to Customer.

11. DISCLAIMER; LIMITATION OF LIABILITY

11.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NELI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, USE, LOSS OF DATA, ACCURACY OF RESULTS, OR OTHERWISE ARISING FROM A COURSE OF DEALING OR RELIANCE. NELI DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT THE SERVICES WILL BE COMPATIBLE WITH ANY PARTICULAR DEVICE, THAT ANY DATA PROVIDED BY NELI THROUGH THE SERVICE WILL BE ACCURATE, OR THAT ITS SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA OR CUSTOMER'S DEVICES. NELI SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY THIRD-PARTY SOFTWARE, PRODUCTS, OR SERVICES PROVIDED WITH THE NELI SERVICES AND FOR THE AVAILABILITY OR CUSTOMER'S USE OF ANY DATA OR INFORMATION STORED ON THE SERVICE.

11.2 Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS AND A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS, 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 ECONOMIC ADVANTAGE, AND COSTS OF SUBSTITUTE GOODS OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS TERMINATION IN ACCORDANCE WITH SECTION 6, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS, A PARTY'S INDEMNIFICATION OBLIGATIONS AND A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY'S TOTAL LIABILITY (INCLUDING ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE, OR $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

12. GENERAL PROVISIONS

12.1 Changes. NELI may make changes or updates to the Services, including to reflect changes in technology, industry practices, and patterns of system use.

12.2 Force Majeure; Delays. Except for the obligation to pay money, 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, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. NELI is not responsible for liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform any of its obligations under the Agreement.

12.3 Publicity. NELI may use Customer's name as a reference for marketing or promotional purposes on NELI's website and in other communication with existing or potential NELI customers, subject to any written trademark policies Customer may provide NELI in writing, with reasonable advanced notice.

12.4 Export Controls. Customer agrees to comply with all applicable export control laws and regulations related to its use of NELI IP.

12.5 Notices. Any notices required or permitted under this Agreement must be submitted to (i) the mailing address or email address on file with NELI, in the case of Customer or (ii) support@newedge.io or 8403 Colesville Road Suite 1100, Silver Spring, MD 20910, in the case of NELI. Each notice will be deemed delivered on the date the sender can reliably confirm the notice was sent.

12.6 Arbitration. The parties will resolve all disputes arising under or in connection with this Agreement through binding arbitration. A party intending to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association ("AAA"). The arbitration will be conducted in English in Santa Clara, California, USA. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator's decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. This Section 12.6 will not prohibit either party from: (a) bringing an individual action in small claims court; (b) seeking injunctive relief in a court of competent jurisdiction; (c) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available, or (d) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 12.6 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 12.7 will govern any action arising out of or related to this Agreement.

12.7 Miscellaneous. Customer may not assign this Agreement without NELI's prior express written consent. NELI may assign this Agreement freely in its sole discretion. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement shall be governed by and construed under the laws of the State of California. If a lawsuit or court proceeding is permitted under this Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter, whether oral or written, express or implied. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of NELI to object to such terms. Except as set forth in this Agreement, this Agreement may only be amended in a writing signed by the parties. Any ambiguity in this Agreement shall be interpreted without regard to which party drafted this Agreement or any part thereof. The relationship between the parties shall be that of independent contractors. Any waiver of a right arising under this Agreement must be made in writing and signed by the party making the waiver. Waiver of any term of this Agreement shall 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. Customer agrees that any violation or threatened violation of this Agreement would cause irreparable injury to NELI for which monetary damages would not be an inadequate remedy, entitling NELI to seek injunctive relief in addition to all legal remedies, without the posting of any bond (or any other security) or proof of actual damages. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in effect.