CLIENT TERMS AND CONDITIONS

ENOME, INC. (GOALBOOK) These Client Terms and Conditions were last revised on May 31, 2020. By signing the Order Form, having access to, receiving, and/or using the services provided by Enome, Inc. (“Goalbook” or “we”) at goalbookapp.com, or via Toolkit, Pathways, and any other features or services (collectively, then “Goalbook Platform” or “Services”), you agree, on behalf of you and your organization (collectively, “Client” or “you”), without limitation or qualification, to be bound by and to comply with these Terms and Conditions (“Terms”). Each Order Form will be deemed to incorporate these Terms as they are published by Goalbook on the effective date of such Order Form.

1. Definitions

“Client Content” means any data, content, and information posted, inputted, or made available by Client or Users on the Platform or produced by the Platform based on such Client’s data and information. “Goalbook Materials” means the visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Goalbook Platform provided by Goalbook as part of the Goalbook Platform. “Goalbook Platform” or “Services” means the service(s) purchased by Client from Goalbook as set forth in executed Order Form(s). “Goalbook Platform Term” means the term during which Goalbook will provide the Goalbook Platform to Client as specified in the Order Form. “License Administrator” means a User designated by Client and authorized by Goalbook to submit Order Forms for additional User licenses or to invite Users as set forth in Section 3.1. Client may substitute License Administrators by written notice to Goalbook. “Order Form” means the initial order form for the Services, and any subsequent order forms, agreed to between the parties in writing from time to time and made a part of these Terms, specifying, among other things, the number of licenses, services, fees, the Goalbook Platform Term and other charges as agreed to between the parties. “Teacher” means a User authorized to use the Goalbook Platform by Client as a teacher. “Users” means Client’s staff and teachers, who are authorized to use the Goalbook Platform and have been supplied user identifications and passwords by Client or Goalbook. “User Content” means content, including images, audio, video, text, feedback, and other types of works posted or inputted on the Platform.

2. Provision of Services.

2.1 Goalbook Platform. Goalbook shall make the applicable Goalbook Platform available to Client during the Goalbook Platform Term on the terms set forth in these Terms and Conditions, the applicable Additional Terms, and the Order Form(s). Goalbook shall ensure that the Goalbook Platform is available to Client and performs substantially in accordance with the specifications and will use commercially reasonable efforts to maintain the security of the Goalbook Platform. Additionally, Goalbook will provide telephone help desk or online support services during normal business hours (between the hours of 7:00 am and 7:00 pm PST on business days). Goalbook may access Client’s User accounts, including without limitation Client Content, to respond to service or technical problems. 2.2 Professional Services Client may request Goalbook to provide certain professional services that are ancillary to the Goalbook Platform, such as integration or customization (“Professional Services”). In such event, the parties will enter into a Statement of Work (“SOW”) which sets forth the scope and description of the Professional Goalbook Platform, deliverables, parties’ responsibilities, completion dates, fees and payment terms, and any other relevant information. 2.3 Goalbook’s Privacy Policy <goalbookapp.com/privacy>, and User Terms and Conditions <goalbookapp.com/terms> are incorporated herein by reference. Goalbook reserves the right to modify its privacy and User Terms and Conditions, provided that any such modification will not derogate Client’s rights set forth in these Terms.

3. Use of the Goalbook Platform

3.1 Client Accounts. Only those Client Administrators that have been granted authority by us may invite Users to the Goalbook Platform. In some circumstances we may restrict access to the Goalbook Platform to certain Users. Client is responsible for all activities that occur under Client’s User accounts. Client shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Content; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Goalbook Platform and notify Goalbook promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Goalbook Platform. 3.2 Goalbook Platform Guidelines. You may use the Goalbook Platform solely as a teaching tool for the benefit of Students. You will not:
  1. copy (e.g., into Word file) any Goalbook Materials including but not limited to the content we provide as part of the Toolkit for use outside of our website;
  2. rent, lease, loan, sell, resell, sublicense, distribute, or otherwise transfer the licenses granted herein or any Goalbook Materials;
  3. post, upload, or distribute any defamatory, libelous, or inaccurate User Content or other content;
  4. post, upload, or distribute any User Content or other content that is unlawful or that a reasonable person could deem to be objectionable, profane, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
  5. impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the accounts of others without permission, forge another person’s digital signature, misrepresent the source, identity, or content of information transmitted via the Goalbook Platform, or perform any other similar fraudulent activity;
  6. delete the copyright or other proprietary rights on the Goalbook Platform or any User Content;
  7. make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other users of the Goalbook Platform (this includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
  8. use the Goalbook Platform for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
  9. defame, harass, abuse, threaten, or defraud users of the Goalbook Platform, or collect, or attempt to collect, personal information about users or third parties without their consent;
  10. use the Goalbook Platform for any commercial purpose without our consent;
  11. remove, circumvent, disable, damage, or otherwise interfere with security-related features of the Goalbook Platform or User Content, features that prevent or restrict use or copying of any content accessible through the Goalbook Platform, or features that enforce limitations on the use of the Goalbook Platform or User Content;
  12. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Goalbook Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
  13. modify, adapt, translate, or create derivative works based upon the Goalbook Platform or any part thereof, except and only to the extent the foregoing restriction is expressly prohibited by applicable law; or
  14. intentionally interfere with or damage operation of the Goalbook Platform or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code.
A person other than a User may have access to a web link that allows access to certain Content on the Platform. Such access and ability to download such Content from the web link is for personal use only and may not be used to copy, distribute, sublicense, publicly display, or publicly perform such Content. The Platform may contain limitations that block a user from taking certain actions, including copy, print, and download, if the Platform detects an unusual amount of usage during a time period, to safeguard our Content. If you believe you are being incorrectly blocked, please contact customer support at support@goalbookapp.com. 3.3 Compliance. While Goalbook discourages you from entering information that may personally identify a student, there are open text fields in the My Library feature where this may occur. Client represents and warrants that Client has obtained all necessary consents and complied with all laws to (i) engage Users in the activities enabled by the Goalbook Platform, including but not limited to the posting of Student’s personally identifiable information (“PII”) and the access to Student’s PII by Users; and (ii) to grant us the license to collect, store, and process PII through the Goalbook Platform, solely in compliance with the Goalbook Privacy Policy. Without limiting the foregoing, Client represents and warrants that Client’s disclosure and use PII in connection with the Platform, and Client’s license to Goalbook to use, store, and disclose of PII in connection with the Platform, are permitted in writing by a parent or guardian of such student, are made in compliance with applicable school and school districts policies, and comply with all applicable laws. 3.4 CA Compliance. For Clients located in the state of California, an addendum <goalbookapp.com/ca-addendum> is entered into between Client and Goalbook for each executed Order Form to comply with California Assembly Bill 1584.

4. DMCA Copyright Policy

Goalbook operates the Goalbook Platform in compliance with 17 U.S.C. §512 and the Digital Millennium Copyright Act (“DMCA”). It is our policy to respond to any infringement notices and take appropriate actions under the DMCA and other applicable intellectual property laws. It is the policy of Goalbook to promptly process and investigate notices of alleged copyright infringement, and take appropriate actions under the DMCA. The DMCA requires that all notices of alleged copyright infringement must be in writing. When informing the designated agent of an alleged copyright infringement, the complainant must do the following:
  1. Identify the copyrighted work that allegedly has been infringed. If multiple copyrighted works at a single online site are involved, please provide a list of the works on that site;
  2. Describe the material that is claimed to be infringing and provide sufficient information to permit Goalbook, to locate that material;
  3. Provide your contact information, including an address, telephone number, and, if available, an email address;
  4. Certify or include a statement that the complainant has a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner’s agent, or law;
  5. Certify that the information that you have provided Goalbook is accurate. The complainant should attest under penalty of perjury that the complainant is authorized to enforce the copyrights that have allegedly have been infringed; and
  6. Include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner.
Before the complainant alleges an infringement, complainant should consult copyright materials to confirm that the use is, in fact, infringing. The United States Copyright Office provides basic information, online, at http://www.copyright.gov/circs/circ01.pdf, which can assist one in determining whether an exception or defense, such as fair use, may apply to the use of your copyrighted work. Goalbook expects all of the Users of its Goalbook Platform to comply with applicable copyright laws. However, if Goalbook is notified of a claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond appropriately, which may include removing or disabling access to the material that is claimed to be infringing. Goalbook will follow the procedures outlined in the DMCA with regard to appropriate notifications of the User and the complaining party, acceptance of counter notifications, and, where indicated, “putback” of the alleged infringing material. Refer to the United States Copyright Office for the provisions of the DMCA at http://www.loc.gov/copyright/legislation/dmca.pdf. Where it has been clearly established that a User is a repeat offender, Goalbook may, in its sole discretion, terminate that User’s account. Pursuant to the DMCA, Goalbook has designated an agent to receive notification of alleged copyright infringement occurring on web pages or computer servers. If you believe that your copyrighted work is being infringed on the Goalbook Platform, please notify our designated agent at: digitalrights@goalbookapp.com

5. Fees & Payment

5.1 Fees. Client shall pay the fees specified in the Order Form and in any executed SOW. All fees are quoted in United States Dollars. Fees are non-refundable except as otherwise specifically set forth in these Terms. Fees due shall be payable thirty (30) days from the invoice date. All payments made under these Terms shall be in United States dollars. 5.2 Professional Services Fees. Any work outside the scope of the Order Form or SOW performed by Goalbook pursuant to Client’s request will be billed at $300/hour in 15 minute-increments, unless otherwise set forth in an executed Statement of Work. 5.3 Overdue Payments. Any payment not received from Client by the due date may accrue, at Goalbook’s discretion, late charges at the rate of one and a half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid. 5.4 Suspension of Goalbook Platform. If Client’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Goalbook reserves the right to suspend the Goalbook Platform provided to Client, without prior notice or liability to the Client, until such amounts are paid in full. 5.5 Taxes. Goalbook’s fees are exclusive of all local, state, federal, and foreign taxes, levies, or duties of any nature (“Taxes”), and Client is responsible for payment of all Taxes, excluding only United States taxes based on Goalbook’s income. If Goalbook has the legal obligation to pay or collect taxes for which Client is responsible pursuant to this Section 5.6, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Goalbook with a valid tax exemption certificate authorized by the appropriate taxing authority. 5.6 Billing and Contact Information. Client shall ensure that License Administrator maintains complete, accurate, and up-to-date Client billing and contact information via the online Client account section of the Goalbook Platform at all times.

6. Proprietary Rights

6.1 Reservation of Rights.
  1. Goalbook does not claim or have any ownership rights in and to the Client Content. Goalbook owns all rights, title, and interests in and to (i) its trademarks, trade names, domain names and logos (including but not limited to “ENOME” and “GOALBOOK”); (ii) audio and visual information, documents, software, and other works of authorship, and other technology, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information used to provide the Goalbook Platform, and/or conceived or developed under or in connection with any SOW (collectively “Goalbook Technology”), and all intellectual property rights therein (“Goalbook IP Rights”). Other than as expressly set forth in these Terms, no license or other rights in the Goalbook IP Rights are granted to the Client, and all such rights are hereby expressly reserved.
6.2 License Grants.
  1. Subject to the terms and conditions of these Terms, Goalbook grants Client and its Users a non-exclusive, non-transferable, non-sublicenseable right during the Goalbook Platform Term to access and use the Goalbook Platform for the purpose for which it is made available to Client and otherwise in accordance with these Terms. Client shall not (i) modify, copy or make derivative works based on the Goalbook Technology; (ii) disassemble, reverse engineer, or decompile any of the Goalbook Technology; or (iii) create Internet “links” to or from the Goalbook Platform, or “frame” or “mirror” any of Goalbook’s content which forms part of the Goalbook Platform (other than on Client’s own internal intranets).
  2. Client grants Goalbook a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, Client Content, and to sublicense the foregoing rights to Goalbook’s affiliates and operators of Goalbook affiliated websites, solely as necessary to provide the Services; provided, however, that Goalbook will not alter any of Client trademarks or logos from the form provided by Client (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with Client’s removal requests as to specific uses of Client trademarks or logos (provided Client are unable to do so using standard functionality made available to Client by Goalbook).
  3. Client hereby authorizes Goalbook to collect, store, and process PII through the Goalbook Platform, provided that in doing so, we comply with the Goalbook Privacy Policy.
  4. Notwithstanding anything to the contrary, Goalbook may use and distribute statistics based on Client usage and Client Content as aggregated with Goalbook’s other clients’ data for marketing and other purposes. Goalbook may also send email communications to the Users regarding Goalbook’s suite of services.
  5. Goalbook shall be permitted to use Client’s name and logo on the Goalbook website, in testimonial content, in press releases, and within marketing materials. With Client’s prior consent, Goalbook may issue press releases relating to these Terms.
  6. Goalbook shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any other party relating to the Goalbook Platform to the extent it does not constitute Confidential Information of Client.

7. Confidentiality

7.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information of a party (“Disclosing Party”) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other party (“Receiving Party”), including without limitation these Terms, the Goalbook Technology, the Goalbook Platform, business and marketing plans, technology and technical information, product designs, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Confidential Information shall not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party. 7.2 Protection. Each party will not disclose the other party’s Confidential Information, or use the other party’s Confidential information for any purpose other than to perform its obligations or exercise its rights under these Terms, and will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. 7.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure. 7.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

8. Warranties & Disclaimers

8.1 Warranties. Each party represents and warrants that it has the legal power to enter into these Terms. Goalbook represents and warrants that it will provide the Goalbook Platform in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Goalbook Platform will perform substantially in accordance with the specifications under normal use and circumstances and will have a level of uptime, transaction response time, and technical support response time that is better or as good as that provided to Goalbook’s other clients. 8.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, GOALBOOK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE GOALBOOK HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. Indemnification

9.1 Indemnification by Goalbook. Subject to these Terms, Goalbook shall defend, indemnify, and hold Client harmless against any loss or damage (including without limitation reasonable attorney’s fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that the Goalbook’s technology powering the Goalbook Platform infringes the intellectual property rights of a third party; provided, that Client (a) promptly gives written notice of the Claim to Goalbook; (b) gives Goalbook sole control of the defense and settlement of the Claim (provided that Goalbook may not settle or defend any Claim unless it unconditionally releases Client of all liability); and (c) provides to Goalbook, at Goalbook’s cost, all reasonable assistance. Goalbook shall have no obligations to Client under this Section 9.1 to the extent such Claims arise from Client’s or its User’s breach of these Terms or from the combination of the Goalbook Platform with any of Client’s products, services, hardware or business processes. If any Claim is made or, in Goalbook’s sole judgment, is likely to be made, Goalbook may, at its discretion, either: (i) procure for Client the right to continue to use the Goalbook Platform, as such use is specifically provided for in these Terms, (ii) replace or modify the Technology to avoid infringement, or (iii) terminate these Terms upon written notice to Client, and refund any paid but unused fees to Client. 9.2 Indemnification by Client. Subject to these Terms, Client shall defend, indemnify, and hold Goalbook harmless against any loss or damage (including without limitation reasonable attorney’s fees) incurred in connection with Claims made or brought against Goalbook by a third party (i) alleging that the Client Content, or the use thereof by either party solely in accordance with these Terms, has caused harm to a third party or infringes the intellectual property rights, privacy rights, or publicity rights of a third party, (ii) arising out of Client’s breach of Section 3; or (ii) arising from Client’s use of the Goalbook Platform (other than the claim against which Goalbook is obligated to indemnify Client as set forth in Section 9.1), including but not limited to the sale or purchase of Marketplace Content; provided, that Goalbook (a) promptly gives written notice of the Claim to Client; (b) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle or defend any Claim unless it unconditionally releases Goalbook of all liability); and (c) provides to Client, at Client’s cost, all reasonable assistance. Client shall have no obligations to Goalbook under this Section 9.2 to the extent such Claims arise from Goalbook’s breach of these Terms or Client’s use of Client Content as authorized and contemplated by these Terms.

10. Limitation of Liability and Action

10.1 Limitation of Liability. IN NO EVENT SHALL GOALBOOK HAVE ANY LIABILITY TO CLIENT FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY WHETHER OR NOT GOALBOOK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL GOALBOOK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $100,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CLIENT FOR THE SERVICE DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. 10.2 Limitation of Action. Except for actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of these Terms may be commenced by either party more than two (2) years after the expiration of the Goalbook Platform Term.

11. Term & Termination

11.1 Term. These Terms commence on the date an Order Form is executed by both parties and shall continue until the expiration of the Goalbook Platform Term for all of the Goalbook Platform, unless sooner terminated pursuant to these Terms. 11.2 Termination for Cause. A party may terminate these Terms for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. 11.3 Outstanding Fees. Termination shall not relieve Client of the obligation to pay any fees accrued or payable to Goalbook prior to the effective date of termination. 11.4 Surviving Provisions. The following provisions shall survive the termination or expiration of these Terms for any reason and shall remain in effect after any such termination or expiration: Sections 1, 6.1, 6.2(d), 6.2(f), 7, 8.2, 9, 10, 11.4, and 12.

12. General Provisions

12.1 Relationship of the Parties. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. 12.2 No Benefit to Others. The representations, warranties, covenants, and agreements contained in these Terms are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons. 12.3 Notices. All notices under these Terms shall be in writing and shall be delivered to the address of the Client account by means evidenced by a delivery receipt, by facsimile, or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email. Notices to Goalbook shall be addressed to the attention of its CEO, with a copy to its General Counsel. 12.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 12.5 Severability. If any provision of these Terms is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate these Terms by notice to the other party. 12.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign these Terms, without consent of the other party to a wholly-owned subsidiary, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets which does not involve a direct competitor of the other party; provided, however, if these Terms provide for an unlimited use or enterprise license, an assignment by Client may result in an increase in fees. Any attempt by a party to assign its rights or obligations under these Terms in breach of this Section 12.6 shall be void and of no effect. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 12.7 Governing Law. These Terms shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws and provisions. 12.8 Venue. The federal and state courts located in the Northern District of California shall have jurisdiction to adjudicate any dispute arising out of or relating to these Terms. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. 12.9 Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under these Terms. 12.10 Entire Agreement and Construction. These Terms, any Exhibits, Additional Terms and the Order Form constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of these Terms. Except as contemplated to the contrary herein with respect to Order Forms, no modification, amendment, or waiver of any provision of these Terms shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict between the provisions in these Terms, any Exhibits, Additional Terms and the Order Form, the terms of the Order Form will take first precedence, then the Additional Terms will take second precedence, and the Exhibits will take third precedence, and these terms will take fourth precedence. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation shall be incorporated into or form any part of these Terms. 12.11 Counterparts. These Terms may be executed in counterparts, which taken together shall form one legal instrument. 12.12 Force Majeure. Neither party will be deemed in breach of these Terms if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks.