Effective prior to May 25, 2018 (view current version)

These Terms of Service (the “Terms of Service”) govern your purchase and our provision of the ZeroFOX Services. It is a binding legal Agreement between you (“you” or the “Customer”) and ZeroFOX, Inc., a corporation having offices at 1834 S. Charles Street, Baltimore MD 21230 (“we” or “ZeroFOX”) and is incorporated and made part of your order to purchase the ZeroFOX Services (the “Order”).

Your use of the Services constitutes your acceptance of these Terms of Service. We may change, update, add or remove provisions of these Terms of Service at any time by posting those changes on our website. Your continued use of the services after such posting shall constitute your acceptance of such changes to these service terms. If you do not agree with any of the updated Terms of Service, you must stop using the Services.

You may not access the Services if you are our direct competitor of ZeroFOX, except with ZeroFOX’s prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1. SERVICES

1.1 Description. This Agreement applies to your purchase and use of ZeroFOX’s online social media protection services (the “Services”). A general description of the Services may be found at https://www.zerofox.com/social-media-protection. Your Order will specify the scope of the specific Services that you are purchasing.

1.2 Changes to Services. ZeroFOX reserves the right to modify, add to, discontinue, and/or retire any Service and/or any feature of a Service at any time. We may also modify the terms and conditions that apply to the features and your use of the Services. We shall make reasonable attempts to provide you with notice of such modifications by posting them on our website. We have no obligation to provide direct notice of any such changes. We have the right to define eligibility criteria for the Services, and make changes to those criteria at any time. If we modify or update these Terms of Service and/or Services, you have affirmatively agreed to such changes by continuing to use the Services. If you object to such change, your sole remedy shall be to terminate and/or cancel the Service, as provided for in Section 4 of these Terms of Service.

1.3 Access Rights. You may only access and use the Services for the access term set forth on your Order and only for your individual use. For certain Services, ZeroFOX may allow you to enroll or permit to be enrolled your minor child, if you are his or her parent or legal guardian. We may require you to provide, either directly or indirectly, documentation to us as we deem it necessary in our sole discretion, to prove your relationship with any such minor child. You acknowledge that these Terms of Service will apply to your minor child, and you hereby expressly accept these Terms of Service on behalf of your minor child. By entering into an Order, you represent that you are an individual over the age of eighteen, or an authorized representative of an individual, for whom the Services will be performed.

1.4 Proprietary Rights; No Implied Licenses. As between the parties, ZeroFOX owns all intellectual property rights and other proprietary interests that are embodied in, or practiced by, the Services, including the ZeroFOX software applications that provide the Services functionality and all updates, upgrades, bug fixes and components made thereto; and the ZeroFOX websites and documentation.

2. CUSTOMER RESPONSIBILITIES; TREATMENT OF CONTENT

2.1 Permitted Use. You may only use the Services in accordance with these Terms of Service and our Website Terms of Use (https://www.zerofox.com/website-terms-of-use), which are incorporated herein. You may not use the Services in any way outside the scope of the rights that are expressly granted by ZeroFOX in this Agreement. You may not (a) use the Services for illegal or improper activities (as determined by ZeroFOX in its sole discretion) (b) impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity, or use or provide any fraudulent, misleading or inaccurate information; (c) defame, abuse, harass, stalk, threaten or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (d) access or use (or attempt to access or use) another user’s account without permission; (e) transmit any software or materials that contain any viruses, worms, trojan horses, defects, or other items of a destructive nature; (f) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any aspect or portion of the Services; (g) “frame” or “mirror” any aspect or portion of the Services; (h) use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Services (if applicable); or (i) harvest or collect information about or from other users of the Services. Subject to the limited rights to use the Services pursuant to this Agreement, Company retains all rights, title and interest in and to the Services, including all related intellectual property contained therein. Your right to use the Services is conditioned upon your strict compliance with the rules of conduct set forth in this Section 2.1.

2.2 Customer Information. In order to use the Services, you may be required to provide us with certain personal information, including your name, address, telephone number, email address, and other personal information (collectively, “Customer Information”). You agree to keep all Customer Information updated and accurate. If you do not provide us with complete and accurate Customer Information, you agree that we may, in our sole discretion, use our data base, the data base of our affiliates, or other resources to attempt to complete the required Customer Information on your behalf. If we are unable to obtain the required Customer Information or you fail to authenticate your identity as may be required, the Services for which you have enrolled or registered from us may be limited or unavailable. You hereby grant to ZeroFOX a non-exclusive license to use, store, process, analyze and display in reports, summaries, analyses, data, information or other items of output, whether in textual or graphical form, produced by or derived from the Services (“Reports”) all Customer Information for the limited purposes of performing ZeroFOX’s obligations under this Agreement. You shall provide to ZeroFOX the Customer Information in compliance with applicable laws and shall, at your own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for ZeroFOX’s and your use of the Customer Information as contemplated by this Agreement and as necessary to enable you to grant the rights granted by this Section 2.2.

2.3 Third-Party Content. The Services include access to social media content, posts, or any other information collected or otherwise obtained from a website owned or operated by a third party (collectively “Third-Party Content”). Third-Party Content may be subject to intellectual property rights or other rights that are owned or controlled by third parties or legal restrictions and regulations, such as privacy or obscenity laws. ZeroFOX does not own any Intellectual Property Rights or other rights or licenses in or to the Third-Party Content. To the extent that you use any Third-Party Content outside of the Services or access a website owned or operated by a third party (a “Third-Party Site”), you agree to adhere to any terms of service of the applicable Third-Party Site.

2.4 Content Disclaimers.

(a) Other than providing the Services as described in this Agreement and the applicable Order, ZeroFOX shall have no obligation to preview, verify, modify, filter or remove any Third-Party Content (although ZeroFOX may do so in its sole discretion), and ZeroFOX shall not be responsible for any failure to remove, or for any delay in removing, harmful, inaccurate, unlawful or otherwise objectionable Third-Party Content.

(b) As between the parties, you are responsible for backup and archiving of any content processed by the Services, including all Customer Information and Third-Party Content. ZeroFOX will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Information or Third-Party Content.

(c) In the event Third-Party Site ceases to make Third-Party Content available for use as contemplated in this Agreement on terms acceptable to ZeroFOX, ZeroFOX shall have the right to discontinue provision of any tools to retrieve or access to such Third-Party Content, and/or may discontinue the processing, analysis, storage or provision of access to any such Third-Party Content, without thereby entitling you to any refund, credit, or other compensation, other than a refund of the unearned portion of any fee that was paid to ZeroFOX, if any, for actually supplying the access to such Third-Party Content.

(d) ZeroFOX does not provide any warranty or support under this Agreement for any non-ZeroFOX products or services, including without limitation, Customer Information or Third-Party Content.

2.5 Authorization for Take-Down Requests. If part of the Services, ZeroFOX may contact representatives of third-party social media sites on your behalf to request the removal of certain content from that site (“Take-Down Requests”) where ZeroFOX believes such content to be malicious. Take-Down Requests are performed by ZeroFOX at your request, using the standard functionality of the Services. As such, during the Access Term, you hereby grant to ZeroFOX a limited, revocable appointment to submit Take-Down Requests. You represent and warrant that it has full right, power and authority to grant this appointment to ZeroFOX.

2.6 Customer Cooperation. To perform the Services, ZeroFOX requires you to provide certain Customer Information and requires your active participation to review and approve Take-Down Requests, among other things. The quality and quantity of the information that you provide to ZeroFOX may impact the effectiveness of the Services. You agree to keep your Customer Information accurate and to timely and promptly respond to requests for information and Take Down request approvals.

2.7 Account Changes. If more than one adult person is enrolled on your account for Services, that person may authorize changes to your account, subject to our then-current authorization procedures. Such account changes may include changing the form of payment, purchasing additional Services, or terminating Services. In all cases, you are personally responsible for any account changes made through your account.

2.8 Your Conduct. While the ZeroFOX Services are designed to help you protect the online security of your personal information, the best way to protect your information is through your own careful conduct. ZeroFOX is in no way responsible for any failure by you to protect your personal information in a reasonable way at all times. For example, ZeroFOX shall have no liability to you if you disclose or publish your personal information to anyone who might reasonably be expected to improperly use or disclose that personal information, such as, by way of example, in response to “phishing” scams, unsolicited emails, or pop-up messages seeking disclosure of your personal information. You also agree that you will, upon request from us, immediately remove from your computer any software that we notify you poses a security risk. To access the Services through our website, you must have a valid user name and password. You are responsible for maintaining the confidentiality of any password associated with your use of the Services, as well as any activity within the Services using your password(s).

3. PAYMENT OBLIGATIONS

3.1 Fees. You agree to pay all fees specified on your Order. You are responsible for providing complete and accurate billing and contact information and for notifying ZeroFOX of any changes to such information. Except as expressly set forth on your Order, all sales are final, payment obligations are non-cancelable and fees paid are non-refundable.

3.2 Introductory Services. If you purchase Services that are part of an introductory or special-pricing offer, after the introductory offer expires, your Services will automatically renew at the applicable then-current price depending on your selection (e.g., annual, monthly, membership tier/level, etc.) until you cancel the Services. The then-current renewal price is subject to change but we will notify you in advance. Please note that you must keep your email address up to date for purposes of receiving subscription notifications and you hereby waive your to right to receive such notices if you do not provide a valid email address.

3.3 Credit Card Authorization. By submitting credit/debit card data (“Payment Accounts”) to ZeroFOX, you authorize ZeroFOX in its complete discretion to submit financial transaction(s) to your issuing bank for settlement. You further authorize ZeroFOX the right to obtain and continue using updated Payment Account information electronically, when applicable, from the card brands and retry failed payments in order to complete transactions, including but not limited to, retrying failed cards with extended expiration dates. ZeroFOX reserves the right to change or amend authorized third parties to assist with payment processing. You agree to contact ZeroFOX in the event that you desire to cancel a recurring charge, prior to the next billing cycle, though cancellation of the recurring charge may not relieve you of your legal obligation to pay. Should you fail to contact ZeroFOX, you agree to indemnify and hold ZeroFOX harmless from any losses or damages that you suffer as a result of a recurring charge. If you think there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact ZeroFOX prior to the next billing cycle. You represent and warrant that you have the legal rights to use the Payment Accounts and hereby authorizes ZeroFOX to charge the Payment Accounts for all Services listed on your Order for the Initial Term (as later defined) and each subsequent period until termination. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order.

3.4 Taxes, Late Fees and Penalties. You are responsible for paying any applicable taxes related to your Order. Payments are due and payable on dates set forth in your Order. If payment is not received by due date, you will be assessed a late fee on the overdue amount at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If your account is thirty (30) or more days overdue, ZeroFOX may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full.

4. TERM AND TERMINATION

4.1 Term. This Agreement will be in effect on the date that ZeroFOX receives the initial fees due under an Order and will continue through the initial term set forth on the Order (the “Initial Term”), unless terminated sooner as provided herein.

4.2 Auto Renewal of Services. Unless cancelled or terminated, the Services will automatically renew at the end of the Initial Term for successive periods equal to the length of the Initial Term (each, a “Renewal Term” and, together with the Initial Term, the “Term”)) and you will pay the applicable then-current prices as published by ZeroFOX. Your stored Payment Account will be automatically billed until you cancel.

4.3 Cancellation by Customer. You may cancel auto the Services at any time by calling 855-936-9727.  If you cancel Services before the end of your subscription term, the Services will continue through the end of your existing (already paid for) subscription term and will not automatically renew. You are not entitled to a refund of any fees. Even if you decide not to accept the Services prior to the end of the Term, you will remain legally responsible to pay all the fees set forth in this Agreement.

4.4 Terminating Third-Party Purchased Services. If you purchased Services through a third party and wish to cancel those Services, you must notify the third party of your intent to cancel. You are subject to the termination and cancelation policies of that third party. ZeroFOX has no obligation to, and shall not, refund any fees paid by you to a third party.

4.5 Termination by ZeroFOX. ZeroFOX reserves the right to terminate the Service and these Terms of Service upon notice, with or without cause. Furthermore, this Agreement will terminate immediately without notice if you materially breach any term or condition herein.

4.6 Effect of Termination. Upon termination, all rights granted to you under this Agreement will immediately cease. Without limiting the foregoing, ZeroFOX has the right to immediately terminate any passwords or accounts created by you in the event that you fail to pay any amounts that you owe ZeroFOX in a timely manner or otherwise breach this Agreement. In the event of termination of this Agreement, (y) ZeroFOX will have no obligation to store, retain or return Customer Information or Third-Party Content and may, unless legally prohibited, delete Customer Information and Third-Party Content from its systems; and (z) your restrictions and ZeroFOX’s rights under this Agreement shall survive any such termination.

5. TREATMENT OF CONFIDENTIAL INFORMATION

5.1 “Confidential Information” means: any information or data (including information or data received by the disclosing party from a third party and as to which the disclosing party has confidentiality obligations) provided or disclosed by a party or its agents (the “Disclosing Party”) to the other party (the “Receiving Party”) that is: (i) fixed in a tangible medium and marked as the confidential or proprietary information of the disclosing party; (ii) otherwise provided or disclosed by or on behalf of the disclosing party marked as proprietary at the time the information is provided; or (iii) not falling within any of the prior clauses of this sentence, but which, a reasonable person would conclude is of a confidential nature given the facts and circumstances of such disclosure. The Services and the Documentation are ZeroFOX’s Confidential Information. The terms of this Agreement shall constitute the Confidential Information of both parties. Confidential Information does not include any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

5.2 Party Obligations. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have confidentiality obligations no less restrictive than those set forth herein and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Disclosing Party’s Confidential Information, and, if requested by the Disclosing Party, the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.

5.3 Privacy. You should carefully read our full privacy policy located at https://www.zerofox.com/privacy-policy/ (“Privacy Policy”) as it is hereby incorporated into this Agreement by reference, and governs our treatment of any information, including personally identifiable information that you submit to ZeroFOX. You hereby consent to ZeroFOX’s processing of any personal data that you provide in connection with the download and use of the Services according to the Privacy Policy.

5.4 System Use Information. ZeroFOX may use and disclose, in its discretion, any aggregated, anonymized or de-identified information regarding your use of the Services.

6. WARRANTY AND DISCLAIMER

6.1 Mutual Representations. Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution of this Agreement will not conflict with or violate any provision of any law having applicability to such party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

6.2 Customer Representations and Warranties. You represent and warrant that (i) all information that you provide to ZeroFOX (including Customer Information) is accurate and truthful, (ii) the Customer Information will not include content that is unlawful, fraudulent, or violates or infringes the rights of third parties, including but not limited to Intellectual Property Rights, rights of privacy or publicity or any other proprietary rights; (iii) you will use the Third-Party Content in compliance with Section 2.3 of this Agreement; and (iv) you will use the Services and Reports in compliance with applicable laws.

6.3 Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE DOCUMENTATION, AND ANY OTHER PRODUCTS OR SERVICES PROVIDED BY ZEROFOX ARE PROVIDED “AS IS,” AND ZEROFOX DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ZEROFOX DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY ZEROFOX WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. NO WARRANTY IS MADE ON THE BASIS OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR TRADE USAGE.

7. LIMITATION OF LIABILITY

7.1 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL ZEROFOX BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF ZEROFOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. ZEROFOX’S MAXIMUM LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO ZEROFOX FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (“CAP”). THE EXISTENCE OF ONE OR MORE CLAIMS SHALL IN NO EVENT INCREASE ZEROFOX’S TOTAL LIABILITY BEYOND THE CAP IN NO EVENT SHALL ZEROFOX’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES.

7.2 Essential Basis of the Agreement. The disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of the agreement between you and ZeroFOX, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.

8. EXPORT; RESTRICTED RIGHTS

You shall comply with all U.S. export laws and applicable export laws of its locality (if you are not located in the United States), and you agree not to export of the Services or other materials provided by ZeroFOX without first obtaining all required authorizations or licenses.

9. NOTICES

All notices required by or relating to this Agreement will be in writing and will be sent by means of overnight express courier or by certified mail, postage prepaid, to the parties at their respective addresses set forth on the Order, or addressed to such other address as the receiving party may have given by written notice in accordance with this provision. Notices to ZeroFOX shall be addressed to the attention of its Chief Financial Officer, and notices to you shall be addressed to the person identified as your primary point of contact on the Order, unless in either case the receiving party has otherwise indicated by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile or electronic mail, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either party delivers any notice by means of facsimile or email transmission in accordance with the preceding sentence, such party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving party, addressed as set forth above or to such other address as the receiving party may have previously substituted by written notice to the sender.

10. FORCE MAJEURE

Except for payments owed hereunder, if a party is prevented from performing its duties under this Agreement as a result of an event of force majeure, its failure to perform will not be considered a breach of this Agreement, and its performance will be excused for the duration of the force majeure. For purposes of this Agreement, an event of “force majeure” refers to an act of god, war, natural disaster and other events beyond all reasonable control of the non-performing party.

11. ASSIGNMENT; DELEGATION

This Agreement shall be binding and inure to the benefit of the parties and each of their respective successors and assigns. Except in the event of a sale, merger or other change in control event, neither party shall assign this Agreement without the express, prior written consent of the other party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect.

12. NO THIRD PARTY BENEFICIARIES

The covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

13. ARBITRATION; GOVERNING LAW

ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE (“CLAIM”) ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION. THE ARBITRATION SHALL BE CONDUCTED BY AND SUBMITTED TO A SINGLE ARBITRATOR SELECTED FROM AND ADMINISTERED BY THE WASHINGTON, DC OFFICE OF JAMS (“JAMS”), IN ACCORDANCE WITH ITS THEN-EXISTING COMPREHENSIVE ARBITRATION RULES & PROCEDURES. THE ARBITRATION HEARING SHALL BE HELD IN WASHINGTON, DC, BUT THE PARTIES AGREE THAT ALL PROCEEDINGS AND HEARINGS PRIOR TO THE FINAL HEARING MAY BE HANDLED VIA MAIL, TELEPHONE OR VIDEOCONFERENCE. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PRINCIPLES. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT. THE ARBITRATOR SHALL BE AUTHORIZED TO AWARD COMPENSATORY DAMAGES, BUT SHALL NOT BE AUTHORIZED TO AWARD NON-ECONOMIC DAMAGES, SUCH AS FOR EMOTIONAL DISTRESS, OR PAIN AND SUFFERING OR PUNITIVE DAMAGES. EACH PARTY SHALL BEAR ITS OWN ATTORNEYS’ FEES, COST AND DISBURSEMENTS ARISING OUT OF THE ARBITRATION, AND SHALL PAY AN EQUAL SHARE OF THE FEES AND COSTS OF THE ARBITRATOR AND JAMS. JUDGMENT ON THE AWARD MAY BE ENTERED BY ANY COURT OF COMPETENT JURISDICTION. BY AGREEING TO THIS BINDING ARBITRATION PROVISION, THE PARTIES UNDERSTAND THAT THEY ARE WAIVING CERTAIN RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE IF A CLAIM WERE DETERMINED BY LITIGATION IN COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO SEEK OR OBTAIN CERTAIN TYPES OF DAMAGES PRECLUDED BY THIS ARBITRATION PROVISION, THE RIGHT TO A JURY TRIAL, CERTAIN RIGHTS OF APPEAL, THE RIGHT BRING A CLAIM AS A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; AND A RIGHT TO INVOKE FORMAL RULES OF PROCEDURE AND EVIDENCE.

14. ENTIRE AGREEMENT

The parties agree that the provisions of this Agreement are the entire agreement between them regarding the matters that this Agreement addresses, including the parties’ respective confidentiality obligations. The parties also agree that any prior agreements about those same matters, whether written or oral, are superseded by this Agreement, and previous oral agreements about those matters do not have any legally binding force.

15. ENFORCEABILITY

Even if the law will not enforce a provision of this Agreement in a particular instance, the parties intend to remain bound by the other, enforceable provisions. If the unenforceable provision could be interpreted in a manner that would render it enforceable, while still reflecting the parties’ mutual intent, they intend for that interpretation to apply. If permitted by law, the parties also intend for the provision that cannot be enforced in that instance to remain applicable in any other instances when it can be enforced.

16. AGREEMENT AMENDMENTS

The parties acknowledge that they may desire to modify this Agreement in the future, but that no modifications will be legally binding unless the modifications are expressly set forth in a writing that is physically or digitally signed by representatives of each of them.

17. WAIVERS

Even if a party fails to enforce its rights under this Agreement in a particular instance, the other party must still perform its duties in that instance unless the non-enforcing party physically signs a paper that expressly waives its rights in that instance, and any such waiver only applies to the particular instance and particular rights expressly waived.