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WhoCo Customer Agreement

Effective: September 30, 2020

This Customer Agreement (“Agreement”) describes your rights and responsibilities when using The Who Company, Inc. (“WhoCo”)’s proprietary hiring platform and related services (collectively, the “Services”).   If you are a Customer (defined below), this Customer Agreement governs your access and use of WhoCo’s Services.  If you are invited to a Company Account set up by a Customer (as an Authorized User, defined below) or use WhoCo’s Services independent of a Company Account, the WhoCo’s User Terms of Service (“User Terms”) govern your access and use of the Services instead.

Binding “Contract”

This Customer Agreement together with any applicable Order Form(s) (defined below) form a binding contract between Customer and WhoCo, which together make up this “Agreement”. 

Agreement On Behalf of “Customer”

“Customer” is the organization that you represent in agreeing to this Agreement. In order to use the Services, the Customer must have a “Company Account”. You confirm you have the authority to enter into this Agreement on behalf of Customer.

WhoCo may update this Customer Agreement from time to time by posting the updated Customer Agreement to the Services and/or sending Customer other communications. If Customer uses the Services after being notified of a change to this Customer Agreement, Customer acknowledges its understanding of the then-current Customer Agreement and agrees to the updated Customer Agreement.

Ordering Subscriptions

A Customer subscription allows and is required for Authorized Users to access the Services as members of the Customer’s Company Account. Customer selects a subscription through the Services interface, or in some cases, via an order form entered into between Customer and WhoCo (each, an “Order Form”). Each Authorized User must agree to the User Terms to activate their own account access. A Customer’s subscription commences when Services access is made available to Customer.

1. The Services

Access

Subject to Customer’s compliance with the terms and conditions of this Agreement, WhoCo hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services solely for Customer’s internal business purposes during the term of this Agreement; provided that Customer strictly complies with its obligations in this Agreement and such use is consistent with the intended use of the Services as described in any then-current user documentation made available by WhoCo for the Services (“Documentation”).

Restrictions

Except as expressly permitted by this Agreement, Customer will not, and will not permit any third party (including Authorized Users) to, use the Services in any manner beyond the scope of the rights expressly granted in this Agreement. Customer will not at any time, directly or indirectly, and will not permit any third party to: (a) modify or create derivative works of the Services, in whole or in part; (b) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (c) sell, resell, rent or lease use of the Services to any other third party, or otherwise allow the Services to be used for any purpose other than for the benefit of Customer in accordance with this Agreement; (d) use the Services to store, transmit, upload or post any infringing, libelous or otherwise unlawful or tortious material or any data (including any Company Content) for which it does not have the necessary consents or rights to store, transmit, upload or post (as applicable) in connection with the Services; (e) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (f) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by WhoCo for use expressly for such purposes; (g) use the Services, Documentation or any other Confidential Information of WhoCo to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services; (h) use the Services in any way that exceeds any applicable usage limitations as may be specified on the Service interface or in the applicable Order Form; or (i) delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Services or the Services Output (as defined below) as delivered.

Authorized Users

Customer will not permit any person or entity other than its Authorized Users (as defined below) to access, use or operate the Services within the Customer’s Company Account. Customer will ensure that each such Authorized User complies with all applicable terms and conditions of the Agreement (including applicable privacy policies, acceptable use policies and terms and conditions which may be posted or made available through the Services), and Customer is fully and directly responsible to WhoCo for any act or omission by each such Authorized User in connection with the Authorized User’s use of the Services. Customer will use, and will require all Authorized Users to use all reasonable means to secure user names and passwords, hardware and software used to access the Services, and will promptly notify WhoCo if Customer or any Authorized User knows or reasonably suspects that any user name and password has been compromised. Each account for access to and use of the Services may only be accessed and used by the specific Authorized User for whom such account is created. Customer will further ensure that no Authorized User misrepresents their identity or otherwise provides any deceptive or misleading profile information when creating an account in connection with the Services. In this Agreement, “Authorized User” means any natural person who is an employee, contractor, consultant or prospective employee or contractor of Customer who: (a) Customer authorizes to use the Services; and (b) has an account with membership in the Customer’s Company Account to use the Services in accordance with WhoCo’s then-current account registration procedures (including assent to the User Terms of Service and Privacy Policy as may be updated from time-to-time.

Acceptable Use

Customer may not use the Services: (a) in violation of this Agreement; (b) in a way that infringes on, violates, dilutes or misappropriates the intellectual property rights of any third party or any rights of publicity or privacy; (c) in violation of any law, statute, ordinance or regulation, unfair competition, anti-discrimination and/or false advertising; or (d) to engage in any illegal, offensive, indecent, inappropriate or objectionable conduct or content.

Privacy Policy

WhoCo’s collection, use and disclosure of personal information collected from Customer and its Authorized Users are further described in WhoCo’s Privacy Policy. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Services is subject to WhoCo’s Privacy Policy.

CompanyContent

Company Content” means information and materials provided or made accessible to WhoCo by or on behalf of Customer for the purpose of receiving or using the Services, including but not limited to information about Customer’s mission, value and teams, and job openings. Customer will: (a) provide WhoCo with the Company Content in the form and format requested by WhoCo, or as otherwise required to access and use the Services; (b) be responsible for all Company Content, including by maintaining and communicating to Authorized Users and WhoCo clear policies consistent with applicable law with respect to the ownership and portability of Company Content relating to each Authorized User and communicating the same to Authorized Users; (c) ensure compliance with all laws, rules, and regulations applicable to its use of the Services (including all applicable data protection laws); and (d) obtain all waivers, consents and other rights necessary for WhoCo to use the Company Content to provide the Services to Customer. Customer acknowledges and agrees that the Services allow Authorized Users to exercise certain controls with respect to Company Content consisting of profile information provided or made accessible to WhoCo directly by Authorized Users (such as individual skills, experience, personality and other information included in the Authorized User’s “player card”).

Modification, Suspension, or Termination

Customer acknowledges and agrees that the Services may be modified, upgraded, or updated at any time during the term of this Agreement.  Notwithstanding anything to the contrary in this Agreement, WhoCo is entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s or any Authorized User’s access to any or all parts of the Services at any time in the event: (a) that WhoCo reasonably suspects that the Services are being used in violation of any applicable law or regulation or in a manner inconsistent with this Agreement or the Documentation; (b) that WhoCo determines that the Services is being used in an unauthorized or fraudulent manner; (c) that WhoCo determines that the use of the Services adversely affects WhoCo’s equipment or service to other customers; (d) WhoCo is prohibited by an order of a court or other governmental agency from providing the Services; or (e) any other event which WhoCo determines, in its sole discretion, may create a risk to the Services or to any other users of the Services. Without limitation, WhoCo will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer’s or any Authorized User’s right to use the Services in accordance with this Agreement.

Support

WhoCo will provide technical support to Customer in connection with its use of the Services. Such support will be available by live chat only during the hours of 9:00 AM to 5:00 PM (Pacific Standard Time) on business days. In order to enable WhoCo to provide such support, Customer acknowledges and agrees that the Company Account will be set up with one or more WhoCo’s representatives as admin users.

2. Fees and Payments

Fees and Payment

Use of certain Services may require payment of fees by Customer. If Customer has purchased a paid subscription for the Services (a “Paid Subscription”), fees are specified in the Order Form. Paid Subscriptions are billed in advance on a recurring, periodic basis. Service fees must be paid by Customer in advance. All payments made under this Agreement to WhoCo will be made in U.S. dollars by ACH direct debit or other acceptable payment methods approved by WhoCo in advance. All payments will be non-refundable. Customer will reimburse WhoCo for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting overdue amounts hereunder.

No Set-Off

Neither party will have any right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under this Agreement for any reason.

Taxes

Paid Subscription fees are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding U.S. taxes based on WhoCo’s net income) unless Customer has provided WhoCo with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to WhoCo on account thereof.

Downgrades

Customer’s Paid Subscription will downgrade if payment is not received upon renewal. Downgrading a Customer subscription may cause loss of content, features, functionality, account capacity, or suspended Services access.

3. Term

Term

This Agreement (and Customer’s subscription) commences when Services access is made available to Customer through a subscription. Subscriptions continue until terminated.

Trial Subscription

If Customer receives free trial access to a paid subscription for the Service (a “Trial Subscription”)  for a period (“Trial Period”) specified on the Order Form, paid subscription pricing and payment terms designated on the Order Form go into effect upon the end of the Trial Period.  Trial Subscriptions are permitted solely for Customer to determine whether to purchase a Paid Subscription to the Services.  Trial Subscriptions may not include all functionality and features accessible as part of a paid subscription.

Paid Subscriptions and Auto-Renewal

The subscription period of each Paid Subscription is specified on the Order Form, and unless an Order Form indicates otherwise, all Paid Subscriptions automatically renew for equal and successive subscription periods.

Price Changes

WhoCo may change the fees charged to Customer for the Services at any time, provided that, for Paid Subscriptions, the change will become effective only at the end of the then-current subscription period. WhoCo will provide Customer with advance notice of any change in fees.

Termination for Cause

Without limiting any right or remedy available to either party, either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach remains uncured for ten (10) days or longer after the non-breaching party provides the breaching party with written notice of such breach.

Termination for Convenience

Further, either party may terminate this Agreement for any reason or no reason upon thirty (30) days prior written notice to the other party (provided that in no event will WhoCo provide any refund of prepaid Paid Subscription fees if Customer terminates this Agreement in accordance with this Section)

Effect of Termination

Upon termination or expiration of this Agreement: (a) Customer’s (and its Authorized Users’) rights to access the Services (including the Company Account) will terminate, including Company Account and Authorized Users’ access; (b) Customer will immediately cease using the Services, and will destroy all copies of all Documentation or other content provided by WhoCo hereunder; (c) WhoCo will have no further obligation to provide access to the Services; (d) Customer will pay any unpaid fees; and (e) each party will return or destroy all copies of Confidential Information of the other party (in accordance with the other party’s direction), but (for clarity) WhoCo may retain copies of any information that is part of an Authorized User’s profile where such Authorized User maintains a personal account with WhoCo. 

Survivial

The following sections are expressly intended to survive any expiration or termination of this Agreement:

  • From Section 1: Restrictions, Authorized Users, Privacy Policy
  • From Section 2: Fees and Payments, No Set-Offs, Taxes
  • From Section 3: Effect of Termination, Survival
  • All of Section 4: Intellectual Property Rights
  • All of Section 5: Confidentiality
  • All of Section 6: Representations and Warranties
  • All of Section 7: Indemnification
  • All of Section 8: Limitation of Liability
  • All of Section 9: Dispute Resolution; Arbitration Agreement; No Class Action
  • All of Section 10: General Provisions

4. Intellectual Property Rights

WhoCo

Subject to the right and license granted to Customer in Section 1.1 and this Section 4.1, WhoCo (and its licensors, where applicable) has and retains ownership of all intellectual property rights in and relating to, (i) the Services and the Services Output (as defined below), and any modifications, improvements or derivatives of the foregoing, regardless of whether created individually or jointly with Customer or any third party, and (ii) the Aggregate Data (as defined below). “Services Output” means all data, information and materials generated by the Services based on the Company Content, but excluding any Company Content incorporated therein. Subject to Customer’s compliance with the terms and conditions of this Agreement, WhoCo hereby grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable license to use the Services Output during the Term, solely for Customer’s internal business purposes in connection with the permitted use of the Services, all consistent with the intended use of the Services as described in the Documentation and WhoCo’s other materials.

Company Content

Customer hereby grants WhoCo a non-exclusive, worldwide, sublicensable, royalty-free right and license to use, reproduce, publicly display, publicly perform, modify, transmit, and make derivative works of the Company Content: (a) during the term of this Agreement only, in connection with the operation and provision of the Services; and (b) on a perpetual basis, for purposes of developing and deriving Aggregate Data (as defined below). “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Company Content, or (ii) Customer’s and/or its Authorized Users’ use of the Services, including, without limitation, any usage data or trends with respect to the Services. Subject to the foregoing, Customer has and retains ownership of the Company Content, and any intellectual property rights therein. CUSTOMER ACKNOWLEDGES THAT WHOCO IS NOT REQUIRED TO PRE-SCREEN OR MONITOR THE COMPANY CONTENT.

Feedback

Customer grants to WhoCo a perpetual, non-exclusive, sublicensable, and royalty-free license to use, modify, distribute, and otherwise freely exploit any suggestions, ideas, enhancement requests, feedback, recommendations, or other information or ideas provided by Customer or any third party on behalf of Customer relating to the Services or any of WhoCo’s current and future products and services.

Trademarks and References

Trademarks and References. Customer hereby grants WhoCo a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) in connection with: (i) the operation and maintenance of the Services during the term of this Agreement; and (ii) WhoCo’s marketing and promotional efforts for the its products and services, including by publicly naming Customer as a client of WhoCo during or after the term of this Agreement. All goodwill and improved reputation generated by WhoCo’s use of the Customer Marks inures to the exclusive benefit of Customer. WhoCo will use the Customer Marks in the form stipulated by Customer and in writing and will observe such standards as Customer prescribes in writing from time to time in connection with the license granted hereunder.

5. Confidentiality

Confidential Information

Confidential Information” of a party means all data and information that is submitted to or learned by either party in connection with this Agreement, including information relating to either party’s customers, technology, operations, facilities, products, systems, procedures, practices, research, development, employees, business affairs and financial information. For clarity, the Services and the Documentation will be deemed Confidential Information of WhoCo, and the Company Content will be deemed Confidential Information of Customer. Neither party may disclose, duplicate, publish, release, transfer or otherwise make available Confidential Information of the other party in any form to, or for the use or benefit of, any person or entity without the other party’s prior written consent, or use such Confidential Information for purposes outside the scope of this Agreement; provided that WhoCo may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. Each party may disclose the Confidential Information of the other party only to its employees, consultants and agents who need to know such confidential information for the purposes of this Agreement. Each party will advise its employees, consultants and agents of their responsibilities under this Agreement and be responsible for any breach of this Section 5 by its employees, consultants or agents. Confidential Information will not include information that is: (a) part of, or becomes part of, the public domain (other than by disclosure by the receiving party in violation of this Agreement); (b) previously known to the receiving party without an obligation of confidentiality; (c) independently developed by the receiving party outside this Agreement; or (d) rightfully obtained by the receiving party from third parties without an obligation of confidentiality.

Exclusions/Remedies

The obligations in this Section do not restrict any disclosure by either party pursuant to any applicable law, or by order of any court or government agency (provided that the disclosing party will give prompt notice to the non-disclosing party of such order so that the non-disclosing party may seek a protective order or other appropriate remedy). In the event of a breach of this Section or other compromise of Confidential Information of which a party is or should be aware (whether or not resulting from a breach), such party will immediately notify the other party in writing detailing all information known to such party about the compromise, the Confidential Information affected, and the steps taken by such party to prevent the recurrence of such breach and to mitigate the risk to the other party. The parties agree that in the event of a breach or anticipated breach of this Section 5, the affected party will be entitled to seek injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages.

6. Representations and Warranties

WhoCo Representations and Warranties

WhoCo represents and warrants to Customer that WhoCo has the necessary authority to enter into this Agreement and carry out its obligations hereunder.

Customer Representations and Warranties

Customer represents and warrants to WhoCo that: (a) Customer has the necessary authority to enter into this Agreement and carry out its obligations hereunder; (b) Customer has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Company Content (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Company’s use of the Company Content in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, WHOCO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WHOCO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES (INCLUDING THE SERVICES OUTPUT), IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. WHOCO DOES NOT WARRANT THAT THE SERVICES WILL BE CONTINUOUSLY AVAILABLE, ERROR-FREE, SECURE OR FREE FROM BUGS OR THAT ALL DEFECTS IN THE SERVICES WILL BE CORRECTED. WHOCO’S ONLY OBLIGATIONS WITH RESPECT TO THE SERVICES ARE EXPRESSLY STATED IN THIS AGREEMENT.

7. Indemnification

Indemnification by WhoCo

WhoCo will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of the Services in accordance with this Agreement violates, infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid or payable by Customer under a WhoCo and court-approved settlement of, a Claim Against Customer, provided Customer: (a) promptly gives WhoCo written notice of the Claim Against Customer, (b) gives WhoCo sole control of the defense and settlement of the Claim Against Customer (except that WhoCo may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability for past infringements), and (c) gives WhoCo all reasonable assistance. If WhoCo receives information about an infringement or misappropriation claim related to the Services, WhoCo may in its discretion and at no cost to Customer: (i) modify the Services so that it no longer infringes or misappropriates, (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement, or (iii) terminate Customer’s access to the Services upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated Services, depreciated over three years on a straight-line basis. WhoCo will not have any obligations under this Section or any liability to the extent (A) a Claim Against Customer arises from Company Content, a non-WhoCo application or Customer’s breach of this Agreement, or (B) the Claim Against Customer would not have arisen but for (I) Customer’s combination or use of the Services with non-WhoCo software, services or data, (II) modification of the Services by anyone other than WhoCo, (III) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (IV) WhoCo’s customization of the Services to meet Customer’s particular specifications or instructions, or (V) Customer’s use of the Services in a manner not strictly in accordance with this Agreement.

Indemnification by Customer

Customer will defend WhoCo against any claim, demand, suit or proceeding made or brought against WhoCo by a third party (a) alleging that the Company Content (or WhoCo’s use thereof), or Customer’s use of any Services in breach of this Agreement, violates, infringes or misappropriates a third party’s intellectual property, privacy or other rights, or violates applicable law, (b) alleging facts that, if true, constitute a breach of this Agreement by Customer or acts or omissions by Customer described in Section 7.1(I)-(V), or (c) related to Customer’s use of or decision based on the Services, except to the extent constituting grounds for a Claim Against Customer (collectively, a “Claim Against WhoCo”), and will indemnify and hold harmless WhoCo and its affiliates, officers, agents, and employees from any damages, attorney fees and costs finally awarded against WhoCo as a result of, or for any amounts paid or payable by WhoCo under a settlement of, a Claim Against WhoCo. WhoCo will: (i) promptly give Customer written notice of the Claim Against WhoCo, (ii) give Customer sole control of the defense and settlement of the Claim Against WhoCo (except that Customer must give WhoCo approval over any settlement), and (iii) gives Customer all reasonable assistance, at Customer’s cost.

Exclusive Remedy

This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of third-party claim described in Idemnification by WhoCo.

8. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WHOCO BE LIABLE FOR ANY LOST DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND EVEN IF WHOCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF WHOCO, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL SUBSCRIPTION FEES PAID BY CUSTOMER TO WHOCO UNDER THIS AGREEMENT IN THE SIX (6)-MONTH PERIOD PRIOR TO THE CLAIM, OR $500 IF THE CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATION UNDER THIS AGREEMENT.

9. Dispute Resolution; Arbitration Agreement; No Class Action

Dispute Resolution

The parties must submit all claims and issues arising from, relating to, or connected with this Agreement to binding arbitration (e.g., a contract breach claim, indemnification duty issue, and questions regarding an arbitrator’s authority) in accordance with this Section. A single arbitrator will conduct the arbitration in Los Angeles County, CA, and in accordance with the current Rules of Practice and Procedure of the Judicial Arbitration and Mediation Service (JAMS). The arbitrator is bound by strict rules of law and this Agreement’s terms (i.e., the arbitrator may not waive, change or equitably excuse any Agreement term, including ancillary documents (e.g., an amendment)). The arbitrator does not have the power to commit errors of law or legal reasoning, and a court may vacate or correct an arbitration award because of such errors. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs all issues arising from the arbitrability or the enforcement of the agreement to arbitrate, except for the requirements to apply California state law (but disregarding any principle of law that would cause the application of the law of any other jurisdiction or permit a court, as opposed to the arbitrator, to determine the applicability or validity of this agreement to arbitrate). The parties will equally share the arbitrators’ fees and other arbitration costs, regardless of outcome. The parties must submit or file any claim that would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure) within the same arbitration proceedings as the claim to which it relates; any such claim which is not submitted or filed will be barred. The arbitrator may only award damages and may only grant relief that is permitted by this Agreement. The arbitrator’s decision, award and relief will be conclusive and binding on the parties. Either party may enter the arbitrator’s decision, award and relief in any court having appropriate jurisdiction.

No Class Action

Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the parties may be consolidated with any other arbitration proceeding involving WhoCo and any other person or entity. Each party shall file and prosecute arbitration proceedings separately and individually in the name of Customer and WhoCo, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section.

Governing Law

This Agreement, and any Dispute arising out of or related to this Agreement, will be governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, excluding its conflicts of law rules, regardless of Customer’s country of origin or where Customer accesses the Services. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All claims and issues arising from, relating to, or connected with this Agreement that an arbitrator determines are excluded from this Agreement’s arbitration requirements may only be filed and resolved by state or federal courts located in Los Angeles County, California, and each party consents to the exclusive jurisdiction of those courts. Further, WhoCo may obtain injunctive or other equitable relief in any court of competent jurisdiction in the event of any infringement or threatened infringement of its intellectual property rights. Neither party will claim that an aforementioned court lacks personal jurisdiction, is an inconvenient forum or is an improper venue.

10. General Provisions

Force Majeure

Neither party will be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder (except for failure to timely pay) if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.

Notices

Except as may be otherwise set forth herein, all notices, requests, demands and other communications hereunder will be in writing (including by email provided that delivery to the recipient is confirmed). Any hard copies of such communications will be deemed to have been duly given on the next day if delivered personally or sent by express courier to such party. All notices will be sent to the following address: If to Customer, to the name and address contained in the applicable Order Form or to the email address provided upon registration for the Services. If to WhoCo: The Who Company, Inc., Attention: Legal Department, 2210 Main Street, 2nd Floor, Santa Monica, CA 90405, or email: legal@whoco.com. Such addresses may be changed by notice given by one party to the other pursuant to this Section.

Export Control

Customer will not export or re-export, either directly or indirectly, any technical data, software, process, product, service, or system obtained from WhoCo, without first complying with the United States and all other applicable government laws and regulations governing the export, re-export, and import of those items.

Miscellaneous

Neither party may assign, delegate, or otherwise transfer its rights or obligations under this Agreement in whole or in part, except that either party may assign this Agreement in connection with a merger, acquisition, sale of a majority of its equity, sale of substantially all of its assets to which this Agreement relates, or a similar transaction. This Agreement will be binding upon and will inure to the benefit of the parties and their permitted successors and assigns. This Agreement (including applicable Order Forms) constitutes the entire agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. Without limitation, the terms of any other document, course of dealing, or course of trade will not modify this Agreement, except as expressly provided in this Agreement or as the parties may agree in writing. No waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by the party or parties to be bound thereby. Failure to promptly enforce a provision of this Agreement will not be construed as a waiver of such provision. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other party. Except as otherwise set forth in this Agreement, neither party is restricted from doing business with any other person, entity or organization by virtue of this Agreement. Neither party to this Agreement is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf or in the name of the other party, or to bind such other party in any manner. Nothing contained in this Agreement will be deemed to create any third party beneficiary right upon any third party whatsoever. Each of the parties acknowledges that it has had the opportunity to have this Agreement reviewed or not by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. Neither party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. For purposes of this Agreement, the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”. This Agreement may be executed in counterparts, each of which will constitute the same instrument. Facsimile or electronic signatures will be given the same effect and weight as originals.