TERMS OF SERVICE

We at 100ms Inc (hereinafter referred to as “we” / “our” / “us” / “100ms” / “Company”) own and operate a Platform (defined below) through which we provide Services (defined below) to our customers (including their representatives and authorized personnel) (hereinafter referred to as “you” / “your” / “Customer”). These terms (“Terms”) govern your use of the Platform and shall be read in conjunction with the privacy policy available at https://www.100ms.live/privacy-policy (“Privacy Policy”), pursuant to your subscription to the Services pursuant to the relevant Order Form (defined below) entered into between you and the Company.

By accessing the Platform and using the Services, you acknowledge that you have read, understood, and agree to be legally bound by these Terms, the Privacy Policy, and the terms and conditions set out in the Order Form (collectively, and as amended from time to time, this “Agreement”). Please do not use the Services if you do not accept the Terms or are unable to be bound by the Terms.

100ms and you are collectively referred to as the “Parties” and individually as a “Party”.

DEFINITIONS & INTERPRETATION
1. Definitions.
  1. “Affiliates” refers to any corporation, association, or other entity that directly or indirectly owns, is owned by, or is under common ownership with either Party, respectively, either currently or during the term of this Agreement.
  2. “Business Day” shall mean any day other than Saturday, Sunday or any other public holiday as designated in California.
  3. “Claim” shall mean any claims bys either Party in respect of or pursuant to any liability, suits, claims, actions, proceedings, losses, damages, judgments, and reasonable costs incurred by either Party.
  4. “Confidential Information” shall mean information including, without limitation, all data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked ‘confidential’, or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include any related source or object codes, technical data, data output of the Services and/or the Platform.
  5. “Documentation” shall mean and include any and all technical user documentation / guidelines concerning the Services and/or the Platform.
  6. “Error” shall mean any reproducible material failure of the Services and/or the Platform to function in accordance with its Documentation.
  7. “Fees” shall have the meaning given to the term in Clause 7.1.
  8. “Initial Service Term” shall have the meaning given to it in Clause 8.2.
  9. “Intellectual Property” shall mean and include all of the rights with respect to patents, patent applications, patent disclosures and inventions (whether or not patentable and whether or not reduced to practice) and any reissue, continuation, revision, or extension ; trademarks, service marks, trade names, service names, insignia, internet domain names, logos and corporate names together with all goodwill associated therewith, including, without limitation, all translations, adaptations, derivatives and combinations of the foregoing, and registrations, applications and renewals related thereto; copyrights and copyrightable works; proprietary know-how; and all registrations, applications and renewals for any of the foregoing; trade secrets; other intellectual property rights; and all copies and tangible embodiments of the foregoing (in whatever form or medium).
  10. “Law(s)” or “Applicable Law(s)” shall mean and include all applicable local, state and international laws, including, without limitation, those related to data privacy and data security.
  11. “Order Form” shall mean the order form entered into between the Parties, containing the details of the Parties, the Services, Fees, payment terms, and other commercial terms agreed between the Parties. In the event of a conflict between these Terms and a relevant Order Form, the relevant Order Form shall prevail.
  12. “Personal Information” shall mean and include all the variations of “personal information”; “personal data”; “personally identifiable information”, or such other similar expressions as used under Applicable Laws.
  13. “Platform” shall mean the Company’s proprietary software platform provided on a software-as-a-service (SaaS) model, including the associated application programming interface(s).
  14. “Protected Health Information” or “PHI” shall have the meaning as ascribed to the term under the Health Insurance Portability and Accountability Act, 1996 (“HIPAA”).
  15. “Subscription Services” or “Services” shall mean the services more particularly set out in the Order Form entered into between 100ms and you, and reasonable technical support services in accordance with Company’s standard practice.
  16. “Data” shall mean any of your information, documents, or electronic files that are provided to the Company hereunder, including any information or documents containing Personal Information or Protected Health Information or any information related to the Users.
  17. “Users” shall mean natural persons being your representatives and/or your employees, who have been granted access and use of the Platform for and on your behalf.
2. Interpretation. In this Agreement, unless the context requires otherwise:
  1. the headings are inserted for ease of reference only and shall not affect the construction or interpretation of this Agreement;
  2. references to one gender include all genders;
  3. any reference to any Law is a reference to it as it may have been, or may from time to time be, amended, modified, consolidated or re-enacted (with or without modification);
  4. words in the singular shall include the plural and vice versa;
  5. any reference of “days” would mean “calendar days” and similarly reference of year and month would mean “calendar month” and “calendar year”; and
  6. any reference to “written” or “in writing” shall include intimation by email.
  7. no provision of this Agreement shall be interpreted in favor of, or against, any Party by reason of the extent to which such Party or its counsel participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof.
SAAS SERVICES AND SUPPORT
1. During the Subscription Term (defined below), and in consideration of the payment of the Fees by you, the Company hereby grants to you a limited, non-exclusive, non-transferable, non-sub-licensable, and revocable right to access and use the Platform and avail the Subscription Services, in accordance with this Agreement and the relevant Order Form entered into between 100ms and you. It is hereby clarified that you shall not have any other right, title or interest in the Platform or Services, unless otherwise granted hereunder.
2. As part of the registration process, you will identify an administrative user name and password for your account on the dashboard available on the Platform (at https://dashboard.100ms.live) as per the Company’s defined user name and password policies available on the Platform (at https://www.100ms.live/terms-of-service).
RESTRICTIONS AND RESPONSIBILITIES
1. You undertake and agree that you:
  1. will not, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iii) access, store, distribute or transmit or introduce any malicious code during the course of its use of the Platform and/or Services; (iv) shall not create internet “links" to the Services or "frame" or "mirror" any content on any other server or wireless or Internet-based device that is related to the Platform and/or the Services; (v) use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third-party; or (vi) remove any proprietary notices or labels;
  2. shall not share with the Company, or introduce to the Platform any data that infringes third party rights, is libelous, or otherwise unlawful or violative of third-party privacy rights or Applicable Laws;
  3. shall have and maintain all rights, approvals, authorizations and consents to collect, transfer and process the Personal Information and/or Protected Health Information;
  4. are responsible for uploading the Data to the Platform, properly configuring and operating the Platform, maintaining appropriate security with relation to the data and/or Data being introduced to or uploaded on the Platform, and maintaining backup of the User Data as mandated under Applicable Laws;
  5. are solely responsible for access controls to the Platform and for maintaining the security of all usernames and passwords of the Users. You undertake to immediately notify the Company if you become aware of any loss or theft or unauthorized use of any of your passwords or usernames, or any of the User passwords or usernames;
  6. shall report to the Company immediately and use reasonable efforts to stop immediately any copying or distribution or unauthorized usage of content or infringement of Intellectual Property/trademark rights or unauthorized use or access of the Services and/or the Platform that is known or suspected by you or the Users; and
  7. represent, covenant, and warrant that you will use the Services only in compliance with the Company’s standard policies then in effect (“Policies”), as available on the Platform, and all Applicable Laws. You hereby agree to indemnify and hold harmless the Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of the Services. Although the Company has no obligation to monitor your use of the Services, the Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2. You shall be solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform and the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment with or without your knowledge or consent.
DATA
1. You shall lawfully provide all relevant data (which may include without limitation Data, Protected Health Information, and/or Personal Information) necessary for providing the Services as may be agreed between the Parties, and shall ensure the accuracy, quality, integrity, reliability, completeness and the right without encumbrance to use all such data, including without limitation applicable consents under Law, and right and title to any Intellectual Property to be provided by you.
2. You agree and understand that you are responsible for ensuring compliance with any and all regulations and Laws relating to the collection and usage of the Personal Information of your Users and/or end customers, and any other individuals, as may be applicable, including without limitation any requirements relating to consent, purpose, usage, transfers (including cross-border transfers), and any other requirements as may be applicable. In the event of any claim or threatened claim against the Company in relation to such compliance and/or data requirements you shall, upon request from the Company, furnish evidence of such compliance no later than 10 (ten) days from the date of such request, or such shorter period as may be required under applicable Law. In the event of any non-compliance, you shall indemnify the Company for any Claims incurred as a result of or in relation to such non-compliance.
CONFIDENTIALITY
1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose Confidential Information relating to the Disclosing Party’s business and operations, including technical, non-technical or financial information relating to the Disclosing Party’s business or information related to the Platform and the Services, or Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, (ii) to use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure of such Confidential Information it uses to protect its own proprietary and Confidential Information of like nature, which shall not be less than a reasonable degree of care; (iii) to hold all such Confidential Information in strict confidence and not use, sell, copy, transfer, reproduce, or divulge such Confidential Information to any third-party; and (iv) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third-party any such Confidential Information.
2. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (i) is or becomes generally available to the public (except as a result of an act or omission of the Receiving Party), or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction or breach of any other agreement by a third-party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (iv) is required to be disclosed by or under Law.
3. In the event of any PHI being shared with the Company and applicability of HIPAA, in order to maintain security and confidentiality of the PHI as may be required by HIPAA, the Parties hereby agree to abide by the terms provided under the Business Associate Agreement as may be signed separately by the Parties.
PROPRIETARY RIGHTS
1. You shall own all right, title and interest in and to the Data. You are the owner of any data, information or material originated by you that you submit or compile in the course of using the Services. The Company has no ownership rights in or to the Data. You shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness and Intellectual Property ownership or right to collect and use the Data.
2. The Company shall own and retain all right, title and interest in and to (a) the Services and the Platform, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or the Platform, and (c) all Intellectual Property rights related to any of the foregoing.
3. Reports. You shall be permitted to download and/or print a reasonable number of copies of reports or analytics, including graphs, statistics, derivative works, reports and similar Intellectual Property generated from the data collected pursuant to this Agreement (“Reports”). All the Intellectual Property rights in any Reports produced by the Company pursuant to the Services (but not including any rights in the processes, technology, code, or otherwise any part of the Services or Intellectual Property thereto) shall vest in you, and the Company shall not have any claim to any right, title or interest in any such Reports.
4. It is clarified that all Intellectual Property rights in and to the Data and any results or Reports generated via the Platform shall be solely owned by you, and you shall be solely responsible for any and all such data uploaded on to the Platform.
5. Aggregate and Anonymized Data. The Company may monitor your use of the Subscription Services and use the data gathered in an aggregate and anonymous manner.
6. Security Measures. The Company shall adopt and maintain reasonable organizational and technical safeguards for the protection of the security, confidentiality and integrity of the Data.
PAYMENT OF FEES
1. In consideration of the Services, you will pay the Company the then applicable fees described in the Order Form for the Services, in accordance with the terms therein (the “Fees”). The Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (defined below) or then current renewal term, upon thirty (30) days prior notice to you (which may be sent by email). If you believe that the Company has billed you incorrectly, you must contact the Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit, which shall be determined solely by the Company. Inquiries should be directed to the Company's customer support department.
2. The Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Law, plus all expenses of collection, and may result in immediate termination of the Services. All Fees are exclusive of taxes, levies, cesses and other charges applicable thereon, which shall be borne by you, as required under Applicable Law. If you are required to deduct or withhold any tax, you shall pay the amount deducted or withheld as required by Law in addition to the Fees.
3. If any amount owed by you to the Company under this Agreement or any other agreement for the Services is thirty (30) days or more overdue, the Company may, without limiting its other rights and remedies under Law or this Agreement, accelerate your unpaid Fees and payment obligations (including delay interest) which will become immediately due and payable, and may suspend or downgrade/limit the provision of the Services to you and any or all Users, until such amounts are paid in full. The Company will give at least seven (7) days prior notice to you that your account is overdue, before suspending the Services.
TERM AND TERMINATION
1. The initial service term shall commence on the Start Date set out in the relevant Order Form and be valid for the period specified therein (“Initial Service Term”). Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for such additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either Party requests termination at least thirty (30) days prior to the end of the then-current Term. At the end of the Initial Service Term and each consecutive service term, the Fees will be subject to a 10% (ten percent) increment.
2. In addition to any other remedies it may have, either Party may terminate this Agreement or any relevant Order Form upon thirty (30) days’ notice, if the other Party materially breaches any of the terms or conditions of this Agreement and fails to remedy the same within the expiry of the said notice period.
3. Either Party shall be entitled to terminate this Agreement on the happening of any of the following events (i) if the other Party becomes incapable of performing its obligations under this Agreement or any Order Form; or (ii) if the other Party seeks protection under any insolvency, winding up, creditors’ arrangement, or comparable proceeding.
4. Consequences of Expiry / Termination.
  1. Upon expiry or termination of any of the Services, all payments shall be due and payable immediately by you.
  2. Each Party shall immediately return all data stored on the Platform. After returning such data to the other Party, the returning Party shall be liable to permanently delete or destroy all data in its account, without retaining any copy thereof.
  3. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
  4. All rights granted to each Party herein shall forthwith revert to the other Party, including without limitation the right to use and/or access the Services and/or Platform.
REPRESENTATIONS AND WARRANTIES
1. Each Party represents and warrants that the execution, delivery of this Agreement and/or performance of its obligations under this Agreement will not, with or without the giving of notice or the passage of time, or both:
  1. Organization. It is duly incorporated and validly existing and registered in accordance with the Applicable Laws.
  2. Authority. It has full corporate or other organizational power and authority to execute and deliver, and to perform its obligations under this Agreement. The execution, delivery and performance of this Agreement by it have been duly and validly authorized by all necessary corporate action and are not subject to encumbrances of any nature.
  3. Binding Effect. This Agreement has been duly executed and delivered by the Party, and constitutes legal, valid and binding obligations of the Party, enforceable in accordance with its terms.
  4. No Violation. The execution, delivery and performance of this Agreement, will not (i) violate or conflict with any provision of its constitutional documents, (ii) violate or conflict with any applicable law or permit, consents or authorizations, applicable to the Party, (iii) constitute a breach of or under any contract, agreement, arrangement or judgment to which it is party, or (iv) constitute a breach of any third-party rights including but not limited to any Intellectual Property and/or any proprietary rights of any person or party.
  5. No Proceedings. To the knowledge of the Party, except as disclosed in writing, that there is no proceeding, inquiry, investigation or litigation by any person, whether pending or threatened, against the Party that would be reasonably likely to result in monetary damages, injunctive relief, or the taking of any other action that would be reasonably expected to (in any of the foregoing cases) impair the ability of the Party to perform its obligations under this Agreement.
  6. Consents. It is not required to (i) obtain any authorization, or waiver, of, (ii) make any filing or registration with, or (iii) give any notice to, any authority in connection with or as a condition to the execution, delivery and performance of this Agreement.
DISCLAIMER
1. The Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services and the Platform in a manner which minimizes Errors and interruptions in the Services and the Platform. The Services and/or the Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, TECHNOLOGY-BASED SERVICES ARE INHERENTLY PRONE TO POTENTIAL ERRORS AND INTERRUPTIONS, AND THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND/OR THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND THE PLATFORM ARE PROVIDED “AS IS” AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
INDEMNITY
1. Each Party shall defend and hold harmless, and indemnify the other and its directors and employees from and against all Claims arising out of any negligent act or omission, any infringement or misappropriation of any Intellectual Property, and/or breach of law or regulation by such Party. The indemnification rights under this Agreement are the sole monetary remedy, and are independent of, and in addition to, such other non-monetary rights and remedies each Party may have under this Agreement or under law or in equity or otherwise, including the right to seek injunction, specific performance, rescission or other equitable relief, none of which rights or remedies shall be affected or diminished thereby.
2. The Parties intend that any loss subject to indemnification or reimbursement pursuant to this Clause, wherever applicable and possible, will be net of the amount paid by insurance proceeds that actually reduce the amount of the loss. Accordingly, the indemnity amount required to paid to either Party will be reduced by any insurance proceeds actually recovered by or on behalf of the indemnity in respect of the related loss. In no event shall any Party be entitled to double recovery from the indemnification provisions of this Agreement.
3. The Company shall not be liable to indemnify you, with respect to portions or components of the Service and/or the Platform that are (i) not supplied by the Company, (ii) are made in whole or in part in accordance with your specifications, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination, (iv) where you continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where your use of the Service is not strictly in accordance with this Agreement.
4. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, the Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain a license for you to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and your rights hereunder and provide you a refund of any prepaid, unused fees for the Services.
LIMITATION OF LIABILITY
1. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR FOR ANY COSTS, LIABILITIES, ATTORNEYS FEES OR ANY OTHER DAMAGES. NEITHER PARTY WILL BE LIABLE FOR ANY OTHER DAMAGES (OTHER THAN OUTSTANDING PAYMENT OBLIGATIONS AND APPLICABLE INTEREST THEREON, IF ANY) FOR AN AMOUNT EXCEEDING THE AMOUNT OF THE FEES PAID BY YOU TO THE COMPANY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM FOR DAMAGES. THIS LIMITATION SHALL NOT APPLY TO DIRECT LOSSES ARISING OUT OF EITHER PARTY’S FRAUD, WILFUL MISREPRESENTATION, WILFUL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF INTELLECTUAL PROPERTY RIGHTS OR DATA PRIVACY OBLIGATIONS, BREACH OF YOUR OBLIGATIONS, BREACH OF CONFIDENTIALITY PROVISIONS UNDER THIS AGREEMENT OR BREACH OF APPLICABLE LAWS, INCLUDING LAWS RELATED TO DATA PRIVACY.
MISCELLANEOUS
1. Force Majeure. Neither Party shall be responsible for failure or delay in performance (except in respect of payment obligations hereunder), if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, pandemic, acts of God, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature (“Force Majeure Event”). Each Party will use reasonable efforts to mitigate the effect of a Force Majeure Event. The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations hereunder shall resume.
2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, or for any reason invalid, void or unenforceable, the remainder of the provisions shall, to the extent practicable, remain in full force and effect and Parties will negotiate in good faith to amend such invalid, void or unenforceable provision to give effect to the intended purpose of such provision in accordance with applicable laws.
3. Relationship Between the Parties. No joint venture, partnership, employment, or agency relationship is created between the Company and you as a result of this Agreement or use of the Platform or the Services.
4. Assignment. You may assign your rights hereunder in the event of a merger or acquisition of all or substantially all of its assets; in all other cases, the Company’s prior written approval shall be required for assignment and the same shall not be unreasonably withheld. The Company may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law; in all other cases, your prior written approval shall be required for assignment and the same shall not be unreasonably withheld.
5. No Waiver. The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
6. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions, and shall, subject to Clause 13.7 below, be subject to the courts of California.
7. Dispute Resolution.
  1. The Parties shall attempt in good faith to resolve any disputes, differences or Claims arising out of or relating to this Agreement promptly by negotiation amongst the management of Company and you.
  2. Any dispute or Claim which is not amicably settled between the Parties within thirty (30) days of written notice of such dispute or Claim having been furnished by the complaining Party to the other Party, shall be resolved by arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of submission, as modified by this Clause. The arbitration will be heard and determined by a single arbitrator selected by mutual agreement of the Parties, or, failing agreement within thirty (30) days following the date of receipt by the respondent of the claim, by JAMS. Such arbitration will take place in California. The arbitration award so given will be a final and binding determination of the dispute and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the results of the arbitration or as otherwise required by law, neither Party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written agreement of both Parties.
  3. Publicity. Either Party shall have the right to use the other Party's name, trade name, service marks, trademark, logo on its respective website and any promotional or advertising material, statement, document press release or broadcast which lists clients or service providers respectively, and in connection with this Agreement.
  4. Entire Agreement. This Agreement, including its Annexures, and any additional Order Forms, Statements of Work, modifications or addenda that may be entered into from time to time constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Any modification to this Agreement or an Order Form or a Statement of Work shall be in writing and mutually agreed to by the Parties.
  5. Specific Performance. The Parties agree that damages may not be an adequate remedy and that they shall be entitled to an injunction, restraining order, right for recovery, suit for specific performance or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate to restrain the other Party(ies) from committing any violation or enforce the performance of the covenants, representations and obligations contained in this Agreement. These injunctive remedies are cumulative and are in addition to any other rights and remedies that each Party may have at applicable Law, including a right for damages.
  6. Electronic Signatures. The Parties agree that the electronic signature of a Party to this Agreement shall be as valid as an original signature of such Party and shall be effective to bind such Party to this Agreement. Parties agree that the electronically signed document (including this Agreement) shall be deemed (i) to be “written” or “in writing”, (ii) to have been signed, and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files.