Last Updated: January 2023
These Snoptimizer® Terms and Conditions (these “Terms”) are entered into between between IT Strategists, Inc.,a California Corporation dba ITS Snowflake Solutions and Snoptimizer® (“Snoptimizer®,” “we” or “us”), and the customer set forth in the Order (defined below) (“Customer” or “you”). These Terms include, and incorporate by this reference, (a) any ordering document between Snoptimizer® and Customer referencing these Terms, if any (an “Order” and together with these Terms, the “Agreement”) and (b) all amendments and addenda to the Agreement. Snoptimizer® and Customer are sometimes referred to collectively as the “Parties” and individually as a “Party.”
THE AGREEMENT TAKES EFFECT WHEN CUSTOMER CLICKS THE “SIGN UP” BUTTON OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY ACCESSING OR USING THE SERVICES AFTER THE EFFECTIVE DATE, CUSTOMER (A) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THE AGREEMENT; (B) REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE AGREEMENT AND, IF ENTERING INTO THE AGREEMENT FOR AN ORGANIZATION, THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPTS THE AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS.
IF CUSTOMER DOES NOT ACCEPT THESE TERMS, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.
Snoptimizer® and Customer agree as follows:
Section 1: Definitions
“Account” means a single user electronic account permitting Customer or Authorized Users to access and use the Services.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs).
“Customer Data” means any data or information (a) provided by Customer or any Authorized User to Snoptimimzer collected through the Services, or otherwise or (b) collected through the interaction of Customer with any Services. For example, Customer Data includes log-in information for Authorized Users. This includes sensitive, confidential, or personally identifiable information that is transmitted by, processed in some way, or stored in electronic media.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Feedback” means information and feedback (including questions, comments, suggestions, or the like) regarding the performance, features, functionality and overall Customer experience using the Services.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“IP Dispute” means any dispute, cause of action, claim, or controversy relating to Customer’s or Snoptimizer’s Intellectual Property Rights.
“Recipient” means a Party that receives any Confidential Information of the other Party.
“Services” means (a) Snoptimizer.com, and any successor or related website designated by Snoptimizer®, (b) the Snoptimizer® Platform, (c) the software service designed by Snoptimizer®, (d) any improvements or modifications in or to the foregoing, and (e) other materials or information developed, discovered, authored or reduced to practice in the performance of the Services.
“Snoptimizer® Parties” means Snoptimizer® and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.
“Snoptimizer® Platform” means the software as a service provided by Snoptimizer® under the Agreement.
“Trademarks” means any trademarks, service marks, service or trade names, logos, and other designations of a Party and its affiliates.
Section 2: Customer’s Rights in the Services
2.1 Rights to Use the Services. Snoptimizer® hereby grants to Customer a limited, nonexclusive, nontransferable, non-sublicensable, revocable right during the Term to (a) create an Account, (b) access, use, implement and operate, as applicable, the Services, and (c) invite and enable up to the number of Customer employees or other designees (“Authorized Users”) permitted by Customer’s Usage Plan set forth in an Order to create an Account and access and use the Services. Customer is responsible for all Authorized Users’ compliance with the Agreement.
2.2 Free Trials. Customer may receive access to a Service (or Service features) as a Free Trial (“Free Trial”), as identified in an Order. Any usage of a Free Trial by Customer is optional. With respect to any Free Trial that Snoptimizer® makes available to Customer, Snoptimizer® grants the rights to Customer set forth in Section 2.1 solely for Customer’s internal evaluation during the period designated by Snoptimizer® (or if not designated, 7 days). The Free Trial may be subject to additional terms provided by Snoptimizer® and agreed to by Customer. Snoptimizer® may suspend or terminate Customer’s access to the Services under a Free Trial at any time for any reason.
2.3 Notwithstanding anything in the Agreement to the contrary, Snoptimizer® has no obligation to provide support, maintenance, upgrades, modifications, or new releases for the Services under a Free Trial. CUSTOMER AGREES THAT THE SERVICES OFFERED UNDER A FREE TRIAL ARE BEING DELIVERED “AS IS” WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL Snoptimizer® BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR DAMAGES, DIRECT OR INDIRECT, OF ANY NATURE OR EXPENSES INCURRED BY CUSTOMER IN CONNECTION WITH ITS USE OF THE SERVICES DURING A FREE TRIAL. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WILL BE TO TERMINATE ITS USE OF THE SERVICES UNDER THE FREE TRIAL AND THE AGREEMENT BY WRITTEN NOTICE TO Snoptimizer®.
2.4 Restrictions; Limitations. Customer may not use the Services in any manner or for any purpose other than as expressly permitted by the Agreement. Without limitation of the foregoing, the rights granted under this Section 2 do not include or authorize: (a) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of the Services or using or accessing the Services to build a competitive product or service; (b)using or exploiting (whether commercially or non-commercially) the Services other than for their intended use. The rights granted under this Section 2 are conditioned on Customer’s and its Authorized Users’ continued compliance with the Agreement.
2.5 Changes to Snoptimizer® Platform. Snoptimizer® may change the features, functionality or other aspects of the Services from time to time and without notice to the Customer, provided that such changes do not materially reduce the functionality of the Services.
2.6 Suspension of Snoptimizer® Platform. Snoptimizer® may, in its sole discretion, immediately suspend access to or use of the Services by Customer or any Authorized User if Customer or any Authorized User violates a material restriction or obligation in the Agreement, or if in Snoptimizer’s reasonable judgment, the Services or any component thereof is about to suffer a significant threat to security or functionality. Snoptimizer® may provide advance notice to Customer of any such suspension based on the nature of the circumstances giving rise to the suspension. Snoptimizer® will use reasonable efforts to re-establish the affected Service after Snoptimizer® determines that the situation giving rise to the suspension has been cured. Snoptimizer® may terminate access to the Services if any of the foregoing causes of suspension are not cured within 30 days after Snoptimizer’s initial notice thereof. Any suspension or termination by Snoptimizer® under this Section 2.6 will not excuse Customer from its obligation to make payment(s) under the Agreement. Any suspension under this Section shall remain in effect until the applicable breach, if curable, is cured.
Section 3: Registration; Support
3.1 Registration. Customer and each Authorized User will need to register for an Account through the Services. Each Account may only be used by one person. Customer will ensure that Customer and each Authorized User that is invited to register for an Account: (a) provide accurate, current and complete information when creating an Account; (b) maintain and promptly update all Account information; (c) do not share passwords with others and restrict access to the Account and their computer or mobile device; (d) promptly notify Snopotimizer if Customer or any Authorized User discovers or otherwise suspects any security breaches related to such user’s Account; and (e) accept responsibility for all unauthorized access and activities that occur under such Authorized User’s Account. Each Account login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else.
3.2 Violations. Customer is liable for all activity that occurs under Authorized Users’ Accounts, Authorized User’s compliance with the Agreement, and any of use, misuse or unauthorized use (including by third parties) of Accounts, and Snoptimizer® reserves the right to terminate the account of any Authorized User for any such unauthorized use. The acts or omissions of any Authorized User or third party under an Authorized User’s Account are considered the Authorized User’s acts or omissions, as applicable. Customer will immediately notify Snoptimizer® of any such violations and take immediate action to remedy such violations.
3.3 Support. During the Term, Snoptimizer® will provide reasonable levels of email support to Customer and Authorized Users relating to the Services during normal business hours (9am to 5pm Pacific Time, Monday through Friday, excluding holidays).
Section 4: Fees, Payments and Taxes
4.1 Fees. Customer will pay the fees described in the applicable Order (collectively, the “Fees”) for the subscription set forth in such Order (the “Subscription”, and the period of such Subscription, the “Subscription Period”).
4.2 Cancellation Policy. Customer may cancel its Subscription upon at least 30 days’ prior to the end of the then-current Subscription Period by notifying Snoptimizer® by email. Customer will be responsible for all charges (including any applicable taxes and other charges) incurred with respect to Fees processed prior to the cancellation of Customer’s Subscription. Without limiting the foregoing, except as otherwise set forth in Section 5 with respect to Customer’s termination for Snopotimizer material breach of the Agreement, Customer will not receive a refund for any partial Subscription Period or any renewal that occurs during the 30 day notice period.
4.3 Invoiced Payment.
(a) Invoicing schedule. Monthly fees are due at the beginning of each monthly term. Snoptimizer® will issue an invoice for the total amount of the variable fees after the first month of service.
(b) Payment terms. Full payment for invoices issued in any given month must be received by Snoptimizer® within 30 days after the issuance of the invoice (which may be sent by email). If Customer is paying by credit card, Customer represents and warrants that it has the right to use the credit card provided and grants Snoptimizer® the right to provide the credit card information, including the credit card number, its expiration date and billing address, to third parties for the purposes of facilitating payment transactions. Snoptimizer® reserves the right to charge a 3% surcharge for any credit card payments. Verification of information may be required prior to the acknowledgment or completion of any payment transaction. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services.
(c) Claims. If Customer believes that Snoptimizer® has invoiced Customer incorrectly, Customer must contact Snoptimizer® no later than 15 days after the date of the invoice in which the claimed error or problem appeared in order to receive an adjustment or credit, if any. Inquiries should be directed to info@snowflakesolutions.com.
4.4 Pricing and Availability. All prices are shown in U.S. dollars. Snoptimizer® reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each Subscription Period, upon 30 days’ prior notice to Customer (which may be sent by email). If Snoptimizer® exercises its rights under this Section 4.4, Customer may cancel its Subscription any time between receipt of such notice and the renewal date of the Subscription.
4.5 Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any national, federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Snoptimizer’s income.
Section 5: Term and Termination.
5.1 Term. The term of the Agreement will commence on the Effective Date and will continue for so long as a Subscription Period is in effect unless and until terminated pursuant to Section 2.6, 4.2, 5.2 or 6.2 of the Agreement (the “Term”).
5.2 Termination for Material Breach. Either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
5.3 Effect of Termination. In the event of any termination of the Term:
(a) All of Customer’s and each Authorized User’s rights (including the license granted in Section 2.1) under the Agreement will immediately terminate and Customer and all Authorized Users will immediately cease any access or use of the Services;
(b) Customer will be responsible for all charges (including any applicable taxes and other charges) incurred with respect to Fees processed prior to the termination of the Term.
(c) If Snoptimizer® terminates the Term for material breach by Customer under Section 5.2, then Customer will remain responsible for the remaining balance of any Fees and Customer must pay within 30 days of termination all such amounts, as well as all sums remaining unpaid for other Orders under the Agreement plus related taxes and expenses; and
(d) Sections 1, 2.2, 3.2, 4, 5.3, 6 through 11 of the Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.
If Customer terminates the Term for material breach by Snoptimizer® under Section 5.2, then Snoptimizer® shall refund to Customer within 30 days of termination any unused pre-paid Fees on a pro rata basis for the remaining Term following the month in which the termination is effective. Except for the foregoing, Customer will not receive a refund for any partial Subscription Period.
Section 6: Indemnification
6.1 By Customer. Customer will defend, indemnify, and hold harmless the Snoptimizer® Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party or Authorized User claim concerning: (a) Customer’s or Authorized Users’ unauthorized use of the Snoptimizer® Platform including use of the Services other than as permitted under the Agreement; (b) any Customer Data or other data or content related to Customer or Authorized Users which Customer provides, uploads, or inputs into the Services; or (c) the combination of the Customer Data with other applications, content or processes. If Snoptimizer® is obligated to respond to a third party subpoena or other compulsory legal order or process described above, Customer will also reimburse Snoptimizer® for reasonable attorneys’ fees, as well as the time and materials spent by Snoptimizer’s employees and contractors responding to the third-party subpoena or other compulsory legal order or process at Snoptimizer’s then-current hourly rates.
6.2 By Snoptimizer®. Snoptimizer® will defend, indemnify, and hold harmless Customer from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim that alleges that the Services infringe, misappropriate, or violate any United States patent, United States trademark or United States copyright or trade secret.
6.3 Procedure. For any claims under this Section 6, the indemnifying party will (a) give the indemnified party prompt written notice of the claim; (b) provide such assistance in connection with the defense and settlement of the claim as the indemnified party may reasonably request; (c) obtain the indemnified party’s written consent prior to (1) selecting and retaining counsel to defend against any claim under this Section 6 and (2) agreeing to any settlement; and (d) comply with any settlement or court order made in connection with the claim (e.g., related to the future use of any infringing Snoptimizer® product or service).
Section 7: Ownership
7.1 The Services. As between Snoptimizer® and Customer, Snoptimizer® owns all right, title, and interest in and to the Services, together with all Intellectual Property Rights therein or thereto. Except as otherwise specified in Section 2.1 of the Agreement, Customer does not obtain any rights under the Agreement from Snoptimizer® to the Services, including any related Intellectual Property Rights.
7.2 Feedback. Customer and Authorized Users may voluntarily provide Snoptimizer® with Feedback and may make Authorized Users available to Snoptimizer® on a reasonable basis for this purpose. Customer will not, and will ensure Authorized Users do not, provide any such Feedback to any third party without Snoptimizer’s prior written consent in each instance. Any Feedback Customer or Authorized Users provide to Snoptimizer® will become the sole property of Snoptimizer®. Snoptimizer® will own, and Customer and Authorized Users hereby assign, all exclusive rights, including all Intellectual Property Rights in and to Feedback, excluding, however, any Customer Data included in such Feedback (if any), and Snoptimizer® will be entitled to the unrestricted use and dissemination of Feedback for any purpose without acknowledgment or compensation to Customer or any Authorized Users.
7.3 Trademarks. Each Party owns all right, title and interest in and to such Party’s Trademarks and any goodwill arising out of the use of such Trademarks will remain with and belong to such Party and its licensors. Neither Party’s Trademarks may be copied, imitated or used without the prior written consent of the other Party or the applicable trademark holder; provided, that Customer hereby grants to Snoptimizer® a limited right to use Customer’s Trademarks solely as necessary to provide the Services to Customer hereunder. Additionally, Snoptimimzer may, without Customer’s consent, include Customer’s name and other indicia in its lists of current or former customers in promotional and marketing materials.
Section 8: Limited Warranties and Remedies
8.1 Warranties. Snoptimizer® represents and warrants that: (a) it will provide the Services with commercially reasonable care and skill and in material compliance with applicable laws; (b) Snoptimizer® is the exclusive owner of the software and Services, or otherwise has the right to provide access to the same to Customer, and that neither the software, Services nor Customer’s access to or use of the same infringes, violates, or misappropriates the patent, copyright, trademark, trade secret, or other Intellectual Property Rights of any third party; and (c) there exists no agreement or restriction that would interfere with or prevent Snoptimizer® from entering into the Agreement or rendering Services or providing the Subscription described herein.
8.2 Remedy. Customer must give Snoptimizer® notice of a material defect or nonconformance within 30 days from when Customer becomes aware of the such defect or nonconformance. Snoptimizer’s sole obligation with respect to a breach of the warranties in Section 8.1 will be to use commercially reasonable efforts to correct any nonconformance of the Services.
8.3 DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 8.1: (A) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CUSTOMER HEREBY WAIVES, RELEASES, AND DISCLAIMS, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES INCLUDING ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR CUSTOMER DATA PROVIDED BY CUSTOMER OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; AND (B) EXCEPT TO THE EXTENT PROHIBITED BY LAW, SNOPOTIMIZER AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THIS SECTION DOES NOT APPLY TO SERVICES OFFERED UNDER A FREE TRIAL, FOR WHICH A SEPARATE DISCLAIMER IS SET FORTH IN SECTION 2.3.
Section 9: Limitations of Liability; Insurance
9.1 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any cause or condition beyond such Party’s reasonable control (including any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
9.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY OF THE Snoptimizer® PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, OR THE PERFORMANCE OF SERVICES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE Snoptimizer® PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE AGREEMENT EXCEED THE COMPENSATION PAID BY CUSTOMER, IF ANY, TO Snoptimizer® FOR THE SERVICES DURING THE 12 MONTHS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY. THIS SECTION DOES NOT APPLY TO SERVICES OFFERED UNDER A FREE TRIAL, FOR WHICH A SEPARATE LIMITATION IS SET FORTH IN SECTION 2.3.
Section 10: Confidential Information
Each Party reserves any and all right, title and interest (including any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other Party under the Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 10 will not be interpreted or construed to prohibit any use or disclosure of information: (a) that was known to Recipient prior to receiving the same from the Discloser in connection with the Agreement; (b) that is independently developed by the Recipient; (c) that is acquired by the Recipient from another source without restriction as to use or disclosure; (d) that is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under the Agreement; (e) that is required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (f) that is made with the written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
Section 11: Miscellaneous
11.1 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. The Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
11.2 Reference Program. Customer may voluntarily consult with Snoptimizer® and work in good faith to agree on quotes and statements about Customer’s experience with the Snoptimizer® Services. If Customer or an Authorized User volunteers such quotes or statements, Snoptimizer® may, at its option, use such quotes and statements in connection with its sales and marketing activities.
11.3 No Third Party Beneficiaries. The Agreement does not create any third party beneficiary rights in any individual or entity that is not a Party to the Agreement.
11.4 Assignment. Neither Party may assign the Agreement or any right, interest or benefit under the Agreement without prior written consent of the other Party; provided that either party may assign the Agreement or any right, interest or benefit under the Agreement without such prior written consent to an entity that acquires all or substantially all of the business or assets of such party to which the Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, the Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
11.5 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of the Agreement, or to exercise any right or remedy under the Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.6 Dispute Resolution Procedures. Except for (a) any IP Disputes or (b) any claim for injunctive relief, Customer and Snoptimizer® each waive their respective rights to a jury trial and to have any dispute arising out of or related to the Agreement or the Services resolved in court. Instead, all disputes arising out of or relating to the Agreement or the Snoptimizer® Platform will be resolved through confidential binding arbitration held in Los Angeles, California. Customer and Snoptimizer® agree that the state or federal courts of the State of California and the United States sitting in Los Angeles, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. Any claim Customer may have arising out of or related to the Agreement or the Snoptimizer® Platform must be filed within one year after such claim arose; otherwise, the claim is permanently barred.
11.7 Severability. If any provision of the Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from the Agreement and will not affect the validity and enforceability of any remaining provisions.
11.8 Applicable Law. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law principles to the contrary. Subject to Section 11.5, Customer hereby consents to the jurisdiction and venue of the state and federal courts located in Los Angeles, California, U.S.A. with respect to any claim arising under or by reason of the Agreement.
11.9 Entire Agreement. The Agreement, together with any agreements, or other policy or guideline referenced in the Agreement, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
