goTenna Online Management Portal
goTenna, Inc. (“goTenna”, “we,” “our,” or “us”) has established the goTenna Management Portal located at portal.goTenna.com (the “Portal”) in order to provide users of the goTenna Pro™ mesh networking radio device (the “Device”) with (a) the ability to set the radio frequencies of their Devices using our proprietary radio programming software (the “RP Software”) and (b) access to certain services associated with the Device (“Services”), some of which are optional and are offered on a paid subscription basis (“Premium Services”). The Devices are not usable unless the user first accesses the Portal and use the RP Software in order to set radio frequencies for the Devices, and enable certain Services which will allow uploading of Device data to the Portal, online storage of the user’s data, and the ability to manage and share the user’s data.
If you are entering into the Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to the Agreement, in which case the terms “you” or “your” refers to such entity. Customer and goTenna are each referred to herein as a “Party,” and together are referred to herein as the “Parties.” BY CLICKING THE “ACCEPT” BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU AND YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE PORTAL, THE RP SOFTWARE OR THE SERVICES, AND YOU WILL NOT BE ABLE TO USE YOUR DEVICES.
- Additional Terms.
1.1. App Terms. We may from time to time make available certain software applications available for use with your Devices which are governed by separate terms and conditions provided with those apps (“Apps”). Your use of any Apps will be subject to the terms and conditions provided with those Apps, which terms are hereby incorporated into the Agreement and made a part hereof by reference.
1.2. Additional Terms for Premium Services. Your access to and use of Premium Services may be subject to additional terms and conditions set forth in (a) an online or other order form that is submitted by you and accepted by us with respect to your subscription to such Premium Services (an “Order Form”) and/or (b) a supplemental terms addendum provided to you by goTenna when you purchase a subscription to such Premium Services (a “Premium Service Addendum”). The terms of any Order Forms and Premium Service Addenda are hereby incorporated into the Agreement and made a part hereof by reference.
- RP Software and Services.
2.1. Access to the RP Software. Subject to the terms and conditions of the Agreement, goTenna hereby grants you a limited, non-exclusive, non-transferable (except to an acquirer of your
business) right to access and use the RP Software via the Portal for the sole purpose of setting radio frequencies for your Devices in accordance with all applicable laws, regulations and rules, and provided that you have obtained all required licenses to use such radio frequencies from the Federal Communications Commission (“FCC”) and any other applicable governmental authorities. Your access to the RP Software will be provided through the Portal on a software-as-a-service basis; you will not be provided with a downloadable copy of the RP Software. You are solely responsible for complying with all applicable laws, regulations and rules governing your Devices’ use of the radio frequencies that you set for your Devices, and for maintaining all required FCC and other licenses to use such radio frequencies.
2.2. Access to the Services. Subject to the terms and conditions of the Agreement, goTenna hereby grants you a limited, non-exclusive, non-transferable (except to an acquirer of your business) right to access and use for your internal purposes (a) any Premium Services that are included in your then-current Premium Service subscription and (b) any other Services that goTenna makes available to Device users at no additional charge.
2.3. Beta Features. From time to time, we may invite you to try “beta” features or functionalities of the Portal, the Services or the RP Software which are not generally available to our customers for production use at no charge. You may accept or decline any such trial in your sole discretion. Such beta features are for evaluation purposes only and not for production use, are not considered part of the products and services provided by us under the Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to all of our customers for production use or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Portal, the Services or the RP Software. We will have no liability to you or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and your use of any beta feature is at your own risk.
2.4. Authorized Users. Your access to the Portal and the Services will be limited to your employees, contractors, or agents authorized by you to access and use the Portal and the Services pursuant to the terms and conditions of the Agreement, subject to any user limitations that we communicate to you (including, for example, limitations on the number of users that have administrator logins to the Portal or Services) (“Authorized Users”). You are responsible for the acts and omissions of your Authorized Users and any other person who access and uses the Portal, the Services or the RP Software using any Authorized User’s Portal log-in credentials.
2.5. Restrictions on Use. You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Portal, the Services or the RP Software; (ii) allow an Authorized User to share with any other Authorized User or other person his or her Portal log-in credentials (without limiting the foregoing, an Authorized User who is issued an administrator login to the Portal or the Services may not share that login with any other Authorized User or other person); (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services or the RP Software; (iv) modify, adapt, or translate the Services or the RP Software; (v) make any copies of the Services or the RP Software; (vi) resell, distribute, or sublicense the Services or the RP Software or use either of the foregoing for the benefit of anyone other than you or the Authorized Users; (vii) remove or modify any proprietary markings or restrictive legends placed on the Services or the RP Software; (viii) use the Services or the RP Software in violation of any applicable law, rule, or regulation, in order to build a competitive product or service, or for any purpose not specifically permitted in the Agreement; (ix) introduce, post, or upload to the Portal or the Services any Harmful Code (as defined below); (x) use the Portal or the Services in a manner that, in our sole judgement, degrades the reliability, speed, or operation of the Portal or the Services; or (xi) attempt to circumvent any integration between our SDK and the Portal or the Services or any user or other technical controls of the Portal or the Services. As used herein, “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Portal or the Services, or any other associated
software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Portal or the Services. Any breach of this Section 2.5 by Customer shall be deemed to be a material breach of the Agreement an entitle us to exercise our termination rights hereunder.
2.6. Availability. We will use commercially reasonable efforts to minimize any downtime of the Portal and any Services, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
2.7. Modifications. We reserve the right to modify the Portal, the Services and the RP Software from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Portal, the Services or the RP Software or any portion of any of the foregoing, at any time at our sole and reasonable discretion. However, any such modification or discontinuance will not materially decrease the overall functionality of the Portal, the Services or the RP Software.
- Premium Service Subscriptions.
3.1. Order Forms. If you wish to purchase a subscription to any Premium Services, the specific Premium Services package selected, the applicable fees (the “Premium Subscription Fees”), the subscription term and other details regarding such Premium Services will be set forth in the Order Form.
3.2. Premium Subscription Term. Unless otherwise set forth on the applicable Order Form, each Premium Services subscription will be for an initial term of one (1) year. Upon expiration of the initial term or renewal term, the term of each Premium Services subscription will automatically renewal for consecutive, subsequent renewal terms of one (1) year each, unless either Party provides the other Party with written notice of non-renewal at least 30 days before the end of the then-current term. Each Premium Services subscription may be terminated early as set forth in Section 4 below and for no other reason.
3.3. Premium Subscription Fees. If you purchase a subscription to any Premium Services, you agree to pay to goTenna all applicable Premium Subscription Fees. Unless otherwise set forth on the applicable Order Form, all Premium Subscription Fees will be invoiced annually in advance, and will be paid within 30 days of the invoice date. Payments of Premium Subscription Fees will be paid in U.S. dollars. Notwithstanding anything to the contrary, we reserve the right to increase the Premium Subscription Fees that will apply to a renewal term for a Premium Services subscription. We will notify you of such increase when we invoice such Premium Subscription Fees to you. If you do not agree to such fee increase, you may decline to pay such invoice, in which case your Premium Services subscription will terminate at the end of the term that you have paid for.
3.4. Non-Refundable. Unless otherwise expressly provided for in the Agreement, (i) all Premium Subscription Fees are based on Premium Service subscriptions purchased and not on actual use; and (ii) all Premium Subscription Fees paid under the Agreement are non-refundable.
3.5. Taxes. Premium Subscription Fees and other charges described herein and in any Order Form are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for Customer’s account. If we are required to collect and remit Taxes on your behalf, we will invoice you for such Taxes, and you will pay us for such amounts in
accordance with the payment terms set forth herein (including by automatic payment). Customer hereby agrees to indemnify, defend, and hold goTenna, our Affiliates (as defined below), our suppliers and hosting providers, and our and their respective officers, directors, members, managers, partners, employees, contractors, and agents harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by any such parties in connection with any Taxes and related costs, interest, and penalties paid or payable by goTenna on your behalf. For the avoidance of doubt, we will only be responsible for taxes related to our income, property, franchise, or employees. “Affiliate” means, with respect to any Party, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the specified Party. For the purposes of this definition, the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management of that entity, whether through ownership of voting securities or otherwise.
4.1. Term. The Agreement will remain in effect at all times unless and until terminate in accordance with Section 4.2 below.
4.2.1. Termination for Convenience. Provided that no Premium Services subscription is in effect for you at the time, either Party may terminate the Agreement for convenience at any time upon written notice to the other Party.
4.2.2. Premium Services Subscriptions. Either Party may terminate a Premium Services subscription upon ten (10) business days’ prior, written notice to the other Party if the other Party commits a material breach of the Agreement related to such Premium Services subscription and such breach is not cured within such ten (10) business day period. In addition, we may terminate a Premium Services subscription at any time for convenience upon thirty (30) days prior, written notice to you; provided, however, that if we terminate a Premium Services subscription for convenience, we will refund to you a pro rata portion of the Premium Subscription Fees paid by you for the then-current annual Premium Services subscription term, such portion to be pro rated based on the number of days following the effective date of such termination and the date on which the then-current annual Premium Services subscription term would have expired if the Premium Services subscription had not been terminated early.
4.3. Effect of Termination. Upon termination of the Agreement (in whole or in part) as set forth in Section 4.2, we will stop providing access to, and you will (and will cause your Authorized Users to) immediately cease all use of, the Portal, the Services and the RF Software (or, in the case of termination under Section 4.2.2, we will stop providing access to, and you will (and will cause your Authorized Users to) immediately cease all use of, the terminated Premium Services).
4.4. Survival. The following provisions will survive termination of the Agreement: Section 4.3 (“Effect of Termination”), this Section 4.4 (“Survival”), Section 5 (“Data”), Section 6 (“Ownership; Feedback”), Section 7 (“Representations and Warranties”), Section 8 (“Disclaimer”), Section 9 (“Liability”), Section 10 (“Indemnification”), Section 11 (“Confidentiality”), Section 12 (“Assignment”), Section 15 (“Governing Law; Binding Arbitration; Class Action Waiver; Equitable Relief and Forum Selection”) and Section 16 (“Miscellaneous”).
5.1. Device Data. Subject to the terms and conditions of the Agreement, you hereby grant us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the data uploaded by you to the Portal from your Devices and otherwise collected by use through the Services (collectively,
“Device Data”) only for the purposes of (a) providing our products and services to you and (b) in an anonymized, aggregated form, for the purpose of improving our products and services. Upon any termination of the Agreement, we may retain an archival copy of the Device Data kept in the normal course of business or for purposes of complying with applicable laws, rules and regulations and for use in an anonymized, aggregated form, for the purpose of improving our products and services.
6.1. As between Customer and goTenna, all right, title, and interest in and to the Services, the RP Software, any documentation and instructions related thereto, the Portal, and all modifications, improvements, adaptations, enhancements, derivatives, and translations made thereto or therefrom, and all intellectual property rights therein (collectively, “goTenna Intellectual Property”) are the exclusive property of goTenna. In addition, the trademarks, service marks, and logos of goTenna are registered and unregistered trademarks or service marks of goTenna and are deemed goTenna Intellectual Property hereunder. Except as expressly granted in the Agreement, nothing herein should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the goTenna Intellectual Property, without our prior written permission specific for each such use. As between Customer and goTenna, Customer will retain all right, title, and interest in and to the Device Data.
6.2. Feedback. You or your Authorized Users may elect to provide us with feedback, comments, and suggestions with respect to the Devices, the Portal, the Services or the RP Software (“Feedback”). You agree that we (and our successors and assigns) will at all times be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you or any Authorized Users.
- Representations and Warranties.
7.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into the Agreement; (b) the execution, delivery, and performance of the Agreement, and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (c) it has the full power, authority, and right to perform its obligations hereunder; and (d) its performance under the Agreement will comply with all applicable laws, rules and regulations.
7.2. Customer’s Representations and Warranties. In addition to the above, Customer represents and warrants to goTenna that it has the full right, power, and authority to collect, process, store, and transmit the Device Data, and to grant the licenses to the Device Data granted hereunder, including, without limitation, any information contained in the Device Data about the individual end users of the Devices (each, an “End User”), which may or may not be publically available, that can be used to identify or locate an individual, or any other information that is linked or linkable to an individual, such as first and last name, mailing address and zip code, telephone number, email address or internet protocol (IP) addresses. Without limiting the generality of the foregoing, Customer represents and warrants that it has obtained all necessary consents from its End Users to collect, process, store, transmit, and sublicense the Device Data under all applicable privacy and data protection laws, rules, and regulations.
- Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE PORTAL, THE SERVICES, THE RP SOFTWARE, AND ANY OTHER ITEMS MADE AVAILABLE BY GOTENNA HEREUNDER ARE
PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER GOTENNA (NOR OUR SUPPLIERS) MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT GOTENNA (AND OUR SUPPLIERS) MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- Liability. EXCEPT IN CONNECTION WITH CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING HEREUNDER, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER OR CUSTOMER’S INDEMNITY AND DEFENSE OBLIGATIONS HEREUNDER: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THE AGREEMENT, THE PORTAL, THE SERVICES OR THE RF SOFTWARE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THE AGREEMENT, OR RELATED TO THE PORTAL, THE SERVICES OR THE RF SOFTWARE, WILL NOT EXCEED THE GREATER OF (A) ONE HUNDRED U.S. DOLLARS ($100) OR (B) THE FEES PAID BY CUSTOMER TO GOTENNA HEREUNDER (IF ANY) FOR PREMIUM SERVICES DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE FIRST CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE AGREEMENT, THE PORTAL, THE SERVICES OR THE RF SOFTWARE, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
- Indemnification. You agree to indemnify, defend, and hold goTenna, our Affiliates, and our and their respective officers, directors, employees, contractors, and agents (“goTenna Indemnitees”) harmless from and against any and all awards, settlement payments, fines and costs of defense (including reasonable attorney’s fees) incurred by any of the goTenna Indemnitees in connection with any action, claim, proceeding or investigation by any regulatory authority or other third party, to the extent arising from or related to (a) your or any of your Authorized Users’ failure to comply with any applicable laws, regulations and rules governing your Devices’ use of the radio frequencies that you set for your Devices, or failure to maintain all required FCC and other licenses to use such radio frequencies or (b) any breach of this Agreement by you.
independently developed by the Receiving Party without reference to the Disclosing Party’s information, or was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party.
11.2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 11.1 by the Receiving Party, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party engages in, or threatens to engage in any act which violates Section 11.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 11.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
- Assignment. The Agreement may not be assigned or transferred by either Party without the prior, written consent of the other Party; provided, however, that such consent will not be required in connection with an assignment or transfer of this Agreement by either Party (a) to any of its Affiliates; or (b) in connection with any merger, consolidation, sale of equity interests, sale of all or substantially all assets, or other change of control transaction involving such Party or its business. Any attempted assignment that does not comply with the terms of this Section will be null and void.
- U.S. Government Restricted Rights. If the RF Software or any other software associated with the Devices, the Portal or the Services are to be used by an agent or agency of the U.S. Government, then such software and related documentation made available to Customer shall be “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations (“FAR”) and its successors and 48 C.F.R. 227.7202 of the Department of Defense FAR Supplement (“DFARS”) and its successors. In accordance with FAR 12.212 or DFARS 227.7202, as applicable, any such software and documentation are made available to U.S. Government end users with only those rights set forth in the Agreement.
- Export Controls. Customer will ensure that any exportation of any software associated with the Devices, the Portal or the Services by or on behalf of Customer or any of its Affiliates is in accordance with any applicable United States and foreign export control laws. We will provide Customer with such information regarding such software as may be reasonably requested by Customer in its efforts to comply with the foregoing. 15. Governing Law; Binding Arbitration; Class Action Waiver; Equitable Relief and Forum Selection. 15.1. Governing Law. The Agreement, and any and all disputes directly or indirectly arising out of or relating to the Agreement, will be governed by and construed in accordance with the laws of the State of New York, without reference to the choice of law rules thereof. 15.2. Binding Arbitration. In the event of a dispute arising under or relating to this Agreement, the RP Software, the Portal, the Services and/or the Devices (each, a “Dispute”), either Party may elect to finally and exclusively resolve the dispute by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other Party. IF EITHER PARTY CHOOSES ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the Parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in
accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each Party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration shall take place in Kings County, New York. The Parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The Parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 15.4 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
15.3. Class Action Waiver. You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
15.4. Equitable Relief. You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and/or confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above.
15.5. Forum Selection. To the extent Section 15.2 does not apply (e.g., because neither Party elects to have a Dispute resolved by binding arbitration pursuant to Section 15.2, or in cases where Section 15.4 applies), then each of the Parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Kings County, New York for such Disputes, and waives any objections to the laying of venue in such courts.