The following GivingDNA™ Platform Terms of Service (the “Agreement”), which may be modified from time to time by Pursuant at its sole discretion, are incorporated in and made part of any Purchase Order (as defined below). Each of Pursuant and Customer may be referred to herein individually as a “Party” or collectively as “Parties.” For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
(a) “Administrative Portal” means an online interface where Customer can interact with the GivingDNA™ platform. (b) “Affiliate” means, with respect to a Party, any corporation or legal entity which is controlled by, controls, or is under common control with such Party, where “control” means direct or indirect ownership of more than fifty percent (50%) of the voting shares or ownership interest of such corporation or legal entity (but only as long as such corporation or legal entity meets these requirements). (c) “Documentation” means the operating instructions, user manuals, product specifications, “read-me” files, and other documentation that Pursuant makes available to Customer or its Affiliates in hard copy or electronic form for the GivingDNA™ Platform, and any modified, updated, or enhanced versions of such documentation. (d) “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction. (e) “Services” means, collectively, the GivingDNA™ Platform or any services provided by Pursuant. (f) “GivingDNA™ Platform” means the Pursuant marketing intelligence software as a service platform (in object code format only) which Pursuant makes available to Customer over the Internet under this Agreement, which platform includes, without limitation, application programming interfaces, software development kits, software frameworks and libraries, and any and all modified, updated, or enhanced versions of such platform that Pursuant may provide Customer or its Affiliates under this Agreement and if applicable, the Purchase Order. (g) “ Constituent and Giving data” means data an Customer’s donor’s name, email address and/or physical address and any other associated constituent data and giving data means transaction ID, amount, date of transaction and any other associated giving data provided either via a third-party integration or uploaded directly to the GivingDNA™ Platform (h) “Purchase Order” means a mutually agreed upon statement of work, Software-as-a-Service agreement or any other agreement for use of the GivingDNA™ Platform, product order or service order form executed by a duly authorized representative of each party which, at a minimum, sets forth the Services to be performed by Pursuant and the fees to be paid by Customer. (I) “Customer Marks” means the Customer name, logos, symbols, emblems, designs, and identifications.
2. GivingDNA™ Platform
Subject to Customer’s compliance with the terms and conditions of this Agreement (including Customer’s payment of the applicable fees), Pursuant will provide Customer access, over the Internet, to the GivingDNA™ Platform as described in this agreement.
3. Licenses; Restrictions; Ownership; Reservation of Rights
3.1 License to GivingDNA™ Platform Subject to the terms and conditions of this Agreement, Pursuant hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable right and license to (a) access and use the GivingDNA™ Platform during the Term solely for Customer’s internal use.
Customer acknowledges that GivingDNA™ Platform and Documentation embodies, contains, and constitutes valuable trade secrets of Pursuant. Accordingly, Customer agrees that it will not, and it will not permit any third party to, (a) access or use the GivingDNA™ Platform except to the extent otherwise expressly permitted in this Agreement or an applicable Purchase Order; (b) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or Customer) of the GivingDNA™ Platform; (c) modify, adapt, translate or create derivative works based on the GivingDNA™ Platform or Documentation made available hereunder; and (d) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the GivingDNA™ Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing, or (e) distribute, license, sublicense, assign, transfer or otherwise make available to any third party the GivingDNA™ Platform the or Documentation, except to the extent otherwise expressly permitted in this Agreement or an applicable Purchase Order. Customer agrees not to remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Pursuant or its suppliers on or within the GivingDNA™ Platform or Documentation. Pursuant reserves all rights, title and interest in and to the GivingDNA™ Platform not expressly granted to Customer in Section 3 and no implied licenses are granted by Pursuant to Customer.
3.3 Ownership by Pursuant
Pursuant and its suppliers and licensors retain all right, title and interest in and to all Intellectual Property Rights in the GivingDNA™ Platform, Documentation, and any and all modifications, updates, and enhancements to the foregoing items, excluding any materials owned by Customer under this Agreement.
3.4 Ownership by Customer
Customer retains all right, title and interest, including all Intellectual Property Rights, in and to Customer Confidential Information, Customer Constituent and Giving data, and Customer Content.
4. Fees and Payment
4.1 Payment Terms
Payment terms will be specified in the “Subscription” or “Fees” section of the GivingDNA™ Platform or if applicable a Purchase Order. Customer is responsible for providing complete and accurate billing and contact information to Pursuant and notifying Pursuant promptly of any changes to such information accordance with the Payment Terms.
4.2 Invoicing and Payment
In accordance with the Payment Terms, (a) Pursuant will invoice Customer for its use of the Services, and Customer will pay Pursuant the invoiced amounts by the applicable payment date (such date, the “Customer Payment Date”), and (b) Pursuant will pay Customer any amounts owed under this Agreement by the applicable payment date (net of any fees owed to third parties) (such date, the “Pursuant Payment Date”). All payments made to either Party shall be in U.S. Dollars.
4.3 Additional Payment Rules
If Customer has not fully paid all amounts invoiced under this Agreement and the applicable Purchase Order by the applicable Customer Payment Date (except for amounts being disputed reasonably and in good faith in accordance with Section 4.5 below), Pursuant may set off such amounts against payments owed by Pursuant to Customer under this Agreement and the applicable Purchase Order. Unless otherwise set forth on a Purchase Order, no fees owed to Pursuant will be prorated if the Agreement is terminated prior to the end of a payment period.
The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Pursuant’s income and payroll related taxes), and any related penalties and interest, arising from the payment of the fees or the access or use of the GivingDNA™ Platform by Customer, or performance of any Services by Pursuant.
4.5 Payment Disputes
If Customer disputes any amounts invoiced or owed by Pursuant hereunder, Customer will, within thirty (30) days following its receipt of such invoice (“Payment Dispute Notification Period”), provide Pursuant a written notice describing in reasonable detail what amounts are disputed and the reasons for such dispute (“Payment Dispute Notice”). The Parties’ representatives will use best efforts to meet (in person or by phone) within ten (10) days following Pursuant’s receipt of the Payment Dispute Notice and the Parties shall use good faith efforts to resolve the dispute. If the dispute is not resolved within forty-five (45) days following Customer’s receipt of the disputed invoice, Pursuant may upon written notice suspend any or all
Services hereunder or terminate this Agreement immediately for cause without any cure period. Each Party will pay the other Party any formerly disputed amounts owed to such Party to the extent resolved as provided herein, promptly following such resolution. If Pursuant does not receive a Payment Dispute Notice during the Payment Dispute Notification Period for a given invoice, such invoice will be deemed undisputed and payable by Customer to Pursuant within thirty (30) days following Customer’s receipt of such invoice. Customer will pay Pursuant all undisputed amounts on any disputed invoice within thirty (30) days following Customer’s receipt of such invoice.
5. Term and Termination
As between Customer and Pursuant, this Agreement is effective as of the effective date set forth in the applicable “Subscription Term” or if applicable Purchase Order and shall continue in effect until terminated as set forth below. The Subscription term is either monthly from the day the Customer makes payment or yearly. The Customer will automatically renew for the same length of the previous subscription term unless Customer indicates its intent to terminate the Agreement with 90 (ninety) days written notice to Pursuant prior to the end of the term.
5.2 Termination for Cause
Either party may terminate this Agreement or an applicable Purchase Order by giving written notice to the other party if such other party materially breaches any provision of this Agreement or such Purchase Order, such termination to be effective (a) on the thirty-first (31st) day following the date on such notice, if the breach is capable of being cured and is not cured within thirty (30) days following the date on such notice or (b) immediately, if the breach is not capable of cure.
5.3 Effects of Termination
The expiration or termination of a Purchase Order shall not affect any other Purchase Order hereunder unless the Agreement expires or is terminated in whole. Upon termination of this Agreement:
(A) EACH PARTY SHALL RETURN OR DESTROY ALL CONFIDENTIAL INFORMATION AND ALL OTHER PAPERS, MATERIALS AND PROPERTIES OF THE OTHER PARTY RELATED TO THE TERMINATING AGREEMENT IN ITS POSSESSION OR CONTROL;
(B) EACH PARTY SHALL PAY ALL FEES AND EXPENSES WHICH HAVE ACCRUED UNDER THIS AGREEMENT PRIOR TO ANY TERMINATION OR EXPIRATION OF AN APPLICABLE PURCHASE ORDER AND/OR THIS AGREEMENT;
All rights or obligations will immediately terminate and be of no further force or effect, except that the following Sections will survive expiration or termination of this Agreement or any Purchase Order hereunder for any reason: 1 (Definitions), 3.2 (Restrictions), 3.3 (Ownership by Pursuant), 3.4 (Ownership by Customer), 4 (Fees and Payment) (to the extent any amounts are owed as of termination or expiration), 5.3 (Effects of Termination), 6 (Confidential Information), 7 (Indemnification), 9.3 (Disclaimer), 10 (Limitation of Liability), 11 (Notices), and 13 (Miscellaneous). Any Sections of Purchase Orders that are expressly specified in such Purchase Orders to survive termination or expiration of the applicable Purchase Order shall also survive any termination or expiration of this Agreement or that Purchase Order.
6. Confidential Information
6.1 As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, the terms of this Agreement, and any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Pursuant’s Confidential Information includes, without limitation, the GivingDNA™ Platform. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder.
6.2 Each Party will use reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose the terms of this Agreement, in whole or in part (a) to its owners, employees, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a Party, sources of debt financing, acquirers and/or subcontractors who have a need to know, and other parties who are required to receive such information in order to effectuate this Agreement, and in each case who are subject to non-disclosure agreements and legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party shall provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.
7.1 Indemnification by Pursuant
Pursuant shall indemnify, defend and hold Customer and its parent, affiliates, subsidiaries, officers, directors, agents, and employees (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any Intellectual Property infringement that arises out of Customer’s use of the GivingDNA™ Platform (except for claims for which Pursuant is entitled to indemnification under Section 7.2, in which case Pursuant shall have no indemnification obligations with respect to such claim). Pursuant shall further indemnify, defend and hold the Customer Indemnified Parties harmless from Liabilities arising out of Pursuant’s fraud, willful misconduct or gross negligence. Pursuant shall have no liability or obligation under this Section 7.1 with respect to any Liability if such Liability is caused in whole or in part by (w) Customer Content, Customer Property, Customer Marks, or any data or material supplied by Customer, (x) modification of the GivingDNA™ Platform by any party other than Pursuant without Pursuant’s express consent; (y) the combination, operation, or use of the GivingDNA™ Platform with other product(s), data or services provided by Customer, where the GivingDNA™ Platform would not by itself be infringing; or (z) it is based upon the use of a superseded release of the GivingDNA™ Platform, if the claim would have been avoided by the use of the current release where it is not Pursuant’s responsibility to upgrade the GivingDNA™ Platform. If the use of the GivingDNA™ Platform by Customer has become, or in Pursuant’s opinion is likely to become, the subject of any claim or infringement, Pursuant may at its option and expense (a) procure for Customer the right to continue using the GivingDNA™ Platform as set forth hereunder; (b) replace or modify the GivingDNA™ Platform to make it non-infringing so long as the GivingDNA™ Platform has similar functionality; (c) substitute a similar software for the GivingDNA™ Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement. This Section 7.1 states Pursuant’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
7.2 Indemnification by Customer
7.3 Indemnification Procedure
If an Customer Indemnified Party or a Pursuant Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 7.1 or Section 7.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
8. Data Storage
8.1 The data and other material supplied directly to Pursuant by Customer in the course of using the GivingDNA™ Platform and all results obtained from Pursuant’s analysis of or calculations concerning such data (excluding any formats or layouts of such results that are native to the GivingDNA™ Platform)
(“Customer Data”) will be owned by Customer including the Constituent and Giving data.
9. Representations, Warranties; Disclaimer
9.1 Representations and Warranties
Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
9.2 Customer Agreements
Customer will (a) be solely responsible for all use of the GivingDNA™ Platform and Services; (b) not violate, or use the Services in a way that violates (or causes Pursuant to violate) any applicable law, rule or regulation or third party right; (c) have obtained, and does hereby grant to Pursuant, all rights in and to Customer Content and Customer Property reasonably required for Pursuant to deliver the Services.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH REGARD TO THIS AGREEMENT OR THE SOFTWARE, SERVICES, DOCUMENTATION OR OTHER MATERIALS PROVIDED BY PURSUANT, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. PURSUANT DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF THEIR USE WILL BE CORRECT, ACCURATE, OR RELIABLE. Customer ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES AND THAT NO WARRANTIES ARE MADE BY ANY OF PURSUANT’S SUPPLIERS.
10. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 3, AND/OR (B) CUSTOMER’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF OR DAMAGE TO DATA, COST OF COVER, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT OR PURSUANT’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE GIVINGDNA™ PLATFORM, SERVICES, DOCUMENTATION OR OTHER MATERIALS PROVIDED BY PURSUANT, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 3, (B) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (C) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, AND (D) CUSTOMER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR ANY AND ALL DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, SERVICES, DOCUMENTATION AND OTHER MATERIALS PROVIDED BY PURSUANT, UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY, EXCEED THE TOTAL FEES PAID OR PAYABLE TO PURSUANT BY CUSTOMER UNDER THE PURCHASE ORDER CORRESPONDING TO THE GIVINGDNA™ PLATFORM SERVICE IN RESPECT OF WHICH THE LIABILITY AROSE AND LIMITED TO THE AMOUNT OF SUCH FEE CORRESPONDING TO THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE FIRST CLAIM GIVING RISE TO THE LIABILITY AROSE. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT.
Any notice or other communication required or permitted under this Agreement shall be given in writing and shall be conclusively deemed effectively given upon personal delivery or delivery by courier, or on the first business day after transmission if sent by confirmed facsimile transmission or electronic mail transmission, or five (5) business days after deposit in the United States first class mail, by registered or certified mail, return receipt requested, postage prepaid, addressed to the party’s address set forth in the
Purchase Order or at such other address as each party may designate by ten (10) business days’ advance written notice to the other party in accordance with this Section.
12. No Fundraising Counsel or Professional Fundraising Services.
Unless provided through a Consulting Services Agreement, the Parties agree and understand that Pursuant is providing a software platform and related technology, marketing and advertising services for use by Customer. Nothing contained herein shall be deemed the provision of, and Pursuant does not provide, fundraising counsel or professional fundraising services as those terms are defined under state charitable solicitation laws under this agreement. Pursuant shall at no time be soliciting contributions for or on behalf of the Customer or retaining any person or entity to do so, nor shall it be providing advice, counsel or management services in connection with the Customer’s own fundraising appeals or have custody or control of contributions made to the Customer.
Customer may not remove or export from the United States or allow the export or re-export of the GivingDNA™ Platform, or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither Party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other Party’s prior written consent; provided, however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reCustomer or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section 13 shall be null and void. Both Parties agree that this Agreement and each Purchase Order is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Pursuant shall be entitled to injunctive relief in the event Customer uses the GivingDNA™ Platform in violation of the limited license granted herein or uses the GivingDNA™ Platform in any way not expressly permitted by this Agreement. Each Party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party shall give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Dallas, Texas and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the GivingDNA™ Platform will cause irreparable harm and injury to Pursuant for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that Pursuant shall be entitled to injunctive relief in the event Customer uses the GivingDNA™ Platform in violation of the limited license granted herein or uses the GivingDNA™ Platform in any way not expressly permitted by this Agreement.