Terms & Conditions
Lucid Design Group, a division of Acuity Brands Technology Services, Inc.
APPLICATION SERVICES AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING ANY PORTION OF THE SERVICE, OR BY PAYING FOR THE SERVICE BY AN MEANS OFFERED BY LUCID, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY OTHER WRITTEN NEGOTIATED CONTRACT SIGNED BY YOU.
THE TERMS AND CONDITIONS OF THIS AGREEMENT APPLY TO ANY AND ALL USE OF THE SERVICE BY YOU OR OTHERS IN YOUR ORGANIZATION, AND YOU AGREE TO BE BOUND BY THIS AGREEMENT REGARDLESS OF THE TYPE OF USE OF THE SERVICE BY YOU OR YOUR ORGANIZATION.
This Agreement provides that all disputes between you and Lucid will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action. Please review Exhibit A (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with Lucid.
This agreement, as amended from time to time (the "Agreement") is between you ("you", "your", "Client") and Lucid Design Group, a division of Acuity Brands Technology Services, Inc.
1. DEFINITIONS. As used in this Agreement:
“You”, “Subscriber”, and “Your” means your organization and anyone in your organization that uses Our software or Our services, including the person signing this Agreement.
"Lucid", "the Company", and "Our" means Lucid Design Group, a division of Acuity Brands Technology Services, Inc. and its assigns.
"Licensed Software" means the web-based software programs and any modified, updated or enhanced versions of such programs that Lucid in its sole discretion may provide to You pursuant to this Agreement or under a separate support agreement. Licensed Software specifically excludes Subscriber’s Materials.
“Service” and “Services” means the License Software and any and all of Lucid’s automated information collection services licensed to You that operates continuously over the internet to access data from Your facilities, store this information over time on server(s) owned and/or managed by Lucid, and enable data access over the internet through websites or public kiosk displays.
“Meter Data” means data collected from the Metered Points and includes manually entered or uploaded data.
“Metered Points” means Subscriber’s devices such as but not limited to building automation systems, energy management systems, programmable logic computers, databases and utility meters.
“Effective Date” means the date that the Lucid Order Form was created and it remains in effect until the Expiration Date.
“Expiration Date” means the date that the Lucid Order Form expires, after which its terms are no longer valid.
"Documentation" means the description of software features and capabilities as described on Lucid’s website, www.luciddesigngroup.com, as of the Effective Date.
"Intellectual Property Rights" means all United States copyrights, trademarks, service marks, trade secrets, patents, patent applications, and all other proprietary rights and equivalent rights throughout the world.
“Service Period” means the license term (“Term” or “term”)purchased by Subscriber as referenced in a valid price quotation from Lucid.
Service Start Date means the date on which service begins.
Service End Date means the last day of the service term.
"Subscriber’s Materials" (or simply “Materials”) means the images, artwork, architectural renderings, or other electronic material of a visual nature provided by You to Lucid for display in connection with the Licensed Software.
2. PROPRIETARY RIGHTS.
2.1 License Grant. Subject to the terms and conditions of this Agreement, including the payment of fees as set forth in Section 4, Lucid will provide to You access to, and use of, the Licensed Software and the Service on a nonexclusive, nontransferable (except as permitted in Section 11.5), revocable, nonsublicensable basis throughout the Service Period. Promptly following the Service Start Date, Lucid will deliver to You user account details and/or URLs to access the Service.
2.2 Additional Functionality. During the Service Period, Lucid may offer additional functionality and/or the ability to use the Service with other third party applications (collectively the “Applications”). If you elect to subscribe to such Applications, Your license grant will be hereby amended to include such Applications in the license grant in Section 2.1 above. Applications may allow the use or disclosure of your information, as further set forth in each application description.
2.3 Use of Data. Subscriber hereby grants Lucid a non-exclusive, perpetual, irrevocable, transferable, worldwide, royalty-free license to Subscriber’s data gathered by the Service, including the right to sublicense data on an anonymized basis.
2.4 Subscriber’s Materials. You hereby grant a non-exclusive, worldwide, fully sublicensable license to Lucid to copy, display and modify (as necessary for compatibility with the Service) Your Materials. You warrant that Your Materials are owned by You or are properly licensed from the Materials’ rightful owner(s) for use in association with the Licensed Software and Service. By providing such Materials to Lucid, You warrant that all Materials do not infringe any third party’s proprietary rights (including Intellectual Property Rights) and will not cause Lucid to violate any law or regulation.
2.5 Proprietary Rights. The Service and Licensed Software, including its underlying software and structure, and all worldwide Intellectual Property Rights therein are the exclusive property of Lucid. Except as may be expressly provided in this Agreement, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any of Lucid’s existing or future intellectual property, including patents. Subscriber will not remove, alter, or obscure any proprietary notices (including copyright notices) of Lucid.
2.6 Publicity. Unless otherwise specified and mutually agreed, Lucid may use Subscriber’s name, organization logo, marks (including marks on Subscriber’s properties) to identify Subscriber as a Lucid customer on Lucid’s website and in other marketing materials.
3. UPDATES, UPGRADES AND NEW PRODUCTS.
Lucid may update the Services and the hardware and software used to provide the Service from time to time. Lucid shall include in the Services provided hereunder any such updates that Lucid generally provides to its customers free of charge; however, nothing in this Agreement will obligate Lucid to provide Services that include any upgrade (i.e. revisions to the Services that include new features or substantial increases in functionality), unless such upgrade is described in a new purchase order and You have paid the applicable license fees for such upgrade.
4. FEES AND PAYMENT.
You will pay, within 30 days of receipt of invoice from Lucid, all fees or charges accruing to Your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You may only use the Service and Licensed Software if you have paid all license fees due to Lucid (“Fees”). All payments must be made in U.S. dollars and are non-refundable. The Fees exclude all applicable sales, use and other taxes and you are responsible for payment of all such taxes (other than taxes based on Lucid’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees.
Lucid reserves the right to modify its fees and charges and to introduce new charges upon renewal of the Agreement. Fees for other services will be charged on an as quoted basis. All pricing terms are confidential, and You agree not to disclose them to any third party.
Any portion of the fees that is not paid when due will accrue interest at twelve percent (12%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. IF ANY PAYMENT IS GREATER THAN 30 DAYS PAST DUE, YOUR SERVICE AND THIS AGREEMENT MAY BE TERMINATED AT LUCID’S DISCRETION.
5. INDEPENDENT CONTRACTOR STATUS.
This Agreement will not be construed to create a relationship between the parties of agent, servant, employee, partnership, joint venture or association. Lucid will perform the services hereunder as an independent contractor, retaining complete control over its personnel and operation. Neither Lucid nor its employees will be, in any sense, Your employees or agents. You will be responsible for paying all required state and federal taxes, including applicable sales and use taxes. Furthermore, You will pay all shipping charges (billed at cost) and agree that all hardware will be shipped FOB shipping point. Additional insurance for shipping is available to You at additional cost. Any shipping or other terms listed on a purchase order will be of no force and effect unless expressly agreed to in writing by Lucid.
6. YOUR OBLIGATIONS.
6.1 Non-transfer. The Services are for use by You and Your authorized end users only, and only for Your internal business purposes, and not for resale, distribution, assignment, transfer, rent or loan to any third party, including any of Your parent or subsidiary entities unless expressly authorized by Lucid.
6.2 Other Restrictions on Use. BY USING THE SERVICES YOU AGREE NOT TO:
(a) use the Services for any illegal purpose or in violation of any local, state, national, or international law;
(b) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party Intellectual Property Right;
(c) post, upload, or distribute any Subscriber Materials or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
(d) interfere with security-related features of the Services, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Services except to the extent that the activity is expressly permitted by applicable law;
(e) interfere with the operation of the Services or any user’s enjoyment of the Services, including by uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code or interfering with or disrupting any network, equipment, or server connected to or used to provide the Services, or violating any regulation, policy, or procedure of any such network, equipment, or server; or
(f) attempt to do any of the acts described in this Section 6.2, or assist or permit any person in engaging in any of the acts described in this Section 6.2.
7.1 Performance. For the period of time described below, Lucid warrants that the Service and Licensed Software, when used as permitted under this Agreement and in accordance with the Documentation, will operate substantially as described in the Documentation. Lucid, on behalf of itself and its licensors, does not warrant that Your use of the Service or Licensed Software will be error free or uninterrupted. Lucid is not liable whatsoever for interruptions in the Service stemming from Your computers, network hardware, building automation software, internet connectivity, or other elements owned or controlled by You or others that are reasonably required for the Service or Licensed Software to operate. Lucid will, at its own expense and as its sole obligation and as Your sole and exclusive remedy for any breach of this warranty, use commercially reasonable efforts to maintain maximum uptime throughout the term of this Agreement.
7.2 Disclaimers. EXCEPT AS TO THE EXPRESS WARRANTIES IN THIS SECTION 7, THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. LUCID DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICES, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
8. LIABILITY LIMITATION.
8.1 IN NO EVENT WILL LUCID BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LUCID HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
8.2 THE AGGREGATE LIABILITY OF LUCID TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICES OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT YOU HAVE PAID FOR THE LICENSED SOFTWARE IN THE 12 MONTHS PRIOR TO THE EVENT(S) OR CIRCUMSTANCES GIVING RISE TO CLAIM.
8.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8.4 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You are responsible for Your use of the Service, and You will defend and indemnify Lucid and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Lucid Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) Your access to, use of, or alleged use of, the Service; (b) Your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) Your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between You and any third party. Lucid reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You (without limiting Your indemnification obligations with respect to that matter), and in that case, You agree to cooperate with Lucid’s defense of that claim.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement will begin on the Service Start Date in the Lucid Order Form and will continue in force for the Service Period (the “Term”). Thereafter this Agreement will renew for a period of one year or for such other term as otherwise mutually agreed upon in writing by the parties (“Renewal Term”), unless either party gives the other party not fewer than thirty (30) days notice of its intent not to renew, or unless terminated under the terms contained within this Agreement.
10.2 Termination. Subscriber may terminate this Agreement at any time, with or without cause, upon written notice to Lucid. Lucid may terminate this Agreement, effective immediately upon written notice to Subscriber, if: (a) Subscriber fails to pay any portion of the Fees when due within thirty (30) days after receiving written notice from Lucid that payment is due; or (b) Subscriber breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from Lucid. Lucid may also immediately terminate this Agreement for Subscriber’s breach of Section 6, upon written notice.
10.3 Effects of Termination. Upon termination of this Agreement for any reason, any amounts owed to Lucid under this Agreement before such termination will be immediately due and payable, all rights granted to Subscriber in this Agreement will immediately cease to exist, and all Services and Licensed Software provided by Lucid may cease functioning, the precise timing of which will be determined at Lucid’s sole discretion. If Subscriber elects to terminate this Agreement, no portion of the Fees will be refunded or excused.
10.4 Survival. Sections 1 ("Definitions"), Section 2 ("Proprietary Rights"), Section 6 (“Your Obligations”), 7.2 ("Disclaimers"), 8 ("Liability Limitation"), 9 (“Indemnity”), 10.3 ("Effects of Termination"), 11 ("General") and Exhibit A will survive termination of this Agreement for any reason.
11.1 Support. Lucid is not required to provide any support services with respect to Subscriber’s property, including without limitation computers, building automation systems, network connections, routers, firewalls, or software products that operate on Subscriber’s computers.
11.2 Compliance with Laws. Subscriber will comply with all applicable laws and regulations in its use of the Service and Licensed Software.
11.3 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing via email and will be effective one (1) business day after sending by email. Lucid will use the email address provided by Subscriber upon entering into this Agreement. It is Subscriber’s duty to promptly notify Lucid of any change in Subscriber’s email at the following email address firstname.lastname@example.org.
11.4 Governing Law. This Agreement will be governed by the laws of the State of California, without giving effect to its rules regarding conflicts of law. This Agreement will not be governed by, and will be construed without regard to, the United Nations Convention on the International Sales of Goods. Each party hereby irrevocably submits to the personal and exclusive jurisdiction of the state courts and federal courts located within Alameda County, California for the purpose of litigating any dispute, but subject in all cases to the provisions in Exhibit A.
11.5 Assignment. Neither party may subcontract its duties or obligations in this Agreement to a third party without the other party’s prior written consent; however, Lucid may assign this Agreement in connection with merger, reincorporation, reorganization or sale of all or substantially all of the assets and/or shares of Lucid.
11.6 Feedback. If You choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Services (“Feedback”), then you hereby grant Lucid an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
11.7 Waiver. All waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.8 Severability. If any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remaining provisions will not be affected and will continue in full force and effect.
11.9 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word "including" means "including but not limited to".
11.10 Force Majeure. Except for Subscriber’s obligations to pay Lucid hereunder, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.
11.11 Entire Agreement. This Agreement constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the Service and Licensed Software and supersedes all prior or contemporaneous agreements, understandings, and communication between the parties, whether written or oral. The terms and conditions listed on any purchase order that conflict with this Agreement are null and void and will have no binding effect. This Agreement may be amended only by a written document signed by both parties.
11.12 Note to California Subscribers: Pursuant to Assembly Bill 1274 (Title 1.81.4, California Civil Code Section 1798.98), if Meter Data include “data” as defined therein (“a customer’s electrical or natural gas usage that is made available to the business as part of an advanced metering infrastructure provided by an electrical corporation, a gas corporation, or a local publicly owned electric utility, and includes the name, account number, or physical address of the customer”) such as through Green Button, you are hereby notified that such Meter Data may be shared with any of Lucid’s contractors or affiliates (collectively “Affiliate”) provided that such Affiliate will be required under contract to maintain reasonable security procedures and protect the Metered Points from unauthorized access, destruction, use, modification or disclosure. Any such use will be for the improvement of the Licensed Software. You hereby consent to such sharing and use of data as described above.
Generally. In the interest of resolving disputes between you and Lucid in the most expedient and cost effective manner, you and Lucid agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND LUCID ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 1 of this Exhibit A, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Lucid will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Lucid.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Lucid’s address for Notice is: 304 12th St #3c, Oakland, CA 94607. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Lucid may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Lucid must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If you are an individual (and not a corporate entity) and the dispute is finally resolved through arbitration in your favor, Lucid will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Lucid in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.
Fees. If you are an individual (and not a corporate entity) and you commence arbitration in accordance with this Agreement, Lucid will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Alameda County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Lucid for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND LUCID AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Lucid agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications to this Arbitration Provision. If Lucid makes any future change to this arbitration provision, other than a change to Lucid’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Lucid’s address for Notice, in which case your account with Lucid will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 6 of this Exhibit A is found to be unenforceable or if the entirety of this Exhibit A is found to be unenforceable, then the entirety of this Exhibit A will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 11.4 will govern any action arising out of or related to this Agreement.