Flywheel Kinetics – General Terms and Conditions

Thank you for your interest in Flywheel Kinetics’ services (“Flywheel”). These General Terms and Conditions, along with any other terms referenced herein (collectively, the “Agreement”), governs your use of Flywheel’s services presented in connection with this Agreement. The applicable Privacy Policy is available at [link], as updated from time to time is incorporated by reference into this Agreement.

By accessing or using Flywheel’s Services[, by electronically accepting this Agreement via Flywheel’s online services], or by mutually agreeing to an Order Form and which Order Form references this Agreement, Customer hereby accepts this Agreement as it relates to Customer’s use of the Services. If Customer does not agree to the terms of this Agreement (or you do not have authority to enter into this Agreement on behalf of Customer), then Customer may not purchase or use any Flywheel Services. This Agreement is effective as of the date Customer first accepted this Agreement (the “Effective Date”).

1. Definitions. Capitalized terms not otherwise defined herein shall have the meanings set forth below:
   • “Customer Materials” means the data and information, including without limitation any Intellectual Property therein, that Customer makes available to Flywheel during Flywheel’s performance of, or Customer’s use, of the Services.
   • “Confidential Information" means information, whether reduced to writing or not, provided by one Party to the other that or observed by a Party on the other Party’s premises, and which is identified as confidential or with other similar designation(s), or would otherwise reasonably be understood to be confidential under the circumstances. Confidential Information includes but is not limited to data (technical and non-technical), trade secrets, formulas, patterns, compilations (including compilations of customer information), programs (including models), devices, methods (including design methods), techniques, drawings (including equipment drawings), processes, financial information (including sales forecasts), pricing, lists of actual or potential customers or suppliers (including identifying information about those customers), operational information, planning or strategy information, research and development information, information about existing and future products, and information about personnel matters of a Party. Confidential Information also includes information disclosed by a third party on behalf of a Party that otherwise meets the foregoing definition and all information about this Agreement, including its existence and the fact that negotiations are taking or have taken place.
   • “Deliverable” means any physical or intangible thing, including Documentation which Flywheel is obligated to supply pursuant to an Order Form.
   • “Documentation” means any user manuals, guides, drawings, descriptions, designs, or other documentation that Flywheel may develop as part of the Services.
   • “Intellectual Property” means any and all of the following, whether protected, created or arising under the laws of the United States or any other jurisdiction in the world: patents (including, but not limited to, any applications, extensions, divisions, continuations, continuations in part, reexaminations, reissues, and renewals related thereto), copyrights, trademarks and service marks (including, but not limited to, applications, registrations, and renewals related thereto), trade dress, trade names, trade secrets, know-how, and any other proprietary rights of any nature, by whatever name or term known or however designated.
   • “Order Form” means a document which is executed by both Parties which (a) consents by its terms to be governed by this Agreement, and (b) details Customer’s specific engagement of Flywheel for Services.
   • “Personnel” means the employees, agents, consultants, and representatives of Flywheel who are fulfilling Flywheel’s obligations under this Agreement.
   • “Services” means the activities as set forth in the Order Form, whether performed by Flywheel or a third party at Flywheel’s direction. Training, Updates, and provision of all required Documentation shall be considered part of the Services.
   • “Services Term” means the term for which Flywheel agrees to provide the Services, as set forth in the Order Form. If no Services Term is identified in an Order Form, the Services Term shall be [one (1) year].
   • “Training” means all operator and technical training relating to the products performed pursuant to the Order Form.
   • “Work” means all technical and/or business information, data, documents and works of authorship of whatever kind, whether physical or electronic form.

2. Services.
   • Services Scope. During the Services Term Flywheel shall perform the Services in accordance with the terms and conditions of this Agreement and any specifications set forth in the Order Form. Flywheel shall provide appropriate Documentation and all Deliverables to enable Customer to use and maintain such Deliverable as intended.
   • Training. Flywheel will perform the Training as set forth in any Order Form. All Training materials are for Customer’s own internal use and are provided solely to assist Customer in learning how to use the Hubspot Platform. After the Training provided by Flywheel, Customer will be responsible for providing training to its own personnel, subject to any troubleshooting support by Flywheel. Additional training may be purchased at Flywheel’s then standard rates upon agreement of Flywheel and Customer.
   • Support. Flywheel will provide commercially reasonable support to help Customer use and maintain Products as set forth in the SOW. Flywheel shall also use commercially reasonable efforts to provide service desk support during Flywheel’s normal business hours, subject to Flywheel-recognized holidays.
   • Ordering Services. Each duly executed Order Form or the provision of any additional Services beyond those set forth in the Order Form shall become a part of this Agreement and shall be subject to all the terms and conditions set forth in this Agreement. No terms or conditions in any Order Form or any transaction document (e.g., a purchase order or invoice), other than those typically appearing in such a document (e.g., description of services, price, schedule, location, and specifications) which are additional or conflicting to those set forth in this Agreement shall apply, provided however that conflicting terms explicitly identified as controlling in a fully executed Order Form shall control for the purposes of that Order Form only.
   • Personnel. Whenever Flywheel’s Personnel are present on Customer’s premises, Flywheel shall cause all Personnel to comply with all reasonable instructions, directions and requests, and all standard rules and regulations generally applicable to such Customer premises, and to otherwise conduct themselves in a businesslike manner.
   • Access. To the extent that Customer grants Flywheel access to Customer’s physical facilities, network, or computer equipment for the provision of the Services, Flywheel shall only use such access to perform the Services for Customer and shall only do so in accordance with any rules posted therein or written policies provided to Flywheel by Customer.
3. Customer Materials.
   • License to Customer Materials. Customer hereby grants to Flywheel a limited, revocable, royalty-free, and non-exclusive license to combine the Customer Materials with other works and to use, transmit, distribute, reproduce, modify, edit, adapt, translate and reformat Customer Materials in any manner, in whole or in part, to provide and troubleshoot the Services. The forgoing license shall only continue for the period necessary for Flywheel to perform the Services and shall automatically expire upon completion of such Services, or if sooner, upon the expiration of the applicable Order Form. Flywheel agrees to only use the Customer Materials for providing and troubleshooting the Services and agrees not to use, transmit, distribute, reproduce, modify, edit, adapt, translate or reformat Customer Materials in any manner, in whole or in part for any other reason.
   • Analytics; Aggregation. Flywheel may de-identify data obtained by Customer Materials in a de-identified manner, which may be aggregated with other de-identified data from a sufficient number of other customers in a manner reasonably designed to prevent Flywheel or others from using the any such Customer Materials to analyze the particular characteristics of Customer’s business. Customer grants Flywheel a non-exclusive, worldwide, paid-up, perpetual and irrevocable right and license to: (a) extract, copy, aggregate, process and create derivative works of Customer Materials to derive, or add to, analytics databases; (b) employ data analytics for purposes of offering Services ; and (c) prepare derivative works, use, execute, reproduce, display, perform, transfer, distribute, and sublicense the aggregated data and such derivative works.
4. Ownership.
   • Generally. Title to all Intellectual Property rights, including but not limited to patent, trademark, copyright, design, and trade secrets right in (and title to all copies of and all media bearing) the Services, including, but not limited to, any features requested and or designed mutually with Customer, and the program concepts contained in the Services is retained by Flywheel or its applicable third-party licensors. For the avoidance of doubt and without limitation, and other than the licenses granted hereunder, there is no transfer of title or of any proprietary rights or of any intellectual property rights to Customer under this Agreement. Unless specifically stated, in writing, by Flywheel to the contrary, Customer has no right to use Flywheel’s name, trademarks, or any goodwill now or hereafter associated therewith, all of which is the sole property of and will inure exclusively to the benefit of Flywheel. Client will not knowingly use the Services in a manner that violates any third-party intellectual property, contractual or other proprietary rights.
   • Flywheel Know-How. This Agreement does not restrict or deprive Flywheel of any of its rights or proprietary interests in any materials, knowledge, processes, methodologies, formats, patents or other types of Intellectual Property that are possessed and owned by Flywheel prior to the time that it begins to provide Services under this Agreement or that Flywheel develops independently of the performance of the Services and the Customer Materials (“Flywheel Know-How”); provided that Flywheel grants to Customer and its affiliates an irrevocable, personal, non-exclusive, paid-up, perpetual, worldwide, non-transferable license to use, display and otherwise engage such Flywheel Know-How internally with Customer and as Customer deems necessary to enable the full use and benefit of the Services and the Deliverables.
   • Customer Feedback. For any comments, submissions or other feedback Customer or its personnel or contractors may provide to Flywheel, at its sole discretion, concerning the functionality and performance of the Services, including identification of potential errors and improvements, the parties acknowledge that Flywheel will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such information as Flywheel sees fit, without any obligation or restriction of any kind to Customer. There is no obligation for Flywheel to review feedback, comments or submissions made by Customer, and there is no obligation to keep any such information confidential.
5. Fees and Payment.
   • Services Fees. Services Fees shall be set forth in the applicable Order Form and such Services Fees shall be Flywheel’s sole compensation for the Services.
   • Payment. For any Services Fees, Flywheel shall submit all invoices to the attention of the project manager identified in the applicable Order Form. All payments shall be made in U.S. dollars in accordance with instructions provided by Flywheel. Unless set forth otherwise in the Order Form, all Services Fees shall be invoiced as incurred and shall be due within thirty (30) days of the date of receipt of the applicable invoice.
   • Taxes. Except as otherwise provided in an Order Form, the agreed upon fees include all sales, use, value added and withholding taxes and any other taxes or duties. Flywheel shall be responsible for making all payments to the applicable taxing authorities in a timely manner. Flywheel shall be solely liable for any and all taxes based on or measured on Flywheel’s income.

6. Term and Termination.
   • Term of Agreement. This Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with this Agreement, shall remain in effect pursuant to the Services Term identified on the Order Form.
   • Renewal of Services Term. Unless provided otherwise in the applicable Order Form, the Services Term may only be renewed upon written agreement of the Parties. However, should any Order Form provide for automatic renewal, notwithstanding anything to the contrary in the Order Form, (a) the number of automatic renewals shall not exceed two (2) successive one (1)-year periods, and (b) no automatic renewal may occur after the expiration of the Agreement.
   • Termination for Convenience. Customer shall be entitled to terminate any Services Term for convenience upon thirty (30) days prior written notice.
   • Termination Automatically. This Agreement and all Order Forms shall automatically terminate upon (a) the death or institution of a dissolution proceeding of the other Party, (b) the institution of any proceeding, voluntary or involuntary, in bankruptcy, insolvency, or liquidation by or against such other Party, other than an involuntary proceeding which is dismissed within sixty (60) days of filing, or (c) any assignment of such other Party’s assets for the benefit of creditors, placement of the assets of such other Party in the hands of a trustee or receiver, unless the trust or receivership is dissolved within sixty (60) days thereafter.
   • Termination for Cause. Each Party shall be entitled to terminate this Agreement and all Order Forms on written notice in the event of any material breach by the other Party (including any failure by Customer to make payments when due if such payments are not being contested in good faith), provided however, that, if such breach is capable of being cured, the terminating Party must provide the other Party with the opportunity to cure the breach within the fifteen (15) days following receipt of written notice of such breach. Without limiting the forgoing, a violation of Sections 3 or 4 shall not be considered capable of being cured.
   • Effect of Termination. Upon termination of this Agreement for any reason, or upon expiration without renewal of any Services Term, Flywheel shall (a) promptly return or destroy, at Customer’s direction, any Customer Materials (plus all login information or access devices, if applicable) and all copies thereof in Flywheel’s possession; and (b) promptly deliver all Deliverables or parts thereof in existence as of the date of termination, and (c) promptly deliver to Customer an affidavit, signed by an executive officer of Flywheel, certifying that Flywheel has complied with these termination obligations. Upon receipt of such affidavit, Customer’s sole obligation shall be to promptly pay to Flywheel all undisputed fees and other amounts due and owing under this Agreement. Notwithstanding anything to the contrary contained herein, any provisions which, by their nature, are intended to survive any expiration or termination of this Agreement shall so survive, including Section 7.
7. Confidentiality
   • Generally. Neither Party shall use or disclose the other Party’s Confidential Information except as expressly required or permitted herein. Neither Party shall disclose any of such Confidential Information to any of such Party’s employees, subcontractors, and licensors except as is reasonably required in connection with the exercise of such Party’s rights and obligations under this Agreement, provided that such employees, subcontractors and licensors are subject to binding use and disclosure restrictions at least as protective as those set forth herein, executed in writing by such employees, subcontractors, or licensors. However, each Party may disclose Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing Party gives reasonable notice to the other Party to contest such order or requirement; and (ii) on a confidential basis to its legal or financial advisors.
   • Exclusions. For purposes of this Agreement, the term “Confidential Information” does not include any data or information which: (a) the Recipient can establish was already known by the Recipient at the time of disclosure hereunder by the Disclosing Party; (b) is or becomes generally known to the public other than as a result of a disclosure by the Recipient; (c) is received by the Recipient from a third party, without restriction on disclosure, and without breaching any obligation of confidentiality about which the Recipient knew or should have known; or (d) is independently developed by the Recipient without use or reliance on, directly or indirectly, of Confidential Information received from Disclosing Party, as demonstrated from the written records of the Recipient.
8. Warranty and Disclaimers.
   • 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 as a corporation or other entity under the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement; and (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party which therefore constitutes a legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
   • Additional Flywheel Warranties. Flywheel warrants and represents that (a) while performing any Services under an Order Form its performance of the Services shall comply with the terms of the Order Form, including satisfying any specifications set forth therein regarding Flywheel’s Personnel or otherwise, and (b) f it will perform the Services in a professional, competent, and workmanlike manner in accordance with industry standards and reflecting its best professional knowledge, skill, and judgment,
   • Additional Customer Warranties. Customer represents, warrants, and covenants to Flywheel that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Flywheel and used in accordance with this Agreement, they do not and will not violate any Applicable Law, including intellectual property rights of any third party.
   • Warranty Disclaimer; Limitations. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8, THE SERVICES, DATA, AND DELIVERABLES ARE PROVIDED “AS IS” AND FLYWHEEL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND FLYWHEEL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, FLYWHEEL MAKES NO WARRANTY OF ANY KIND THAT THE HUBSPOT PLATFORM OR WORK PRODUCT, OR ANY SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. THE DISCLAIMERS OF WARRANTY, LIMITATIONS OF LIABILITY, AND OTHER PROVISIONS STATED HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND APPLY REGARDLESS OF WHETHER ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
   • Third-Party Disclaimer. ALL SUCH THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS, AND FLYWHEEL HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY RELATING TO THE COMPLETENESS OR ACCURACY OF DATA PROVIDED HEREUNDER.  
   • Limitation of Liability. IN NO EVENT WILL FLYWHEEL OR ANY OF ITS LICENSORS, VENDORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (ii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF FLYWHEEL AND ITS LICENSORS, VENDORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID TO FLYWHEEL UNDER ANY ORDER FORM DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   • Cumulative Remedies. Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
9. Indemnification.
   • Customer Indemnification.   Customer shall indemnify and hold harmless Flywheel and all employees, officers, directors, and agents of Flywheel for any and all claims, penalties, liabilities, losses, damages, settlements, and costs (including attorneys’ fees) arising directly or indirectly out of (a) any negligent or willfully wrong act or omission of Customer or to any other entity to which Customer has provided Customer Materials in any form; and (b) any breach of Confidential Information.
   • Flywheel Indemnification. Flywheel shall indemnify and hold harmless Customer and all employees, officers, directors, and agents of Customer for any and all claims, penalties, liabilities, losses, damages, settlements, and costs (including attorneys’ fees) arising directly or indirectly out of (a) any breach of Confidential Information, or (b) any third party claim or cause of action alleging that the Services, when used in accordance with the applicable Order Form and this Agreement, infringes or misappropriates such third-party’s intellectual property rights; provided, that with respect to (b) then upon notice to Flywheel, or upon determination by Flywheel that the Services is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, then Flywheel may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Services materially as contemplated by the applicable Order Form and this Agreement; (ii) modify or replace the Services, in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute the Services under this Agreement; or (iii) by written notice to Customer, terminate the licenses or granted to Customer under the Order Form and this Agreement and require Customer to immediately cease any use of the Services or Deliverables, or any specified part or feature thereof. THIS REMEDY SETS FORTH CUSTOMER’S SOLE REMEDIES AND FLYWHEEL’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE APPLICABLE ORDER FORM OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DELIVERABLES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD- PARTY INTELLECTUAL PROPERTY RIGHT. Flywheel shall be relieved of its indemnification obligations for any infringement claim to the extent that it arises from or is alleged to arise from modification of the Services or Deliverables that was not provided by or performed on behalf of Flywheel, or Customer’s use of the Services or Deliverables in violation of the applicable Order Form or this Agreement.
   • Requirements. Any indemnification obligation arising under this Section 9 shall be subject to compliance with the following requirements: (a) the indemnified Party promptly provides the indemnifying Party written notification of the assertion of any claim; and (b) the indemnified Party provides reasonable support in aiding the indemnifying Party in any defense to a claim, at the indemnifying Party’s cost; and (c) the indemnifying Party has sole control over the defense or settlement of any claim.
10. Miscellaneous.
    • Publicity: Use of Marks. This Agreement confers no right to use any trade dress, trademark, or other designation of a Party (“Marks”) by the other Party or its affiliates. Each Party hereto agrees not to use the name or Marks of the other Party in any publicity or promotional activity, without the express written consent of the other Party.
    • Assignment. Customer may not assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without Flywheel’s express prior written consent, not to be unreasonably withheld. Any assignment in violation of this section shall be void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, permitted successors and assigns.
    • Notices. All notices or approvals required or permitted hereunder shall be in writing and shall be deemed to have been given upon: (a) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; (b) delivery if sent by a courier service that confirms delivery in writing; or (c) the date sent by facsimile, with a confirmation copy sent via national overnight courier, in each case addressed as follows: (x) if to Customer, then to the address set forth on the signature page of this Agreement to the attention of the Project Manager identified in the Order Form, with a copy sent to the General Counsel at the same address; or (y) if to Flywheel, then to the address set forth on the Order Form. Either Party may change its address for such communications by giving notice thereof to the other Party in conformity with this Section.
    • Independent Parties. No Authority to Bind. The relationship of Flywheel and Customer is that of independent contractors. Neither Party nor their employees are agents, employees, or joint venturers of the other Party. Neither Party shall have any authority to bind the other Party to any obligation by contract or otherwise. Flywheel shall be solely responsible for hiring all Personnel necessary to perform the Services hereunder and such Personnel shall be deemed to be employees or agents of Flywheel only, and shall not for any purpose be considered employees or agents of Customer.
    • Severability. If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    • Third-Party Beneficiaries. No provisions of this Agreement are intended nor shall be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any other Party under this Agreement.
    • Amendment. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by both Parties explicitly referencing this Agreement.
    • Governing Law, Venue. This Agreement and any action related thereto will be governed, controlled, interpreted, and defined by and under the laws of the State of [California] without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and the Parties irrevocably submit to the jurisdiction of those courts. The Parties agree that venue in any action arising under this Agreement shall be exclusively in state or federal courts located in the State of [California].
    • Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties, whether written or oral, with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings between the Parties with respect to the Services furnished by Flywheel hereunder. In the event of any conflict between the terms and conditions of this Agreement and those contained in an Order Form or other attachment hereto, the terms and conditions of this Agreement shall prevail, provided that the Parties may agree in an Order Form to supersede the terms of this Agreement by specifically identifying and approving in any Order Form the specific terms to be superseded, in which case such terms shall govern with respect to the Services specified in that particular Order Form only. Any terms set forth on a purchase order or other written documentation provided by either Party are hereby rejected and shall not be binding on the other Party.

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