Terms of Service | Falconer

PLEASE READ THIS TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE PRODUCTS OFFERED BY FALCONER AI COMPANY (“FALCONER”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH FALCONER WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA FALCONER’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY FALCONER SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

Order Forms; Access to the Product. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Falconer grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Falconer product(s) and/or service(s) specified in such Order Form (collectively, the “Product,” or “Products”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Falconer’s applicable official user documentation for such Product (the “Documentation”).
Account Types. Falconer allows both individual users (“Individual Customers”) and entities (“Enterprise Customers”) to create accounts to access the Products (an “Account”). “Customer” as used herein refers to either Individual Customers or Enterprise Customers, as applicable. Individual Customers acknowledge and agree that if such Customer signed up for the Products in a manner that indicates that such Individual Customer is associated with a particular entity or employer (e.g., by using an email or other credentials associated with such entity or employer), and if such entity or employer currently has or later enters into an agreement for the Products with Falconer (an “Entity Agreement”), then at Falconer’s option, such Individual Customer’s Account may be merged with and/or subsumed by such employer’s or entity’s Account under the applicable Entity Agreement (an “Entity Account Transfer”), at which point this Agreement will terminate with respect to such Individual Customer and any further use of the Products will be pursuant to the applicable Entity Agreement.
Implementation. Upon payment of any applicable fees set forth in each Order Form, Falconer agrees to use reasonable commercial efforts to provide standard implementation assistance for the Product only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Falconer provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Falconer otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Falconer at its then-current hourly rates for consultation.
Support; Service Levels. Subject to Customer’s payment of all applicable fees, Falconer will provide support, maintenance, and uptime for each Product in accordance with Falconer’s then-current standard support and availability policies for the Product.
Product Updates. From time to time, Falconer may provide upgrades, patches, enhancements, or fixes for the Products to its customers generally without additional charge (“Updates”), and such Updates will become part of the Products and subject to this Agreement; provided that Falconer shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Falconer may make improvements and modifications to the Products at any time in its sole discretion; provided that Falconer shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
Modification of Terms. Falconer reserves the right to change these Terms at any time, and if Falconer does so, Falconer will place a notice on its website, send Customer an email, and/or notify Customer by some other reasonable means. Any such changed Terms will apply to Customer upon the commencement of Customer’s next Order Form Renewal Term (as defined below). If Customer does not agree with the new Terms, Customer may reject them but will no longer be able to use the Products. If Customer uses the Products in any way after a change to the Terms is effective, that means Customer agrees to all of the changes.
Ownership; Feedback. As between the parties, Falconer retains all right, title, and interest in and to the Products, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Falconer for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Products” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Falconer with respect to the Product (“Feedback”). Falconer acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Falconer a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Falconer’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
Fees; Payment. Customer shall pay Falconer fees as set forth in each Order Form (“Fees”). Unless otherwise specified herein or in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with the Product (excluding taxes based on Falconer’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Falconer shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Falconer’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below), such renewal shall include the additional fees for such excess users and usage.
Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Product (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Product; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Product; (iv) use the Product for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Product or any portion thereof; (vi) use the Product to build an application or product that is competitive with any Falconer product or service or use any Customer Output (defined below) to develop foundation models or other large scale models that compete with the Product, (vii) interfere or attempt to interfere with the proper working of the Product or any activities conducted on the Product; or (viii) bypass any measures Falconer may use to prevent or restrict access to the Product (or other accounts, computer systems or networks connected to the Product) or (ix) use the Product to engage in any high-risk activities associated with artificial intelligence technologies. Customer is responsible for all of Customer’s activity in connection with the Product, including but not limited to uploading Customer Data (as defined below) onto the Product. Customer (a) shall use the Product in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Product (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Product in a manner that violates any third party intellectual property, contractual or other proprietary rights.
Confidential Information. From time to time during the Term (as defined below), either party may disclose or make available to the other party nonpublic information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). For the avoidance of doubt, Falconer’s Confidential Information includes without limitation the Products and any product roadmap information. Confidential Information does not include information that, at the time of disclosure is: (a) generally available to the public; (b) known to the receiving party at the time of disclosure without restriction; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without access to or use of the Confidential Information. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to any person or entity, except to the receiving party’s employees, consultants, agents or representatives who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and (b) only use Confidential Information to fulfill its obligations and exercise its rights under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party will promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date such Confidential Information is first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Product Deployment; Customer Data. If set forth on an Order Form, the Product will be provisioned on a hosting environment provided by Customer (the “Customer Environment”). For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Product in the course of using the Product, including any information, data, and other content Customer may provide to be processed by the Product (“Customer Input”) and the outputs generated and returned by the Product based on the Customer Input (“Customer Output”). Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Falconer, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Falconer as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). The Product does not involve or require the use of any personal information or data and Customer acknowledges and agrees not to provide any such personal information or data. Customer acknowledges that due to the nature of the Product and artificial intelligence generally, the Customer Outputs may not be unique and other customers may receive similar data or outputs from the Product. Falconer shall use commercially reasonable efforts to maintain the security and integrity of the Product and the Customer Data. Notwithstanding anything else, if the Product is deployed in a Customer Environment, Customer acknowledges and agrees that: (a) Customer will provide Falconer with access to the Customer Environment to allow Falconer to install, configure, support and maintain the Product as provided hereunder, and Falconer shall not be responsible for any issues that arise from failure to provide such access; (b) Customer is responsible for ensuring that Falconer’s access to the Customer Environment as permitted hereunder does not conflict with or violate any agreement between Customer and any third party (including, without limitation, any third party hosting provider with respect to the Customer Environment); (c) Falconer does not host the Customer Environment into which the Products are deployed or in which Customer Data may be stored; and (d) Customer is solely responsible for the Customer Environment, including without limitation security, backup, and disaster recovery with respect thereto. Accordingly, and without limiting the foregoing, Falconer is not responsible to Customer for any loss, destruction, or alteration of, or unauthorized access to Customer Data or the unauthorized use of the Product except to the extent due to Falconer’s gross negligence or willful misconduct. Customer is responsible for the use of the Product by any person to whom Customer has given access to the Product, even if Customer did not authorize such use. By using the Products, Individual Customers acknowledge and agree that such Customers are subject to the provisions in this Agreement as well as those in Falconer’s Privacy Policy (located at falconer.com/privacy). Nothing herein shall prevent Falconer from transferring an Individual Customer’s Account and sharing an Individual Customer’s Customer Data with an applicable Enterprise Customer in connection with an Entity Account Transfer (which Customer Data may then be used by such Enterprise Customer in accordance with the applicable Entity Agreement). Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Customer may request the deletion of any Customer Data at any time. With respect to the Customer Environment, Customer further acknowledges and agrees that Customer is responsible for (i) protecting the security of all Customer credentials used to access the Customer Environment; (ii) securing the Customer Environment (with such steps to include without limitation the regular rotation of access keys and other industry standard steps to preclude unauthorized access); (iii) backing up and securing Customer Data under Customer’s control within the Customer Environment; and (iv) ensuring that Falconer does not have access to Customer Data that is not necessary for Falconer to perform its obligations hereunder, and Customer expressly assumes the risks associated with the foregoing responsibilities. Upon any termination or expiration of an applicable Order Form, Customer will permit Falconer to access the Customer Environment to remove all Falconer property, including but not limited to the Products. Except as may be required to provide the Product and improve the Product for Customer’s specific instance, and except in connection with Free Offerings (as defined below), Falconer shall not use any Customer Data to train, retrain, fine-tune, validate, test, update or otherwise improve any artificial intelligence, large language models, or similar artificial intelligence technologies. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Falconer may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Product and generating Customer Outputs to Customer and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use, retain and make available Aggregated De-Identified Data for Falconer’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Falconer’s products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Falconer in connection with Customer’s use of the Product, but only in aggregate, de-identified form which can in no way be linked specifically to Customer.
Vendor Integrations. Customer acknowledges and agrees that (i) the Product may integrate with, connect to, or otherwise use platforms, products or services operated or provided by third parties (e.g., other vendors of Customer) (“Vendor Integrations”), including via use of application programming interfaces (APIs) provided by such Vendor Integrations, (ii) the availability and operation of the Product or certain portions thereof may be dependent on Falconer’s ability to access such Vendor Integrations, and (iii) Customer’s failure to provide adequate access or any retraction of permissions relating to such Vendor Integrations may result in a suspension or interruption of the Product. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Vendor Integrations that it integrates with the Product, and Customer shall indemnify, defend and hold harmless the Falconer for all claims, damages and liabilities arising out of Customer’s use of any Vendor Integrations in connection with or through the Product. Customer is solely responsible for procuring any and all rights necessary for it to access Vendor Integrations (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions. Falconer cannot and does not guarantee that the Product shall incorporate (or continue to incorporate) any particular Vendor Integrations and does not make any representations or warranties with respect to Vendor Integrations.
Third Party Terms. Customer acknowledges and agrees that: (i) the Product may incorporate certain technology, information, data, and materials from third party providers (collectively, “Third Party Services”); (ii) without limiting any rights that Customer may have under any separate agreement between Customer and any provider of a Third Party Service, Third Party Services may only be used in conjunction with the Product; and (iii) Customer’s use of the Third Party Services hereunder shall be subject to (and Customer agrees it is bound by) the third party terms and conditions referenced at falconer.com/third-party-terms (the “Third Party Terms Site”), as they may be modified from time to time by Falconer and/or its third party licensors or suppliers at any time (collectively, the “Third Party Terms”), and which are incorporated into this Agreement by reference. Customer is responsible for checking the Third Party Terms Site for updates. Any use by Customer of the Products following a change to the Third Party Terms shall constitute acceptance of such change. Falconer cannot and does not guarantee that the Product shall incorporate (or continue to incorporate) any particular Third Party Services, and does not make any representations or warranties with respect to Third Party Services or any third party providers.
Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, an “Order Form Renewal Term”, and collectively, the “Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Falconer may suspend or limit Customer’s access to or use of the Product if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Product results in (or is reasonably likely to result in) damage to or material degradation of the Product which interferes with Falconer’s ability to provide access to the Product to other customers; provided that in the case of subsection (ii): (a) Falconer shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Falconer shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Falconer shall reinstate Customer’s use of or access to the Product, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Falconer to Customer, including any assistance in exporting the Customer Data, shall be billable at Falconer’s standard rates then in effect.
Indemnification. To the fullest extent allowed by applicable law, each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of their respective employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all losses, liabilities, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim by such third party that (i) the Customer Data or Customer’s use of the Product (in the case of Customer as Indemnitor), or (ii) the Product (in the case of Falconer as Indemnitor), infringes, violates, or misappropriates any intellectual property or proprietary right of such third party; provided that the Indemnitee provides the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Falconer do not apply (A) with respect to the Product or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by Falconer (including without limitation any Customer Data), (2) made in whole or in part in accordance to Customer specifications, (3) modified after delivery by Falconer, (4) combined with other products, processes or materials not provided by Falconer (where the alleged Losses arise from or relate to such combination), (B) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (C) to the extent Losses arise from Customer’s breach of this Agreement.
Free/Trial Use. Falconer may make the Products or certain editions of the Products (e.g., a free trial, evaluation, “community”, pilot, or similar version) available to Customer free of charge (“Free Offerings”). Notwithstanding anything else, (i) if Customer provides any Customer Data in connection with a Free Offering, Falconer shall have no obligations with respect to such Customer Data, and Falconer expressly disclaims any liability with respect to such Customer Data, (ii) Free Offerings are provided “AS-IS,” without warranty of any kind, (iii) Falconer shall not have any obligation to provide any support for Free Offerings, and (iv) Falconer shall have no obligations under Sections 3 (Implementation), 4 (Support; Service Levels); 10 (Confidential Information); or 15 (Indemnification) or liability of any kind with respect to Free Offerings (unless such exclusion of liability is not enforceable under applicable law, in which case Falconer’s liability with respect to the Free Offerings shall not exceed $100.00) and (iv) Falconer may terminate the Free Offerings and this Agreement at any time with or without notice.
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER OUTPUTS ARE GENERATED THROUGH ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING PROCESSES AND ARE NOT TESTED, VERIFIED, ENDORSED OR GUARANTEED TO BE ACCURATE, COMPLETE OR CURRENT BY FALCONER. CUSTOMER SHOULD INDEPENDENTLY REVIEW AND VERIFY ALL CUSTOMER OUTPUTS AS TO THE APPROPRIATENESS FOR THEIR USE CASES OR APPLICATIONS. FALCONER IS NOT RESPONSIBLE FOR VERIFYING THE ACCURACY OR COMPLETENESS OF ANY CUSTOMER INPUT OR CUSTOMER OUTPUT AND IS ALSO NOT RESPONSIBLE FOR ANY INACCURACIES OR OTHER ERRORS IN THE CUSTOMER OUTPUTS RESULTING FROM ANY ERRORS IN THE INPUTS.
Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF THE SECTION ENTITLED “RESTRICTIONS”, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO FALCONER HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
Miscellaneous. This Agreement (including all Order Forms) represents the entire agreement between Customer and Falconer with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Falconer with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Falconer may utilize subcontractors in the performance of its obligations hereunder. Customer agrees that Falconer may use Customer’s name and logo to refer to Customer as a customer of Falconer on its website and in marketing materials. Customer agrees to participate in press announcements, case studies, or other forms reasonably requested by Falconer. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.