BloomReach Master Subscription Agreement
(Effective: March 16, 2018 to January 28, 2019)
For other versions of the Bloomreach’s Master Subscription Agreement, click here.
PLEASE READ THIS MASTER SUBSCRIPTION AGREEMENT CAREFULLY, AS THIS AGREEMENT, TOGETHER WITH THE BLOOMREACH SALES ORDER ON WHICH THEY ARE REFERENCED, CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE BLOOMREACH PRODUCTS, SERVICES, SOFTWARE AND ADDITIONAL SERVICES AND THE PROVISION BY BLOOMREACH OF ASSOCIATED PRODUCTS AND SERVICES (“AGREEMENT”). CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE PRODUCTS, SERVICES, SOFTWARE AND ADDITIONAL SERVICES.
This Agreement is entered into by and between the customer, identified on the Sales Order, that is purchasing Products, Services, Software and Additional Services (“You” or “Customer”) and BloomReach, Inc., located at 82 Pioneer Way, Mountain View, CA 94041 (if Customer resides in the United States of America or Canada as represented in the applicable Sales Order) or BloomReach B.V, located at Oosteinde 11, 1017 WT Amsterdam The Netherlands (if Customer resides outside of United States of America or Canada as represented in the applicable Sales Order) (“BloomReach”), and is effective as of the date You download the BloomReach Software, receive or access the BloomReach Products, Services, Software or Additional Services or sign the Sales Order, whichever comes first (the “Effective Date“). BloomReach and Customer are collectively referred to as the “Parties” and individually as a “Party”. Subject to the terms and conditions of this Agreement, during the Subscription Term, BloomReach will provide to Customer the Products, Services, Software and Additional Services as identified on the applicable Sales Order. If You are entering into this Agreement on behalf of a company or legal entity, You represent that You have the authority to bind such entity to these terms and conditions, in which case the terms “You” and “Your” shall refer to such entity. This Agreement permits Customer to order the BloomReach Products, Software, Services and Additional Services (as applicable) from BloomReach pursuant to the terms and conditions contained herein. If Customer is ordering or otherwise obtaining the BloomReach Products, Software, and Services, Additional Services, then the terms and conditions of this Agreement shall govern Customer’s use of the Products, Software, Services and Additional Services.
In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1 "Additional Services” means all additional services provided by BloomReach to the Customer other than the Product, including but not limited to integration services, professional consulting services, Development and Training, and purchased in the applicable Sales Order.
1.2 “Affiliate” means any entity under the control of a party where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
1.3 “Certified Stack(s)” mean the software configurations that are required for the Software to be operable as set forth at https://www.onehippo.org/library/about/system-requirements.html.
1.4 “Contractors” means Customer’s independent contractors and consultants.
1.5 “CPU” or “Core Processing Unit” can be a physical or virtual core processing unit. Every core in a multi-core processor counts as 1 CPU. In virtualized environments only assigned CPU’s count. CPU’s are undividable: <1 assigned CPU counts as 1 CPU. In the event of elastic CPU assignment the highest amount of assigned CPU’s in a single year counts. For Amazon EC2 the following table is used to count the number of CPU’s: http://aws.amazon.com/ec2/virtualcores/.
1.6 “Deliverables” means anything developed or provided by BloomReach for Customer’s use for its internal business purposes relating to BloomReach Product or Services and delivered by BloomReach to Customer in accordance with a Sales Order.
1.7 “Development” means the programming activities specifically for use with the Product or Additional Service provided by BloomReach to the Customer resulting in Deliverables, in accordance with a Sales Order.
1.8 “Documentation” means any technical specification documentation, technical product descriptions, user guides and technical integration guides relating to a BloomReach Product generally provided by BloomReach to customers via the BloomReach dashboard or documentation portal.
1.9 “Expense(s)” means an out-of-pocket expense that BloomReach has incurred to perform Services.
1.10 “Initial Subscription Term” means the period beginning as of the “Subscription Commencement Date” and continue for the period specified in the Sales Order.
1.11 “Intellectual Property Rights” means all rights of intellectual property, such as copyrights, trademark rights, patents, model rights, trade name rights, database rights and neighboring rights, as well as domain names and know-how and any related rights.
1.12 “Sales Order” means a BloomReach order form that specifies the fees, term and other details of the Products, Software and Services to be provided by BloomReach signed by authorized representatives of each Party.
1.13 “Site” means the web or other digital pages under the domain(s) specified in the applicable Sales Order for display on the supported devices, native applications and other platforms specified in the Sales Order.
1.14 “Page Views” means a request where: 1) the status code is 2xx. 2) the request is a GET. 3) the request is a “html” page or an API call ([REST], static content request – e.g., images are excluded]).
1.15 “Permitted Users” means employees of Customer and Customer’s permitted Contractors and Affiliates, unless otherwise limited or set forth in the applicable Sales Order.
1.16 “Products” and “Services” means the products and services (which include Additional Services) offered by BloomReach and as set forth on the applicable Sales Order.
1.17 “Server” means up to one physical server, up to one virtual operating system (VM), up to four CPU’s, up to two application servers (web containers), and up to two BloomReach repositories.
1.18 “Software” means BloomReach source code, algorithms or other code, including the underlying structure, schema, functions, methods of operation and ideas relating to the software that is being developed as part of the software and any algorithms, derivative works, or any modifications, corrections, improvements, or extensions used by BloomReach to provide the Products and Services.
1.19 “Subscription Term” means the Initial Subscription Term plus any Renewal Term set forth on the applicable Sales Order. Subscription Terms shall renew for successive terms, unless Customer gives BloomReach at least one (1) month’s notice of nonrenewal at the end of the applicable term, “Renewal Term”.
1.20 “Training” means a form of knowledge transfer aimed at making Customers familiar with the BloomReach Products and Services to be supplied by BloomReach as set forth in a Sales Order.
1.21 “Maintenance and Support Services” shall be set forth in the applicable Sales Order.
2. LICENSE TERMS
2.1 As long as the Customer complies with the payment obligations arising from the Agreement and does not act in breach of the Agreement, BloomReach hereby grants the Customer licenses specific to the Products, Software and Services described in the Sales Order during the Subscription Term subject to the terms and conditions stated in this Agreement and the applicable Sales Order as follows: (1) Customers using a hosted or cloud version of the Product shall receive a world-wide, non-exclusive, non-transferable, revocable right to use and access the Products, Software and Services (2) Customer using on-premise version of the Product, Software and Services shall receive a worldwide, non-exclusive, non-transferable, revocable license, to use and reproduce the Products, Software and Services in object form.
2.2 Open Source Software. If any open source software is incorporated into a Product, Service or Deliverable, Customer's rights with regard to the open source software will be governed by the applicable open source license. A list of Open Source Software used in BloomReach Products can be found at https://www.onehippo.org/library/about/open-source-components-integrated-in-and-with-hippo-cms.html.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 The Intellectual Property Rights with regard to BloomReach's Products, Services, Deliverables, Documentation and trademarks and trade names will fully remain with BloomReach or BloomReach's suppliers, including the underlying structure, schema, functions, methods of operation and ideas relating to the Services that is being developed as part of the Services and any algorithms, derivative works, or any modifications, corrections, improvements, or extensions to the Software. The Customer will not obtain any further rights other than are explicitly granted to the Customer in this Agreement.
3.2 Generated Data. The Intellectual Property Rights with regard to data the Customer has generated by using the Product and Services will remain with the Customer.
3.3 Feedback. Customer grants to BloomReach worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Products, Software and Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Customer.
3.4 Deliverables. BloomReach grants Customer a non-exclusive, non-transferable, license to use for its internal business purposes during the Subscription Term for Deliverables developed by BloomReach pursuant to a Sales Order. Subject to Customer’s ownership of its proprietary and Confidential Information disclosed to BloomReach under Section 6 (Confidentiality), BloomReach shall retain all ownership rights to the BloomReach Deliverables including any code, derivative, enhancement or modification thereof created by BloomReach (or its agents).
4. RESTRICTIONS AND RESPONSIBILITIES
4.1 Customer using hosted or cloud version of Products and Services will not, directly or indirectly, during or after a Subscription Term do any of the following: (a) attempt to download or access the Software (other than remote access to functionality of the Software provided through the Services by BloomReach), (b) reverse engineer, decompile, disassemble or otherwise attempt to discover any portion of the Software; (c) remove any proprietary notices or labels; (d) make the Products or Services available to any third party by sublicense, lease, sale, transfer, or any other means, or (e) modify or create derivative works based on the Products or Services or any Software.
4.2 Customers using on premise versions of the Products or Software will not directly or indirectly, during or after a Subscription Term, do any of the following: (a) install or run the Products or Software on more Servers than the maximum number of Servers set forth on the applicable Sales Order (b) reverse engineer, decompile, disassemble or otherwise attempt to discover any portion of the Software; (c) remove any proprietary notices or labels; or (d) make the Products, Services, or Software available to any third party by sublicense, lease, sale, transfer, or any other means.
4.4 Government End-Users. Elements of the BloomReach Products, Software and Services are commercial computer software. If the user or licensee of the BloomReach Products, Software and Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the BloomReach Products, Software and Services or any related Documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All BloomReach Products, Software and Services were developed fully at private expense. All other use is prohibited.
4.5 Acceptable Use. Customer will (a) use the Products, Software and Services solely to conduct and support its normal business operations and with respect to hosted or cloud versions (b) comply with the BloomReach Acceptable Use Policy available at https://www.bloomreach.com/en/about/acceptable-use-policy (the “AUP”).
5. CONTRACTORS AND AFFILIATES
5.1 Permitted Users. Customer may permit its Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement. Any such use of any BloomReach Products, Software and Services by such Contractor shall be for the sole benefit of Customer.
5.2 Affiliate Sales Orders. Affiliates who wish to purchase BloomReach Products, Software and Services from BloomReach during a Subscription Term may do so under the terms and conditions of this Agreement, provided that BloomReach in its sole discretion will enter into a separate Sales Order with each Affiliate (“Affiliate Sales Order”). The Affiliate that executes a Sales Order shall be considered the “Customer” for all purposes of such Affiliate Sales Order; and such Affiliate Sales Order shall be considered a two-party agreement between BloomReach and such Affiliate and incorporate by reference all the provisions of this Agreement as though such provisions were set forth therein in their entirety; provided, however, that if such Affiliate is not able to comply with its obligations under such Affiliate Sales Order, Customer shall remain ultimately responsible for such Affiliate’s compliance with such Affiliate Sales Order. Each Affiliate Sales Order shall reference the name and Effective Date of this Agreement and shall be effective on the date specified in the Affiliate Sales Order.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof (except Proprietary Information that is identified as trade secrets, in which case the foregoing obligations are ongoing) or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law to be disclosed, provided that Receiving Party first provides the Disclosing Party with reasonable prior notice and obtains, or provides the Disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Proprietary Information. In any event, BloomReach may collect and anonymously use aggregated data BloomReach creates in connection with its performance of the Products, Services and Software in order to generally improve and optimize the performance of the Products, Services, and Software and any other BloomReach products and services provided that in no event will BloomReach share any data with any third party outside the scope of this Agreement.
7. ADDITIONAL SERVICES
7.1 The scope of Additional Services shall be as set forth in a Sales Order for such services, which shall reference this Agreement and describe the work to be performed and any applicable fees. Customer may use Deliverables delivered as part of the Additional Services solely in support of the authorized use of the BloomReach Products, Services, and Software and subject to the terms regarding Customer’s rights to use the BloomReach Products, Services, Software and Additional Services set forth in Section(s): 2 (License Terms), 3 (Intellectual Property Rights), 4 (Restrictions and Responsibilities) and the applicable Sales Order. Customer may not copy or distribute outside of Customer any training materials provided in connection with Additional Services. Changes to Additional Services Sales Order(s). Either Party may propose in writing, a change to the scope described in the applicable Sales Order, (including, but not limited to, addition or modification of Additional Services, changes in the specifications, and/or changes to any milestones) by issuing a written request, by email or otherwise, (a “Change Order Request”). BloomReach will promptly respond in writing to any Change Order Request, stating how such proposed modifications to the Additional Services will affect the time required for BloomReach to perform the Additional Services, as well as any proposed equitable adjustment in the Additional Service Fees (“Change Order Estimate”). If each party agrees to such Change Order Estimate, then the parties shall prepare a mutually agreeable written amendment to the applicable Sales Order to incorporate the agreed-upon revisions to the Additional Services and/or service fees.
7.2 Customer acknowledges that its failure or delay in satisfying any Customer responsibility may adversely affect BloomReach’s ability to satisfy its performance obligations. In any such case, BloomReach will be excused from any resulting failure or delay of performance and will be entitled to recover from Customer any additional Fees or Expenses that BloomReach incurs, subject to BloomReach’s obligation to mitigate such Fees and Expenses to the extent that it is commercially practicable to do so.
8. PAYMENT OF FEES
Customer shall pay BloomReach the fees in accordance with the applicable Sales Order (the “Fees”). All Fees shall be invoiced as follows and except as expressly set forth in Section 12.1 (Indemnity) of this Agreement, shall be non-refundable. Full payment for all invoices is due and payable within thirty (30) days from the date of the invoice and BloomReach may suspend or terminate the Services if any payment is overdue or Customer does not comply with the AUP. BloomReach will not exercise any rights to suspend or terminate the Services, accelerate payments, impose late charges or change payment terms hereunder with respect to an overdue amount for so long as Customer is disputing the overdue amount in good faith. The parties shall cooperate diligently to resolve the dispute. If Customer believes that BloomReach has billed Customer incorrectly, Customer must contact BloomReach no later than 30 days after the date of the invoice in which the error or problem first appeared, in order to receive an adjustment or credit, if applicable. Inquiries should be directed to BloomReach’s Customer Support department. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. BloomReach’s Fees are exclusive of all sales, use, value-added, withholding and other taxes or duties, and Customer will promptly pay or reimburse BloomReach for all taxes arising out of this Agreement. Customer hereby confirms that BloomReach can rely on the Customer corporate address in applicable Sales Order as being the place of use for sales tax purposes, unless Customer provides, prior to invoicing by BloomReach, a list of other place(s) as being the place(s) of use. If Customer is legally entitled to an exemption from the payment of any taxes, Customer will promptly provide BloomReach with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. If Customer is located outside the United States and required to pay or withhold any tax in respect of any payments due to BloomReach hereunder, Customer will gross up payments actually made such that BloomReach receives sums due hereunder in full and free of any deduction for any such tax. BloomReach reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of any Renewal Term.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and shall remain in effect so long as the current or any subsequent Sales Order for the Services is in effect.
9.2 Termination. In addition to any other remedies it may have, either party may terminate this Agreement and any underlying Sale Order(s) upon thirty (30) days’ written notice (or ten (10) days in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured within the relevant notice period. Upon termination Customer will cease using the Products, Software and Services. If Customer terminates a Sales Order or this Agreement due to BloomReach’s uncured breach, BloomReach will refund any prepaid Fees covering the remainder of the Subscription Term of the affected Sales Orders after the effective date of termination. If the Agreement is terminated by BloomReach due to Customer’s uncured breach, Customer will pay any unpaid Fees covering the remainder of the Subscription Term of all affected Sales Orders. In no event will termination relieve Customer of its obligation to pay any Fees payable for the period prior to the effective date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Section(s): 2 (License Term), 3 (Intellectual Property Rights), 4 (Restrictions and Responsibilities), (8) Payment of Fees, (6) Confidentiality, (10) Warranty and Disclaimers, (11) Limitation of Liability and (14.2) Non-Solicitation.
10. WARRANTY AND DISCLAIMER
Customer represents, covenants, and warrants that Customer will use the Products, Software and Services in compliance with all applicable laws and regulations (including without limitation laws and regulations related to privacy, intellectual property, consumer protection, obscenity or defamation). BloomReach warrants that any Services provided hereunder shall be provided in a competent and workmanlike manner in accordance with industry standards. The Products, Software and Services may be temporarily unavailable for unscheduled emergency maintenance, either by BloomReach or by third-party providers, or because of other causes beyond BloomReach’s reasonable control, but BloomReach shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. BloomReach does not warrant that the Products, Services or any Software will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Products, Services or Software. EXCEPT FOR THE FOREGOING, THE PRODUCTS, SERVICES AND ANY SOFTWARE ARE PROVIDED “AS IS” AND BLOOMREACH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT NEITHER BLOOMREACH NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND INTERNET SEARCH ENGINES. BLOOMREACH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
11. LIMITATION OF LIABILITY
Neither party shall be liable hereunder for any loss of profits, business, use or data, or for interruption of business, or any other indirect, incidental, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action. Except for BloomReach’s indemnification obligations in Section 12 (Indemnity) herein, BloomReach’s aggregate, cumulative monetary liability for any damages arising from or related to this Agreement, whether in contract or in tort or under any other legal theory (including strict liability and negligence), shall not exceed the Fees paid by Customer to BloomReach for the Services under this Agreement in the 12 months prior to the act that gave rise to the liability.
12.1 BloomReach shall defend Customer against any third-party action, claim or suit (“Claim”) to the extent such Claim alleges that the Products or Services infringe any United States patent right or trademark of a third party, BloomReach shall pay the costs, liabilities and expenses (including reasonable attorneys’ fees) awarded to the third party with respect to the Claim or agreed to by BloomReach in settlement of the Claim. The foregoing obligation shall not apply with respect to any Claim arising from or relating to (i) Customer’s use of the Services other than in accordance with and as contemplated by this Agreement or other breach of this Agreement by Customer; (ii) the combination of the Products, Software or Services with any other products, services, materials or technology, if the Services would not be infringing without such combination; (iii) any open source software; or (iv) modifications to the Services made according to Customer’s specifications. If the Products or Services become the subject of an intellectual property infringement Claim, BloomReach may, at its sole option, (a) procure for Customer a license to continue using the Products, Software or Services in accordance with this Agreement; (b) replace or modify the allegedly infringing portion of the Products, Software or Services to avoid the infringement, or (iii) terminate this Agreement and refund any prepaid unused Fees as of the date of termination. This Section 12.1 sets forth Customer’s sole remedy in the event of any third party infringement Claim regarding the Services.
12.2 Customer shall indemnify and defend BloomReach against any costs, liabilities and expenses (including reasonable attorneys’ fees) incurred in connection with any Claim arising from the Site(s) including the content thereon or from Customer’s misuse of the Services or breach of the AUP.
12.3 Each party’s obligations under this Section 12 (Indemnity) shall be conditioned on the party seeking indemnification providing the indemnifying party with (i) prompt notice of any Claim, (ii) sole control of the defense and settlement of any such Claim and (iii) reasonable cooperation in such defense and settlement.
13. PUBLICITY AND MARKETING
BloomReach may identify Customer as a customer of the Services on BloomReach’s customer lists, on its websites and in its advertising and marketing materials, and Customer hereby grants to BloomReach the right to use Customer’s name and trademarks in connection therewith. With Customer’s prior consent, BloomReach may develop and publish a case study and/or press release based upon Customer’s use of the Services. Following development of the case study, Customer will accept inquiries from press and analysts to discuss their use of the Services.
14.1 Complete Understanding. Each party agrees that this Agreement 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. In the event of any inconsistency between the terms of any Sales Order and this Agreement (or its exhibits) the terms of this Agreement (or its exhibits) shall control, unless the Sales Order expressly states that such term supersedes the conflicting term of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 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 to be enforceable. This Agreement will otherwise remain in full force and effect.
14.2 Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, Customer shall not solicit or seek to induce, without BloomReach’s prior written consent, the employment of any BloomReach employee or consultant.
14.3 Assignment. Neither party may transfer and assign any of its rights and obligations under this Agreement without consent of the other party, except that no consent shall be required upon written notice for an assignment of this Agreement by (i) either party pursuant to a change of control or a merger or sale of substantially all of a party’s assets or outstanding stock and (ii) by BloomReach to an entity controlled by or under common control with BloomReach in each instance provided that the assignee agrees in writing to assume all of the obligations of the assignor hereunder. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other in any respect whatsoever.
14.4 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by e-mail (provided that notice is followed up by another method permitted under this Section 14.4 (Notices), unless receipt is otherwise confirmed); the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
14.5 Governing Law. If Customer resides in the United States of America or Canada as represented in the applicable Sales Order, this Agreement is governed by the law of California, U.S.A without regard to its conflict of laws’ provisions and any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Santa Clara County. If Customer resides outside of United States of America or Canada as represented in the applicable Sales Order, this Agreement governed by the laws of The Netherlands and any legal action or proceeding relating to this Agreement shall be brought exclusively in Amsterdam, The Netherlands. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.