This Agreement is by and between RealProof, Inc., d/b/a ListenLayer, a Delaware corporation (“ListenLayer” or “Licensor” or alternatively “We/Us”), and the person or company creating or upgrading a ListenLayer User Account via the Account Creation Tool on our website, listenlayer.com and any of its subdomains (“Our Website”). The person or company identified in the Account Creation Tool must be a “Customer” (or “Licensee”) of ListenLayer agreeing to be bound by the terms of this Agreement, and/or an “Authorized User,” as defined herein, of a new or existing Customer of ListenLayer. ListenLayer and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
This Agreement must be, or must previously have been, accepted by the Customer or by a person acting with the Customer’s authority, using the Account Creation Tool in order to create or upgrade a ListenLayer User Account.
ListenLayer’s products and services include software components, software-as-a-service offerings, platform-as-a-service offerings, data aggregation and analytics, and service-level support for customers and their affiliates and end-users. We make our products and services available, and restrict their use, as prescribed in a set of “Plans” from which the Customer has selected (“Selected Plan”); details of the current Plans are always available on Our Website. This Agreement applies to the products and services available to the Customer pursuant to the Customer’s Selected Plan (collectively, the “Services”).
The Parties agree as follows:
1. Useful Definitions.
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by ListenLayer in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services is enabled by the creation or upgrading of a ListenLayer User Account by their own action or on their behalf by a person acting with the Customer’s authority.
(c) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) “Documentation” means ListenLayer’s end user documentation relating to the Services available at Our Website.
(e) “ListenLayer IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, ListenLayer IP includes Aggregated Statistics and any information, data, or other content derived from ListenLayer’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
(f) “Software” means the computer program instructions, including but not limited to source code, object code, functions, libraries, files, and programming interfaces, embodied in the software products developed by ListenLayer and known as “Listeners.”
2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s compliance with all terms and conditions of this Agreement, including without limitation payment of Fees if any, ListenLayer hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. ListenLayer shall provide to Customer the necessary network links or connections to allow Customer to access the Services, subject to any limitations set forth in the Selected Plan, examples of which include but are not limited to: maximum number of Authorized Users or User Accounts; maximum number of instances of Software; maximum number of internet domains to which Software may be deployed; and, restrictions on type and/or amount and/or source of data entered, collected, analyzed, or reported using the Services.
(b) Software License. Subject to and conditioned on Licensee’s compliance with all the terms and conditions of this Agreement, including without limitation Licensee’s payment of fees if any, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 11(g)) license during the Term to use the Software solely in connection with the Services, such use including making and deploying, subject to the limitations set forth in the Selected Plan, executable instances (i.e., copies) of the Software. Any such instance of the Software: (i) remains Licensor’s exclusive property; (ii) is subject to the terms and conditions of this Agreement and, in some cases, to the terms of one or more open source licenses, which We distribute when applicable to Software; and (iii) must include all copyright and other proprietary rights notices contained in the original.
(c) Documentation License. Subject to the terms and conditions contained in this Agreement, ListenLayer hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(d) Use Restrictions. Customer and its Authorized Users shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer and its Authorized Users shall not at any time, directly or indirectly, and shall not permit any other entity to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) use the Services or Documentation in any manner or for any purpose that causes the unauthorized storage or transmission of personally identifiable information (“PII”), personal health information (“PHI”), or any other sensitive information or data to which an individual has an objectively clear right of privacy. For avoidance of doubt, Customer and its Authorized Users are prohibited under any and all Plans from using the Services to store PII, and Customer is wholly responsible for de-identifying incidentally collected PII before storage.
(e) Reservation of Rights. ListenLayer reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the ListenLayer IP.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, ListenLayer may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) ListenLayer reasonably determines that (A) there is a threat or attack on, or misuse of, any of the ListenLayer IP; (B) Customer’s or any Authorized User’s use, including authorized use, of the ListenLayer IP disrupts or poses a security risk to the ListenLayer IP or to any other customer or vendor of ListenLayer; (C) Customer, or any Authorized User, is using the ListenLayer IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) ListenLayer’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of ListenLayer has suspended or terminated ListenLayer’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with any applicable Billing Terms incorporated herein by reference as set forth in Section 11(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension ”). ListenLayer shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. ListenLayer shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. ListenLayer will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(g) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, ListenLayer may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between ListenLayer and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by ListenLayer. Customer acknowledges that ListenLayer may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that ListenLayer may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
3. Responsibilities of Customer and Authorized Users. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. For avoidance of doubt: this Agreement’s provisions are applicable to the Authorized User’s use of the Services; and, either (i) the Authorized User expressly agrees to be bound by this Agreement as a condition of creating the Authorized User’s own User Account, or (ii) Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement and shall cause Authorized Users to comply with such provisions. Customer shall timely pay ListenLayer all fees, if any, associated with the Selected Plan, including any fees incurred due to use of the Services beyond the limitations of the Selected Plan, such fees and payments being governed by “Billing Terms” agreed upon by the Parties at the time the Customer purchases the Selected Plan.
4. Service Levels and Support.
(a) Service Levels. Subject to the terms and conditions of this Agreement, ListenLayer shall use commercially reasonable efforts to make the Services available in accordance with any stated service levels in connection with the selected Plan, or otherwise with commercially accepted service levels.
(b) Support. The access rights granted hereunder entitle Customer to the support services described from time to time on ListenLayer’s website located at https://listenlayer.com/support/ for the entire period in which this Agreement remains in effect.
5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party proprietary product information, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information“).Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. 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 shall 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 shall 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 of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date 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 of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
(a) ListenLayer IP. Customer acknowledges that, as between Customer and ListenLayer, ListenLayer owns all right, title, and interest, including all intellectual property rights, in and to the ListenLayer IP.
(b) Customer Data. ListenLayer acknowledges that, as between ListenLayer and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to ListenLayer a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for ListenLayer to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its Authorized Users or other employees or contractors sends or transmits any communications or materials to ListenLayer by mail, email, telephone, or otherwise, suggesting or recommending changes to the ListenLayer IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), ListenLayer is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to ListenLayer on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and ListenLayer is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although ListenLayer is not required to use any Feedback.
7. Warranty Disclaimer. OUR WEBSITE, OUR PLATFORM, AND THE LISTENLAYER IP ARE PROVIDED “AS IS” AND LISTENLAYER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LISTENLAYER 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. LISTENLAYER MAKES NO WARRANTY OF ANY KIND THAT THE LISTENLAYER IP, OR ANY PRODUCTS 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.
8. Limitations of Liability. IN NO EVENT WILL LISTENLAYER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LISTENLAYER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LISTENLAYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION UNDER THE FOLLOWING SECTION 9, AND OTHERWISE, EXCEED ONE TIMES THE TOTAL AMOUNTS PAID TO LISTENLAYER UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS.
(a) ListenLayer Indemnification.
(i) ListenLayer shall indemnify, defend, and hold harmless Customer from and against any losses, damages, liabilities, and costs (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies ListenLayer in writing of the claim, cooperates with ListenLayer, and allows ListenLayer sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit ListenLayer, at ListenLayer’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If ListenLayer determines that neither alternative is reasonably available, ListenLayer may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by ListenLayer or authorized by ListenLayer in writing; (B) modifications to the Services not made by ListenLayer; or (C) Customer Data.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at ListenLayer’s option, defend ListenLayer from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by ListenLayer or authorized by ListenLayer in writing; or (iv) modifications to the Services not made by ListenLayer, provided that Customer may not settle any Third-Party Claim against ListenLayer unless ListenLayer consents to such settlement, and further provided that ListenLayer will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. SECTIONS 8 AND 9 TOGETHER SET FORTH CUSTOMER’S SOLE REMEDIES AND LISTENLAYER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Term and Termination.
(a) Term. This Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the Customer or Authorized User disables the User Account, the Customer cancels its subscription to the Selected Plan or chooses not to renew such subscription upon expiry (i.e., pursuant to the Billing Terms), or the Parties otherwise agree that ListenLayer will cease providing the Services to the Customer or the Authorized User (the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) ListenLayer may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after ListenLayer’s delivery of written notice thereof; or (B) materially breaches this agreement or breaches any of its obligations under Section 2(d) or Section 5; and
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the ListenLayer IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the ListenLayer IP and certify in writing to the ListenLayer that the ListenLayer IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 10(d) and Sections 1, 2, 3, 5 – 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, this Agreement takes precedence. If the Selected Plan causes Customer to incur any fees, Customer has agreed or will agree to abide by Billing Terms for the Selected Plan, and the Billing Terms are incorporated fully herein by reference.
(b) Notices. All notices from one Party to the other Party shall be electronically transmitted using either the messaging functions on Our Website or by email to an email address provided by each Party for that purpose.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification. ListenLayer reserves the right to, and may, amend or modify this Agreement by way of release of a new version of this Agreement, which will be timely communicated to Customer together with means for Customer to electronically accept the new version.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Colorado in each case located in the city of Denver and County of Denver, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of ListenLayer, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(k) Counterparts. This Agreement may be executed electronically and in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.