End User License Agreement (EULA)

THIS IS AN IMPORTANT AGREEMENT THAT APPLIES TO YOUR USE OF THE FORESIGHT PRODUCTS! PLEASE SCROLL DOWN!

THIS EULA GOVERNS YOUR RIGHTS AND RESPONSIBILITIES RELATING TO ACCESS AND USE OF THE SYSTEMS, SOFTWARE AND DOCUMENTATION MADE AVAILABLE BY FORESIGHT. YOU MUST READ AND AGREE TO THE TERMS OF THIS EULA BEFORE YOU MAY ACCESS AND USE THE SYSTEMS, SOFTWARE OR DOCUMENTATION. IF YOU DO NOT AGREE WITH ANY OF THE TERMS BELOW, YOU MAY NOT USE THE SYSTEMS, SOFTWARE OR DOCUMENTATION. BY ACKNOWLEDGING YOUR AGREEMENT TO THE TERMS OF THIS EULA, YOU INDICATE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE LEGALLY BOUND BY ALL TERMS AND CONDITIONS OF THIS EULA – IF YOU ARE UNDER THE AGE OF 18, YOU NEED TO HAVE YOUR PARENT OR LEGAL GUARDIAN READ AND ACCEPT THIS AGREEMENT BEFORE YOU MAY USE THE SYSTEMS, SOFTWARE OR DOCUMENTATION.

This agreement does not include the obligation of Foresight to install, implement, perform custom work, train or perform any other services related to the Systems, Software, or Documentation that is licensed to you under the Licenses associated with this agreement. Foresight is the disclosed principal and sole party to this agreement with you. No employee, officer, agent, distributor, dealer, reseller, solution provider, developer, consultant or other person, is authorized to make any commitments on Foresight’s behalf or otherwise bind the Company.

This end-user license agreement (“EULA”) is an agreement between you and Foresight Sports (and together with its affiliates, "Foresight" or "we" or "our") regarding your use of any Foresight’s System (including hardware) and Software products and services, as well as any systems (including hardware) and software of its affiliates and other authorized providers that is or are integrated with or coupled with any of the foregoing (“Foresight Products”), and provides important information about your Foresight Products. Please read this agreement carefully before using your Foresight Product such as a Smart Camera System or other product (hereinafter "System") or any related software from Foresight Sports (hereinafter "Software") online and any electronic documents provided by us in connection with the Software (“Documentation”). You are agreeing to be bound by the terms of this agreement. If you do not agree to the terms of this agreement, you may not use the System, Software or Documentation and you may return the System or Software for a refund in accordance with the applicable return policy. Use of the System or Software or Documentation without acceptance of this agreement is strictly prohibited.

  1. Software Licenses

Foresight provides three types of licenses for its Software. Your invoice will reflect the type of license you have purchased from Foresight.

  1. PERMANENT LICENSE. If you have purchased a Permanent License, Foresight grants you an irrevocable, limited, non-exclusive, worldwide (except as prevented by US law), non-transferable, non-sublicenseable, license and right to install and use the Software; to permit your affiliates and franchisees to install and use the Software; and to permit your Customers, and your affiliates' or franchisees' respective customers to use the Software; in each case (i) for your own internal business purposes or use, (ii) solely in conjunction with use of the Systems, and (iii) solely according to the Documentation and the terms of this EULA. Your Permanent License is not limited as to location (except as may be prevented by law), length of time, for internal business purposes or personal use, or amount of use. Your Permanent License is registered to a single computer through a variety of metrics that identify your computer. If you replace primary components on your computer, or if you wish to move your license from one computer to another computer, you must deregister your license from the current computer and reregister your license on a new computer.
  2. TEMPORARY LICENSE. If you have been provided with a Temporary License on a trial basis or have purchased a Temporary License, Foresight grants you a revocable, limited, non-exclusive, worldwide (except as prevented by US law) non-transferable, non-sublicenseable, license and right to install and use the Software; to permit your affiliates and franchisees to install and use the Software; and to permit your Customers, and your affiliates' or franchisees' respective customers to use the Software on the terms of this EULA during the period stated in your Invoice. Your Temporary License may be registered to a single computer of single Foresight device (for example, a single Smart Camera System), depending on the type of license you have purchased. If you allow your Temporary License to expire for non-payment of renewal fees or license fees, your license will expire and you will no longer be entitled to use the licensed products.
  3. GEOGRAPHIC LICENSE. If you have purchased or are otherwise an authorized user of a Foresight Product (for, example, a Smart Camera System) with a Geographic License, Foresight grants you a revocable, non-exclusive geographical license which may specify the geographic location(s) in which use of your System is authorized. Your Geographic License requires periodic online activation and confirmation of the geographic location of your System. If your System is used in an unauthorized geographic location, your System's data output capacity will be disabled. Please contact Foresight's customer support to obtain a valid Geographical License for the location of your desired use.
  4. LIMITATIONS.

You may only use the Foresight Products, including any Software, content, and data that came with your System or that is compatible with and authorized for use on your System, and including any Documentation and updates or replacement to that software, content, or data that we or our affiliates or other authorized providers make available to you subject to the terms of this Section. For avoidance of doubt, the Software is licensed, not sold, to you solely for your use.

You will not (a) make the Software available to, or use the Software for the benefit of, anyone other than you (or your customers if applicable), (b) replicate a portion or all of the Software for use by an unlicensed organization (unless a license is obtained by each organization that accesses and uses the Software), (c) sell, resell, license, sublicense, distribute, rent, lease or lend the Software, or include it in a service bureau or outsourcing offering, (d) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights (including in each case, in relation to Customer Data and Output Data), (e) use the Software to store or transmit malicious code, (f) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein, (g) attempt to gain unauthorized access to the Software or its related systems or networks, (h) permit direct or indirect access to or use of the Software in a way that circumvents any contractual usage restriction or limit, (i) copy the Software or any part, feature, function or user interface thereof, other than as allowed under this Agreement including for backup purposes, (j) frame or mirror any part of the Software, other than framing on the Customer’s own intranets or otherwise for the Customer’s own personal use, (k) access the Software for the purpose of monitoring availability or functionality, benchmarking, or otherwise assist with the creation and/or evaluation of any competitive service to the Software, or (l) publish, copy, modify, reverse engineer, decompile, or disassemble any portion of the Software, or bypass, modify, defeat, tamper with, or circumvent any of the functions or protections of your System, unless otherwise permitted by law. In addition, You will not (a) make the Foresight Products (or Systems or Documentation) available to, or use the Foresight Products (or Systems or Documentation) for the benefit of, anyone other than you (or your internal business purposes including customers, if applicable), (b) replicate a portion or all of the Foresight Products (or Systems or Documentation) for use by an unlicensed organization (unless a license is obtained by each such organization), (c) copy, access, or replicate any portion or all of the Foresight Products (or Systems) for the purpose of the creation and/or evaluation of any competitive service to the Foresight Products (or Systems), or publish, copy, modify, reverse engineer, decompile, or disassemble any portion of the Foresight Products (or Systems), or bypass, modify, defeat, tamper with, or circumvent any of the functions or protections of your Foresight Products (or Systems), unless otherwise permitted by law. The System and Software and Documentation, and any services available using the System are constantly evolving, and we may update or change your System or Software or Documentation, in whole or in part, without notice to you. Such updates or changes may be required for you to play new games, enjoy new features, or continue to access services. After your System or Software or Documentation is updated or changed, any existing or future unauthorized modification of the hardware or software of your System, or the use of an unauthorized device in connection with your System, will render the system permanently unusable. Content obtained through the unauthorized modification of the hardware or software of your System will be removed. You agree not to use your System in an unlawful manner or to access the Systems, devices, accounts, Software or data of others (including Foresight Sports) without their (or our) consent.

  1. Output Data; Customer Data.

As between Foresight and you, Foresight owns all Output Data generated from the use of the device such as ball and timing data. Foresight grants you a limited term license to host, copy, transmit (but only to and within the System) and display the Output Data collected by, created by, or created for, you (or your customers if applicable) and collected by, or generated from using the Software, during the applicable term of your applicable license, as necessary for the Customer to use the Software and System in accordance with the applicable Documentation and this EULA; in each case for your use solely in accordance with all applicable laws (including privacy laws). You hereby agree and acknowledge that Foresight may use such Output Data for any purpose including to improve the Software, Systems and/or Documentation. For purposes of this EULA, “Output Data” shall mean any electronic data or information collected by, submitted by or for you (and your customers if applicable) to, the Software or collected and processed by or for you (and your customers if applicable) using the Software, other than your (or your customer’s personal information (if any). Subject to the limited licenses granted herein, Customer acquires no right, title or interest from you under this EULA in or to any Output Data.

As between Foresight and you, you own all data that you enter into the Software or related System (“Customer Data”). You grant Foresight an irrevocable license to host, copy, transmit and display the Customer Data entered by or relating to you and your authorized users and other users that you allow to use the Software and systems (if any) and collected by, or generated from use of the Software, during the applicable term of your applicable license, You hereby consent to and covenant not to sue Foresight for (and shall ensure that any other persons that you allow to use the licensed Software consent to and covenant not to sue Foresight in relation to) the use by Foresight and its affiliates of any and all Customer Data for any purpose.

  1. Feedback.

You also grant the Company a perpetual, irrevocable, royalty-free, fully paid-up, transferable, sublicenseable, and worldwide license to use and incorporate into the Software any suggestion, enhancement request, recommendation, correction or other feedback provided by the Customer or Users relating to the operation of the Software. This license does not grant customer any rights in connection with any trademarks or service marks of the Company.

  1. Use of Personal Information.

We may collect, use and disclose personal information that (a) you provide to us; (b) we collect automatically; and (c) we receive from other sources. Please refer to Foresight's Privacy Policy, located at www.foresightsports.com, for information on how we collect, use and disclose information from our users. The Foresight Privacy Policy applies to all of our products, services and websites. We recommend that you review Foresight Sports' Privacy Policy before each use of a Foresight Product, or related service or website, to help you stay informed of our privacy practices.

  1. Reservation of Rights.

Neither the sale, transfer, license, nor the use of your System or Software or Documentation transfers any title or ownership of any of our intellectual property rights. You have no rights in or to the Software except as expressly granted in this Agreement. Foresight reserves to itself all ownership rights to the Software, Systems, and related Documentation, including all copyright, trademark, patent, and other intellectual property rights in and to the Software, System and Documentation. As between the parties, you acknowledge that the Software, all copies of the Software, any derivative works, compilations, and collective works of the Software, and any know-how and trade secrets related to the Software, and all aspects of the System and Documentation are the sole and exclusive property of Foresight and contain Foresight’s confidential and proprietary materials. Software defects will only be corrected by Foresight under the terms and conditions of the limited warranty provided in this EULA. We reserve all rights that we have not expressly granted in this agreement.

  1. Termination.

Your rights under this agreement will immediately terminate if you do not comply with any term of this agreement. At the time of any termination of this agreement, you will immediately cease all use of the System or Software. Our failure to insist upon or enforce your strict compliance with this agreement will not constitute a waiver of any of our rights.

  1. Extent of and Disclaimer of Warranties; Limitation of Liability.

The warranties related to the licensed Software and Documentation are limited to those found at https://www.foresightsports.com/support, which Foresight may modify from time to time in its sole discretion. No other warranties relating to the licensed Software or Documentation are provided.

OTHER THAN THE WARRANTIES THAT ARE PROVIDED AT THE FORESIGHT WEBSITE LINK INCLUDED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO YOU, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY) ARE PROVIDED AS IS, WITH ALL FAULTS, AND AS AVAILABLE. THE ENTIRE RISK AND LIABILITY IN CONNECTION WITH CLIENT’S USE OF LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO CLIENT, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY) REMAINS WITH CLIENT. FORESIGHT AND ITS AFFILIATES AND SUPPLIERS AND OTHER REPRESENTATIVES HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FORESIGHT ALSO DISCLAIMS, AND THERE IS NO WARRANTY OF, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, CONFORMANCE TO DESCRIPTION, LACK OF VIRUSES OR BUGS, ACCURACY OR COMPLETENESS OF DOCUMENTATION, RESPONSES, RESULTS, MATERIALS OR RELATED SUPPORT, THAT THE LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO YOU, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY) WILL CONTINUE TO BE PROVIDED, WILL OPERATE AT ALL, WILL OPERATE AS INTENDED OR DESIRED, THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY OF THE FOREGOING WILL MEET ANY OF YOUR REQUIREMENTS, OR THAT ANY DEFECTS WILL BE CORRECTED. FORESIGHT MAY DISCONTINUE PROVIDING LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO CLIENT, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY), AND/OR FORESIGHT MAY CHANGE THEIR NATURE, FEATURES AND FUNCTIONALITY AT ANY TIME AND WITHOUT ANY LIABILITY TO YOU. YOUR ACCESS TO AND USE OF THE LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO CLIENT, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY) ARE AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTERS, NETWORKS, AND SYSTEMS AND/OR LOSS OF DATA IN CONNECTION WITH THE USE OF THE LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO CLIENT, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY).

USE OF YOUR SYSTEM OR SOFTWARE IS AT YOUR SOLE RISK. FORESIGHT IS NOT RESPONSIBLE FOR ANY NON-FORESIGHT SITES, SERVICES, APPLICATIONS, CONTENT, DATA, MESSAGES, OR OTHER ITEMS THAT YOU ACCESS, USE, OR SHARE VIA YOUR SYSTEM OR SOFTWARE. EXCEPT FOR ANY LIMITED WARRANTY THAT APPLIES TO YOUR SYSTEM OR SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FORESIGHT OR ITS REPRESENTATIVES CREATES A WARRANTY.

IN NO EVENT WILL FORESIGHT OR ITS AFFILIATES OR SUPPLIERS OR AGENTS OR REPRESENTATIVES BE LIABLE FOR, AND YOU CANNOT RECOVER FOR, ANY SPECIAL, INCIDENTAL, PUNITIVE, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF USE, DAMAGES TO YOUR COMPUTER OR OTHER SYSTEMS, OR LOSS OF GOODWILL, BUSINESS, ANTICIPATED SAVINGS, OR USE, CONFIDENTIAL INFORMATION, OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY OF GOOD FAITH OR REASONABLE CARE, NEGLIGENCE, AND ANY OTHER PECUNIARY OR OTHER LOSS, IN EACH CASE ARISING OUT OF OR IN ANY WAY RELATED TO THE LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO YOU, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY), OR THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION OR THE ALLEGED BASIS OF THE CLAIM AND EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES, AND REGARDLESS OF WHETHER THE REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.

FORESIGHT’S AND ITS AFFILIATES’ AND SUPPLIERS’ ENTIRE LIABILITY UNDER THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY WILL BE LIMITED TO THE ACTUAL DIRECT DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO YOU, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY) OR ANY OTHER PROVISIONS OF THIS EULA, UP TO A MAXIMUM OF $100.00 U.S. DOLLARS ON A CUMULATIVE BASIS FOR ALL SUCH CLAIMS.

NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS EULA MAY BE BROUGHT BY CLIENT MORE THAN ONE YEAR AFTER CLIENT HAS KNOWLEDGE OF THE OCCURRENCE WHICH GIVES RISE TO THE CAUSE OF ACTION. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT, THE LICENSED SOFTWARE, THE DOCUMENTATION, ANY FORESIGHT CONFIDENTIAL INFORMATION PROVIDED TO YOU, AND ALL OTHER MATERIALS AND SUPPORT SERVICES (IF ANY) OR ANY OR YOUR SOFTWARE OR INTEGRATED SOFTWARE OR HARDWARE, WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES IN THIS ARTICLE 11 HEREIN.

  1. Dispute Resolution; Binding Individual Arbitration; Class Action Waiver.
  2. Our consumer services department is available to address any concerns you may have regarding your System or Software. You may contact us at https://help.foresightsports.com/hc/en-us/requests/new. Most matters are quickly resolved in this manner to our customer's satisfaction. Any matter we are unable to resolve and all disputes or claims arising out of or relating to this Agreement, including its formation, enforceability, performance, or breach (each, a "Claim") shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer-related disputes of the American Arbitration Association (the "AAA"), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all Claims. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. Any such arbitration shall be conducted by the parties in their individual capacities only and not as a class action or other representative action, and the parties waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class-action waiver set forth in the preceding sentence is void or unenforceable for any reason or that in arbitration can proceed on a class basis, then the arbitration provision set forth in this Section 6 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate.
  1. You and Foresight agree to the exclusive jurisdiction of the state and federal courts in San Diego County, California to enter and enforce any arbitration award.
  2. You and Foresight hereby agrees that any dispute arising from this EULA, including as relating to the Software, System, Documentation or any other aspect of this EULA or the parties interactions shall be resolved by binding arbitration as specified under Section 8(a) above, and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Foresight Sports are each waiving the right to a trial by jury and the right to participate in a class or multi-party action. This Section 9 herein including the arbitration provisions shall survive termination of these Agreements and the termination of your Foresight Sports account.
  3. YOU AND FORESIGHT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING. Furthermore, no arbitrator shall consolidate any other person's claims with your claims, and may not otherwise preside over any form of a multi-party or class proceeding. If this specific provision is found to be unenforceable in any way, then the entirety of this arbitration section shall be null and void. The arbitrator may not award declaratory or injunctive relief.
  4. Any arbitration must be commenced by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitations period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA's Consumer Rules with the remainder paid by Foresight.
  5. Indemnification.

Client hereby and its affiliates, officers, directors, employees, agents, licensors, suppliers, contractors and agents from and against any and all claims, damages, liabilities, penalties, interest, fines, losses, costs, and expenses, including reasonable attorneys’ fees and costs arising from or relating to: (i) Client’s use of any portion or all of the Software and Documentation licensed by Foresight hereunder, including relating to any damage to property, bodily injury, or death; (ii) Customer Data and its use by any entity including Foresight, (iii) Client’s fraud or willful misconduct; (iv) Client’s breach of any term or condition of this Agreement including the confidentiality provisions under this EULA; or (v) Client’s breach of any applicable law (including any applicable export control laws).

Foresight indemnifies, defends and holds harmless Client from and against any and all claims, damages, liabilities, penalties, interest, fines, losses, costs, and expenses, including reasonable attorneys’ fees and costs arising from or relating to: (i) any third party infringement claims relating to the licensed Software, (ii) Foresight’s negligence, fraud, or willful misconduct; (iii) Foresight’s breach of any term or condition of this Agreement; or (iv) Foresight’s breach of any applicable law (including any applicable export control laws). In relation to Foresight’s indemnity obligations to Client relating to a third party claim for infringement by the licensed Software, (i) upon obtaining knowledge of the infringement claims, Client shall immediately suspend use of the licensed Software and shall continue to abstain from using the software until further notice from Foresight, and (ii) Client hereby acknowledges and agrees that Client’s sole remedy and Foresight’s sole liability is limited at Foresight’s sole option to either (1) rewrite to Software to cause it to be non-infringing, or (2) procure a license from the third party to continue using the licensed Software. If either options (1) or (2) are not feasible or achievable, then Client shall permanently stop using the licensed Software (in which case the license hereunder is immediately terminated).

  1. Miscellaneous.

This EULA shall be governed by and construed in accordance with the laws of the State of Minnesota in the United States, without reference to the rules governing choice of laws or the U.N. Convention on Contracts for the International Sale of Goods. If any part of this agreement is held to be invalid or unenforceable, that part will no longer apply to the parties and will be replaced by an enforceable provision that most closely reflects the original intent of the parties, all other parts of the agreement will remain in effect unless otherwise provided in this agreement. You may not assign or sublicense this EULA without the prior written consent of Foresight. Subject to the terms of Section 8, the parties hereby irrevocably consent to and waive any objection to (or right to object to) the exclusive jurisdiction of the Federal and State courts located in or near Anoka, Minnesota, U.S.A. in relation to any equitable claims and relief and the entering of any order relating to a dispute arising out of or in connection with this Agreement or the transactions contemplated hereby. No waiver of any rights arising under this Agreement shall be effective unless in writing and signed by the party against whom the waiver is to be enforced. No failure or delay by either party in exercising any right, power or remedy under this EULA shall operate as a waiver of any such right, power or remedy. Except for your payment obligations relating to the License under this EULA, neither party shall be liable for any failure to perform or delay in performance if the events and circumstances causing such failure or delay are beyond the reasonable control of the failing or delaying party. This EULA along with the applicable order form constitutes the entire agreement between the parties with respect to the Software, System and Documentation, and supersedes all prior agreements, proposals, representations and undertakings between the parties in relation to the subject matter hereof (whether written or oral) and may not be modified or amended by you without the prior written consent of Foresight.