Last modified: August 2021
If you (“Game Owner”, “you”, “your”, and “yours”) are using our developer services (defined below), by clicking on the “ACCEPT” button, you: (1) are consenting and expressly agree to be bound by and are becoming a party to, (a) the terms of this Developer Agreement (this “Agreement”), and (b) the terms of the Terms of Services located at https://superbiz.gg/terms/ (the “Super Biz Terms”); and (2) you represent and acknowledge that you have read and reviewed the Super Biz Terms and the terms of this Agreement. If these terms are considered an offer, acceptance is expressly limited to the terms of this Agreement and the Super Biz Terms. All capitalized terms used, but not defined, in Section 1 of this Agreement, will have the meaning prescribed to them in the Super Biz Terms.
“Ad Unit” means a 3D billboard, poster or other format for presenting or otherwise displaying Ads pursuant to this Agreement.
“Ads” means materials, messages, or links in any format which promote various brands, products or services, provided to Super Biz by Advertisers for use in the performance of the Services. Ads may or may not be Paid Ads.
“Advertisers” means the Person that provides Ads to Super Biz.
“Applicable Laws” means all applicable federal, state and local laws, statutes, rules, standards, regulations and policies related to the Ads and Deliverables, including without limitation, relating to online and direct marketing, telemarketing, digital and mobile marketing, lead generation and advertising, banking and consumer credit laws, privacy and data protection laws, and other laws related to the Ads and Deliverables.
“Applicable Percentage” means the percentage of Total Net Revenue as set and determined by Super Biz, in its sole discretion, in the determination of the amount of Fees to be paid to Game Owner.
“Super Biz IP” means the Services, Super Biz Confidential Information, Super Biz Marks, and any IP related to all of the foregoing.
“Confidential Information” means any information disclosed by the Disclosing Party to the Receiving Party, either directly or indirectly, in writing, orally, or by inspection of tangible objects, which is designated as “Confidential”, “Proprietary”, or some similar designation, or should reasonably be considered confidential or proprietary without such marking or designation. For purposes of this Agreement, Confidential Information shall not include information the Receiving Party can document: (a) was or has become readily available to the public without restriction through no fault of the Receiving Party; (b) was received without restriction from a third-party lawfully entitled to possess and disclose such information; or (c) was rightfully in possession of the Receiving Party without restriction prior to the Disclosing Party’s disclosure of such information to the Receiving Party. Game Owner hereby acknowledges and agrees Super Biz Confidential Information shall include without limitation, all Super Biz technology, software, platform, source code, trade secrets, programming, specifications, requirements, documentation, contractual terms (including the terms of this Agreement), guidelines, customer information, marketing and business plans, financial information, know-how, and materials relating to the Services, as well as number of clicks, click-through rates, number of impressions, average cost per click, total cost, conversion rates, cost per conversion, statistics, reporting data, general analytics and other output relating to the Games performance in relation to the Services.
“Deliverables” means the type and amount of inventory to be delivered (e.g., impressions, clicks, or other actions) that are a direct result of the Ads in the Games.
“Disclosing Party” means the party disclosing Confidential Information to the other party pursuant to this Agreement.
“Feedback” includes: (a) suggestions for correction, change, or modification to the Services; and (b) evaluation data, reports, or other feedback suggestions, materials, code, programming information or any other information relating to the Services provided, created or developed by Game Owner to Super Biz hereunder.
“Fees” means the amounts to be paid to Game Owner that are on the basis of the set Applicable Percentage of Total Net Revenue, as set forth in Section 5 of this Agreement.
“Flight Date(s)” means the time period in which a specific Ad is to be displayed in the Games. Flight Dates may be provided by Super Biz to Game Owner pursuant to this Agreement.
“Games” means the Game Owner owned, operated, or otherwise controlled games developed by Game Owner and Super Biz, specifically for sharing and playing through Roblox.
“Game Owner IP” means the Game Owner Confidential Information, Game Owner Marks, and any IP related to all of the foregoing.
“IP” means any and all intellectual property including without limitation: (a) tangible and intangible rights, now known or hereafter existing, (i) associated with works of authorship, including without limitation, copyrights, moral rights and mask work rights, (ii) in and relating to the protection of Marks and goodwill, and (iii) in and relating to the protection of trade secrets and Confidential Information; (b) patents, designs, algorithms and other industrial property rights and rights associated therewith; (c) other intellectual and industrial property and proprietary rights relating to intangible property that are analogous to any of the foregoing rights, whether arising by operation of law, contract, license, or otherwise; and (d) registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force throughout the world (including without limitation, rights in any of the foregoing).
“Invalid Actions” means fraudulent, duplicate, or other invalid Deliverables including without limitation: (a) fictitious views; (b) a Deliverable that is a computer generated user, such as a robot, spider, computer script, or other automated, artificial, or fraudulent method designed to appear like an individual, live person; or (c) clicks made by an individual person who is paid or deceptively motivated to click on the Ads.
“Marks” means all trade names, trademarks, service marks, logos, and domain names.
“Paid Ads” means only those Ads which Advertisers provide monetary compensation to Super Biz for display through Games.
“Payment Minimum” means $100 or such other amount Super Biz may designate from time to time.
“Person” means any individual, corporation, partnership, trust, limited liability company, association or other entity.
“Receiving Party” means the party receiving Confidential Information of the Disclosing Party pursuant to this Agreement.
“Roblox” means the proprietary platform, services and site owned and operated by Roblox located at https://www.roblox.com/.
“Services” means Super Biz's game consulting and developer services as more fully described in this Agreement, including without limitation, monetization and brand partnerships within the Games, and all Ads, technology, sales and operations related thereto.
“Term” means the term of this Agreement as set forth in Section 9.
“Total Net Revenue” means the total aggregate revenue generated from Paid Ads in Games during a calendar month based on the Deliverables, which revenue is actually received by Super Biz from Advertisers.
(a) Super Biz will own all right, title and interest to the Super Biz IP. Game Owner will not acquire any right, title or interest in or to any Super Biz IP. Subject to the terms and conditions of this Agreement, Super Biz hereby grants to Game Owner a non-exclusive, revocable, non-assignable, non-transferrable, non-sublicensable, royalty-based (as applicable), limited right and license to use the Services solely as necessary to reproduce (including compression and temporary storage), perform, transmit, and display the Ads only for the Term of this Agreement; and for no other purpose or under any other condition whatsoever. Game Owner will not edit or otherwise modify the Ads or the Super Biz IP, or any component thereof, without the prior written approval of Super Biz, such approval to be determined in Super Biz's sole and absolute discretion. Game Owner may, include that Super Biz is a developer of the Games. In such case, Super Biz hereby grants to Game Owner a non-exclusive, revocable, non-assignable, non-transferrable, non-sublicensable, royalty-based (Super Biz hereby waives the royalty under this Agreement), limited right and license to display the Super Biz Marks in the Games only to detail that Super Biz is a developer of the Games and only for the Term of this Agreement; and for no other purpose or under any other condition whatsoever. Any rights not expressly granted herein are deemed withheld by Super Biz.
(b) Game Owner will own all right, title and interest to the Game Owner IP. Super Biz will not acquire any right, title or interest in or to any Game Owner IP. Subject to the terms and conditions of this Agreement, Game Owner hereby grants to Super Biz all necessary rights to access the Games and/or servers as necessary to provide the Services as contemplated herein. In addition, Game Owner hereby grants to Super Biz a non-exclusive and non-transferable license to include Game Owner's name and Marks and screenshots and images captured by Super Biz of Game Owner using the Services, including without limitation, depicting Ads on display within Games, in marketing materials, presentations, press releases and customer lists. Any rights not expressly granted herein are deemed withheld by Game Owner.
(c) Advertisers will own all right, title and interest to their respective Ads. Except as expressly provided herein or by separate agreement, neither Super Biz nor Game Owner shall acquire any right, title or interest in or to the Ads, regardless of the manner or format in which such Ads are incorporated into the Games.
(a) The Services shall only include Super Biz's consulting and developer services regarding technology, sales and operations to place Ads in the Games. Game Owner may choose (by opting-in or opting-out), which Ads run in the Games. If applicable, Super Biz may include specific Flight Dates of certain Ads.
(b) If applicable, Game Owner shall timely provide Super Biz with access to necessary Ad Unit(s) to allow Super Biz to place Ads in Games. Ads will be in .png or .jpg format or in any other format as determined by Super Biz, in Super Biz's sole discretion, from time to time. Game Owner shall not use third-parties in connection with the Ads, including without limitation, any third-party ad servers. Super Biz retains the right to contract with other companies or entities for services and deliverables that are similar to the Services, Ads and Deliverables described in this Agreement.
(c) In the event Super Biz provides Game Owner with Paid Ads pursuant to which Fees are due, Game Owner shall not be entitled to, and Super Biz shall not be liable for, any payment resulting from: (i) any Deliverable based on Invalid Actions; or (ii) any Deliverable that is not expressly directed by Super Biz under this Agreement. Game Owner agrees that the Flight Date(s) of the campaign as included by Super Biz, may be modified by Super Biz upon notice to Game Owner due to scheduling delays, including without limitation, delays in acceptance of this Agreement, credit approval, delivery of Ads, etc.
(d) The parties agree that any and all traffic or other data to be provided in connection with this Agreement, including without limitation, Fees (if applicable), click-through rates, impressions delivered, actions/acquisitions delivered, positioning and placement of Ads will be solely based upon the Super Biz reporting systems and analytics in determining Game Owner’s performance pursuant to this Agreement.
(a) Game Owner will use best efforts to uphold the highest ethical and commercial standards. During the Term of this Agreement, Game Owner may not place or allow the placement of any ad or other material in Games that contain, promote, reference or have links to: (i) profanity, sexually explicit material, hate material, defamatory, libelous, slanderous, offensive, insensitive, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status, illegal activities or advice, or any other material deemed by Super Biz to be unsuitable or harmful to Super Biz's reputation; (ii) web pages with no content; (iii) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking, content unlockers, emulators/ROMs, or violations of the IP or privacy rights of others; (iv) intentionally deceptive acts or practices; (v) personal web pages, free hosted pages or websites under construction; (vi) charity clicks/donations, paid to surf, Active X downloads, all affiliate links or incentivized traffic where users have some sort of incentive to click on the Ads; (vii) targets persons less than 13 years of age; (viii) websites or web pages that do not comply with the Children’s Online Privacy Protection Act (“COPPA”), Children’s Advertising Review Unit (“CARU”) or the Children’s Food and Beverage Advertising Initiative (“CFBAI”); or (vix) activities generally understood as Internet abuse, including without limitation, the sending of unsolicited bulk electronic mail or the use of spyware. Game Owner understands and agrees Super Biz may turn off the Ads (or the links contained in the Ads) at any time, in Super Biz's sole and absolute discretion, if Super Biz believes there may be harm or other damage to Super Biz or the Advertisers or their respective reputations.
(b) Game Owner hereby agrees, represents and warrants that it will: (i) use the Services, including without limitation, the Ads, only for lawful purposes and in accordance with this Agreement and all Applicable Laws, including all applicable Roblox policies and terms; (ii) add to the description of the Games, and related terms and policies as necessary, that (A) the Games may contain Paid Ads, and/or (B) any other description as provided by Super Biz from time to time; and (iii) if Game Owner receives any requests or other notices from Roblox, including without limitation, requests to delete personal information from the Games, Game Owner will immediately forward or otherwise pass along such requests and other notices in writing to Super Biz.
(c) Game Owner understands and agrees that, as Ads are provided to Super Biz by Advertisers, Super Biz shall not have any responsibility, obligation or liability of any kind and for any reason for any content in such Ads and any recourse for damages of any kind incurred by Game Owner due to or that result from Game Owner’s use of any such Ads shall be brought by Game Owner against the respective Advertiser only, and not against Super Biz.
(d) Game Owner hereby represents and warrants that it will not itself, nor will it authorize any third-party to, directly or indirectly: (i) generate impressions and/or clicks on any Ads through any Invalid Actions; (ii) reverse engineer, disassemble, or decompile any Super Biz IP; (iii) interfere or attempt to interfere with the proper working of the Services; (iv) intercept or expropriate any system data or personal information from the Services, or prevent others from using the Services by any means, including without limitation, uploading or making available materials that contain viruses, worms, or other programming routines that are designed to, and may potentially, interrupt, destroy, and/or limit the functionality of any computer software or hardware or telecommunications equipment; (v) use the Services for any fraudulent or unlawful purposes; or (vi) improperly access or query any Super Biz server.
(e) Game Owner further represents and warrants to Super Biz that: (i) it has all necessary rights and permissions to offer, sell and/or license the products and services through the Ads in the Games; (ii) the Games do not and will not violate any Applicable Laws, any IP rights of any third-party or any applicable Roblox terms and policies; (iii) it has complied with all Applicable Laws, including any applicable Roblox policies and terms; and (iv) it has the legal right to use any Mark used by Game Owner in connection with this Agreement.
(f) Game Owner understands and agrees that nothing will restrict or limit Super Biz's right to profit from, disclose, publish, keep secret, or otherwise use in any manner and for any purpose Feedback, without compensating or crediting Game Owner or any individual providing such Feedback. Game Owner acknowledges and agrees that Super Biz owns all right, title and interest in and to all Feedback.
(a) Super Biz may, from time to time and in its sole discretion, provide payment of Fees to Game Owner based on the Applicable Percentage of Total Net Revenue generated from Deliverables. The payment of Fees is only applicable to Game Owner if Ads delivered by Super Biz are Paid Ads.
(b) Game Owner understands and agrees that: (i) the Applicable Percentage is set by Super Biz in its sole discretion and may be modified from time to time; (ii) Super Biz is under no obligation to offer placement of Paid Ads to Game Owner; and (iii) if Fees are paid, Super Biz will determine how to measure and quantify the Deliverables and the determination of Fees will be based on Super Biz's measurements, which shall be final; provided, however, that in the event Super Biz agrees to a set Applicable Percentage with Game Owner during the Term of this Agreement, Super Biz may enter into a separate written order form with Game Owner setting forth such Applicable Percentage.
(c) In the event that Super Biz provides Paid Ads to Game Owner and agrees to pay Fees to Game Owner, the following provisions will apply:
(i) Any Fees due to Game Owner will be paid to Game Owner within sixty (60) days following receipt of payment by Super Biz from the respective Advertisers. Super Biz shall pay Game Owner via Paypal, Bankwire, or as otherwise specified by Super Biz. Super Biz will use commercially reasonable efforts to collect all Fees due and payable by Advertisers. Notwithstanding the foregoing, Game Owner agrees that Super Biz shall be liable for Fees solely to the extent proceeds have cleared from the Advertiser to Super Biz for Ads displayed in accordance with this Agreement.
(ii) Game Owner understands and agrees that in no event shall Super Biz be liable to Game Owner for any Fees based on any amounts that resulted from Invalid Actions, as reasonably determined by Super Biz, or any clicks or impressions originating from Game Owner IP addresses or computers under Game Owner ownership or other control.
(iii) Payment of Fees will only be required by Super Biz upon Game Owner’s achievement of the Payment Minimum. For clarity, if the Payment Minimum is set at $100, Super Biz will not be obligated to pay Game Owner until Fees due to Game Owner exceed $100. Game Owner understands and agrees that Super Biz does not guarantee that Game Owner will ever reach the Payment Minimum during the Term. In the event this Agreement is terminated (other than for Game Owner’s uncured material breach of this Agreement), before the Payment Minimum is achieved, Super Biz will pay Game Owner any Fees due to Game Owner pursuant to Section 5(c)(i) above.
(iv) To ensure proper payment of Fees, Game Owner is solely responsible for providing and maintaining accurate contact, payment and account information. Any bank fees related to returned or canceled checks due to an account information error or omission may be deducted from the newly issued payment. In the event of any breach by Game Owner of any material rights of Super Biz under this Agreement, Game Owner agrees Super Biz shall have the right, in its sole and absolute discretion, to either withhold payments to Game Owner or decrease the Fees owed to Game Owner.
(v) If Game Owner intends to dispute any payment of Fees made by Super Biz pursuant to this Agreement, it must notify Super Biz in writing within thirty (30) days of any such payment due date. Failure to timely notify Super Biz shall result in the waiver by Game Owner of any claim it has relating to any such disputed Fees.
(a) The Receiving Party hereby agrees not to use any Confidential Information for any purposes whatsoever except as to perform it duties under this Agreement. The Receiving Party hereby agrees not to disclose Confidential Information to any third-party except to an employee or advisor who has a need to know such Confidential Information in order to perform its duties under this Agreement, and who is bound by confidentiality obligations and restrictions at least as protective as this Agreement. The Receiving Party shall be fully liable and responsible for any employee or advisor who breaches the terms of this Agreement, including without limitation, these confidentiality provisions. The Receiving Party shall not disassemble, reverse engineer, or otherwise decompile any of the Disclosing Party’s Confidential Information. If the Receiving Party is required by legal process to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall not be in breach of this Agreement, but shall provide the Disclosing Party with prompt written notice thereof so the Disclosing Party may seek a protective order or other appropriate remedy to prevent or limit disclosure of its Confidential Information. The Receiving Party shall reasonably cooperate with the Disclosing Party’s application for a protective order or other remedy, and the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
(b) The Receiving Party hereby agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Disclosing Party’s Confidential Information. Without limiting the foregoing, the Receiving Party shall take at least those measures that the Receiving Party takes to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information.
Game Owner shall indemnify, defend and hold Super Biz, its Advertisers, partners, agents, and affiliates, as well as Super Biz's respective officers, directors, and employees harmless from and against any claim, suit, action, and all damages resulting from or arising out of: (a) any third-party claim the Games, including without limitation, any claim that the Games infringe, violate, or misappropriate any IP or other right of any third- party under the laws of any jurisdiction; and (b) any breach or violation of this Agreement or any breach of the representations, warranties, and covenants made by Game Owner herein. Super Biz reserves the right to, at Game Owner’s expense, assume the exclusive defense and control of any matter for which Game Owner is required to indemnify Super Biz, and Game Owner agrees to fully cooperate with Super Biz's defense of such claims. Game Owner shall not be required to indemnify Super Biz to the extent a claim results from the gross negligence or willful misconduct of Super Biz or its Advertisers, partners, agents, affiliates, officers, directors and employees.
(a) EXCLUDING GAME OWNER’S INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS DESCRIBED IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST DATA, LOST PROFITS, LOST REVENUE OR COSTS OF PROCUREMENT OF SUBSTITUTIVE GOODS OR SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY, AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SUPER BIZ'S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT (WHEN AGGREGATED WITH SUPER BIZ’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF THIS AGREEMENT) EXCEED THE NET AMOUNT PAID BY SUPER BIZ TO GAME OWNER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ARISES.
(b) GAME OWNER ACKNOWLEDGES THAT SUPER BIZ MAY, IN ITS SOLE DISCRETION, VERIFY OR MONITOR ADS FOR COMPLIANCE OF APPLICABLE LAWS AND/OR ROBLOX POLICIES. NOTWITHSTANDING THE FOREGOING, GAME OWNER AGREES THAT SUPER BIZ SHALL NOT BE LIABLE TO GAME OWNER FOR ANY DAMAGES RELATED TO THE ADS, INCLUDING WITHOUT LIMITATION, ANY ACTION TAKEN BY ROBLOX FOR NON-COMPLIANT ADS.
The term of this Agreement will continue: (a) until terminated by either party for any or no reason upon sixty (60) days prior written notice to the other party; (b) if Flight Dates are specified by Super Biz, upon completion of all Flight Dates; or (c) until as otherwise earlier terminated pursuant to this section (collectively, “Term”). Super Biz reserves the right to terminate this Agreement immediately if Game Owner violates any portion of this Agreement. Upon expiration or termination of this Agreement, the following shall immediately occur: (x) the license to the Services and Super Biz Marks shall immediately terminate and revert to Super Biz; (y) Game Owner shall immediately cease from using all Services, including without limitation Ads, and shall deactivate any included links; and (z) each party shall immediately cease using, promptly return, and purge its files of all material and any Confidential Information received from the Disclosing Party. Except for Game Owner’s breach of this Agreement, upon expiration or termination of this Agreement, Game Owner shall be entitled to payment of Fees (if applicable) incurred prior to the effective date of expiration or termination. Any such payment shall constitute full settlement of any and all claims of Game Owner of every description against Super Biz. Any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
(b) No modification of this Agreement shall be binding unless in writing and signed by duly authorized officers of both parties. The rights of Super Biz under this Agreement shall not be deemed waived except as specifically stated in a writing signed by a duly authorized officer of Super Biz.
(c) If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. Furthermore, in lieu of any such invalid or unenforceable term or provision hereof, the parties shall add as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible to be valid and enforceable.
(d) Game Owner may not resell, assign, or transfer any of its rights or obligations hereunder without Super Biz's prior written approval of its duly authorized representative. Super Biz shall be allowed to assign or transfer any of its rights or obligations hereunder upon written notice to Game Owner. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted transferees, successors and assigns. The relationship of the parties is one of contract only, and in no event will the parties be construed as partners, joint venturers, agents or principals of each other.
(e) This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law provisions. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International State of Goods and the Uniform Computer Information Transactions Act. In the event of any dispute or difference arising out of or relating to this Agreement, its validity, performance and termination, or the breach thereof, the parties shall use their best efforts to settle such disputes or differences in good faith negotiations, keeping in mind their mutual interests, in order to reach an equitable solution satisfactory to both parties. If the parties do not reach a solution in a period of thirty (30) days or such longer period as mutually agreed to by the parties, then the disputes or differences shall be finally settled in arbitration in Nassau County, New York. The arbitration shall be administered by Judicial Arbitration and Mediation Services/Endispute, Inc., pursuant to its Streamlined Arbitration Rules and Procedures. The decision of the arbitrators shall be final and shall be enforceable in any court of competent jurisdiction. The prevailing party shall be entitled to recover the costs, including reasonable attorneys’ fees and/or collection fees, in any claim or action arising out of or relating to this Agreement.
(f) All notices from Super Biz to Game Owner shall be sent to Game Owner’s account with Super Biz. All notices from Game Owner to Super Biz shall be sent to firstname.lastname@example.org. Any notice required to be delivered under this Agreement shall be deemed delivered: (i) three (3) days after deposit in U.S. mail, return receipt requested; (ii) one (1) business day if sent by overnight courier service; and (iii) immediately if sent electronically or by fax or delivered in person.
(g) Super Biz shall have the right to seek a preliminary injunction or other equitable relief if, in its sole judgment, such action is necessary to avoid irreparable damage. Such injunctive or equitable action shall be brought within the state and federal courts in Nassau County, New York. The parties expressly and irrevocably consent to the exclusive personal jurisdiction and venue of any state or federal court in Nassau County, New York, for any claim or action arising out of or relating to this Agreement.