Effective Date: January 1st, 2024
YOU FORMALLY ACCEPT THIS AGREEMENT WITH Insitio, INC. (“Insitio”) BY DOING ANY OF THE FOLLOWING: (1) Using Insitio’s websites, software, tools, or services (the “Services”); (2) selecting an accept or confirm option in a Insitio website or app; or (3) accepting a Insitio order form that incorporates the terms of this Agreement. If you accept this Agreement on behalf of a business or organization, you represent that you have all necessary authority to enter this Agreement on behalf of that business or organization and any of its affiliates. Insitio makes the Services available only pursuant to an Agreement; if you do not accept this Agreement you may not use the Services.
IMPORTANT NOTICE ABOUT DISPUTES: This Agreement includes a provision that any disputes will be decided by mandatory binding arbitration and that you knowingly waive the right to participate in class action litigation to resolve any disputes. Review the provisions below for more details. These provisions are essential to this Agreement and if you do not agree to these provisions you may not use the Services.
1. SERVICES; PERMITTED PURPOSE
1.1 Insitio uses reasonable efforts to provide the Services. The Services, including user-facing features and functionality, are subject to changes and updates over time at Insitio’s discretion, and this may occur during the term of your Agreement. Limitations, features, and information about other relevant aspects of the Services may be presented in the Services themselves and may not always be described in this Agreement.
1.2 Users of the Services must be at least 18 years of age; the Services are not intended for minors.
1.3 The Services are offered solely for the purpose of assisting businesses, including the members of their sales teams and other staff that support sales for client outreach, in their efforts to prospect, perform competitive intelligence research, and otherwise prepare their go to market teams for sales actions. This is the sole “Permitted Purpose” for the Services. All other uses not directly related to the Permitted Purpose are forbidden, and users may not access the Services for any other purpose. You agree to the purpose limitation.
2. USER ACCOUNTS
2.1 The Services are, in whole or in part, only accessible by users who have created an account (your “Account”). You are responsible for your Account, including all activities or actions taken using your Account, including any unauthorized use of your Account. You agree not to share, sell, loan, or disclose the use of your Account or your login credentials with anyone. You are solely responsible for safeguarding your Account login credentials and for following best practices with respect to Account security and password strength.
3. PROHIBITED USES
3.1 The Services are intended for use in the lawful and ethical business practices of users. The Services may not be used for any purpose that is illegal, unlawful, deceptive, misleading, untrue, libelous, defamatory, abusive, threatening, obscene, hateful or discriminatory. The Services may not be used to pursue any unfair business practice, advocate for violence, violate the privacy interests of any individual, or threaten the safety or physical security of any person or place.
3.2 Use of the Services is limited to activities that in no way disrupt or interfere with the operation of the Services and the technical and network infrastructure used to provide the Services.The Services may not be accessed through any automated technical process (such as a script), or incorporated into or linked to the software applications of any third party without Insitio’s written consent. You agree not to take action, directly or indirectly, to expose the Services to any sort of malicious software or code, including viruses, Trojan horses, spyware or any other such code. You agree not to breach or attempt to breach the security of the Services or any hardware, software, networks, or content stored in or associated with the Services, including components or systems operated by any third party.
4. USER DATA
4.1 When you use the Services, you will share data with Insitio, which Insitio will collect using automated functions in our website and in our applications, when you submit any materials into our Services, or when our Services are integrated with the services of third-parties that link your accounts and data from third-party services or websites (together, the “User Data”). By using the Services you agree to all the integrations that comprise the Services. You may choose to use optional integrations, which if you enable, will share additional User Data with Insitio. We will use User Data to offer the Services to you and as otherwise described in this Agreement or in other disclosures.
4.2 You are responsible for the User Data you share with Insitio. You agree to not share any data that is confidential or which you are prohibited from sharing. You agree not to share any data that violates the legal rights, including the intellectual property rights, of any party. You understand that Insitio has not agreed to keep any User Data confidential and any disclosure of User Data does not violate this Agreement or any other obligation Insitio owes to you. You further agree that by using the Services or by sharing User Data with Insitio through any means, you do thereby grant Insitio an irrevocable, perpetual, non-exclusive, transferrable, sublicensable, royalty free, worldwide license to use, modify, reproduce, adapt, sell, distribute, perform, publish, create derivative works based on, publicly display, and otherwise exploit all or any portion of User Data for any purpose whatsoever, without restriction, compensation to you or attributing the User Data to you.
4.3 You agree that you are responsible for any damages, claims or losses that Insitio incurs as a result of the User Data.
4.4 If you choose to stop sharing User Data with Insitio, you understand that you must stop using the Services and disable any optional integrations. You may contact info@Insitio.ai to delete your account and User Data if you wish.
5. Insitio DATA
5.1. As between you and Insitio, all right, title, and interest in the Services are the exclusive property of Insitio. Any data made available to you through the Services is the property property of Insitio, and your access and ability to use any such data is at Insitio’s sole discretion and may be withdrawn by Insitio at any time.
6. FEES AND PAYMENTS
6.1 Fees. You shall pay the Fees, if any, according to the payment terms in the Order Form. Insitio shall issue all invoices electronically and all fees shall be based upon the price, and payment terms stated in the Order Form. A User shall constitute a single license identifiable by email on the Insitio platform.
6.2 Failure to Pay. If you fail to pay any amount due under the Agreement according to the payment terms in the Order Form, Insitio may, in its sole discretion, suspend or restrict the Services. Insitio may charge interest at a monthly rate equal to the lesser of 1% per month or the maximum rate permitted by applicable law on any overdue Fees, from the due date until the date the overdue amount (plus applicable interest) is paid in full. You shall be responsible for the payment of all costs of collection, including without limitation, reasonable attorney fees.
6.3 Taxes. The Fees stated in any order do not include any local, state, provincial, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges (“Taxes”). You are responsible for paying all Taxes arising from or related to the Services. If Insitio determines that Insitio has the legal obligation to pay or collect Taxes, Insitio will add such Taxes to the applicable invoice and you will be obligated to pay such Taxes, unless you provide Insitio with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues Insitio for unpaid Taxes for which you are responsible under the Agreement and which you did not pay to Insitio, Insitio may invoice you and you will be obligated to pay such Taxes to Insitio or directly to the taxing authority, plus all applicable interest, penalties, and fees.
7. REPRESENTATIONS AND WARRANTIES
7.1 You represent and warrant to, as an essential part of this Agreement, each of the following, without modification or exception:
(a) You are authorized to enter this Agreement – and if you represent a business or organization, you are authorized to enter this Agreement on behalf of that business or organization;
(b) You have all necessary rights to provide us with access to the User Data you share by using the Services; and
(c) All User Data, and any other materials you input or use on Insitio platform or together the Services is your property does not infringe on or violate the intellectual property of any third party.
8. INDEMNITY
8.1 You agree to indemnify, defend, and hold harmless Insitio and its affiliates, together with each of their officers, directors, employees, agents, contractors, partners and representatives, from and against any losses, liabilities, fines, costs, claims, actions, or demands (each a “Claim”), including, without limitation, legal fees and expert and consulting fees arising from or related to (a) your breach of this Agreement; (b) your uses of the Services in any way that violates the rights or interests of any third party; (c) your negligent acts or omissions; or (d) your violation of any applicable law or regulation. In the case of any such indemnification, Insitio shall retain control of the defense of any such Claim, except you retain discretion to enter any agreement requiring you to pay money to settle a Claim. You agree that this indemnity obligation will survive this Agreement and your use of the Services.
9. COMPLIANCE AND MONITORING
9.1 You agree to use the Services, including without limitation Insitio Data, in compliance with this Agreement and all applicable laws, rules and regulations, including without limitation, privacy laws, rules and regulations. To the extent required by applicable law, you will maintain a publicly available and easily accessible privacy policy that (i) complies with applicable privacy laws and regulations, and (ii) comprehensively, clearly and accurately describes your collection, use, sharing, protection and other processing of personal information in connection with your use of the Services. You will ensure the content of your privacy policy remains consistent with this Agreement, Insitio’s Privacy Policy, and your use of the Services.
9.2 You are solely responsible for any communications between you and any individual or business you contact with the direct or indirect use or assistance of the Services. You shall communicate with such individuals in compliance with applicable laws, rules and regulations. Without limitation of the foregoing, to the extent required by applicable law, you shall (i) allow individuals to opt out of receiving marketing emails, text messages or other communications from you, (ii) maintain exclusionary lists relating to individuals who wish not to receive marketing communications from you, and (iii) comply with applicable do-not-call and do-not-email lists.
9.3 In the event a law, regulation, enforcement action, investigation, litigation or claim, or any other circumstance, is reasonably likely to adversely affect your ability to comply with this Agreement, you agree to promptly notify Insitio and take reasonable and appropriate steps to prevent or remedy any non-compliance, or promptly cease your use of the Service and processing of any portion of Insitio Materials. Insitio may, at any time and without prior notice to you or penalty of any kind to Insitio, suspend, modify, or terminate your access to or use of any or all of the Services for any reason, in its sole discretion, including if Insitio believes or concludes that you have violated this Agreement, or otherwise chooses to take such action for its benefit or the benefit of the Services.
9.4 You acknowledge and agree that Insitio will have the right to monitor your use of the Services and your compliance with this Agreement. You must not interfere or attempt to interfere with such monitoring. Upon request from Insitio, you agree to make available to Insitio all information and materials reasonably necessary to demonstrate compliance with this Agreement, and allow for and contribute to audits and inspections conducted by or on behalf of Insitio relating in any way to your compliance. You shall reasonably cooperate with any such request, monitoring or inspection initiated by Insitio. Insitio may ask you to validate or certify your continued compliance with this Agreement. Failure to validate or self-certify your compliance upon request from Insitio may result in Insitio revoking your access to the Services, or requiring you to promptly delete Insitio Materials in your possession, custody or control.
9.5 We may request that you delete the personal information of individuals who have requested that their personal information be deleted. Upon request from Insitio, you agree to take all reasonable and appropriate steps to promptly and securely delete the relevant Insitio Materials in your possession, custody or control.
10. INTELLECTUAL PROPERTY
10.1 The “Insitio Materials” are comprised of all the materials that are part of, incorporated in, and provided with the Services, including, without limitation, software, design elements, text, graphics and images, trademarks, service marks, logos and any other intellectual property, but specifically excluding User Data. Insitio Materials are the property of Insitio and its third-party licensors, as applicable. Subject to this Agreement, and payment of any Fees, if applicable, we grant you a personal, nontransferable, non-sublicensable, non-exclusive license that is revocable by Insitio at any time, to use the Services solely for the Permitted Purpose in accordance with this Agreement. We may revoke this license at any time for any or no reason by terminating your subscription to the Services. You may not sell or distribute any Insitio Materials or otherwise use the Insitio Materials in a manner not expressly permitted in this Agreement without Insitio’s written authorization.
10.2 The Services may contain certain content from third parties which may be subject to its own additional license terms and policies (“Third Party Materials”).Using Third Party Materials may subject you to the terms and limitations required by any such third party. You should refer to the terms and policies posted on third party websites prior to using any such Services, and in any event you use such Third Party Materials solely at your own risk. Insitio does not endorse, oppose or edit any opinion, claim, or analysis expressed by any third party. Insitio does not warrant the accuracy, reliability, availability, legality, safety, compatibility, or any other quality of any Third Party Materials. You agree that Insitio is not in any way responsible for Third Party Materials accessible through the Services and you understand that you bear all risks associated with your access to or use of such materials.
10.3 The Services contains our intellectual property and that of other third parties and is protected by U.S. and international copyright law and other intellectual property laws. Unauthorized reproduction or distribution of the Services or Insitio Materials, in whole or in part, without our express written consent, may result in civil and criminal penalties, and may be prosecuted to the maximum extent possible under law. The publication or dissemination of any Insitio Materials or the Services, without our express, written consent is prohibited and may result in termination of your rights to use or access the Services. Unless otherwise explicitly stated in this Agreement, we do not provide you with any right to our intellectual property rights, or those of a third party, whether by estoppel, implication, waiver or otherwise, and all rights are hereby reserved by Insitio.
10.4 You agree not to modify, alter, remove, or deface any of the trademarks, service marks or other intellectual property made available by us in connection with the Services. You agree not to use any Insitio Materials for any purpose other than the Permitted Purpose set out in this Agreement. You agree not to defame or disparage us, our trademarks or service marks, or any aspect of the Services. Unless otherwise specifically agreed in writing by Insitio, you agree not to adapt, translate, modify, decompile, disassemble, copy, create derivative works of, or reverse engineer the Services or any software or programs used in connection with the Services.
11. MANDATORY BINDING ARBITRATION AGREEMENT
11.1 Mandatory Arbitration. YOU AND Insitio AGREE TO SUBMIT ANY AND ALL DISPUTES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES (each, a “Dispute”) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). You and Insitio waive the right to a trial by jury and any right to have a Dispute heard in court. Notwithstanding the foregoing, both you and Insitio retain the right to bring an individual action in small claims court (if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis) and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of either party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
11.2 In arbitration, Disputes are resolved by a neutral arbitrator instead of a judge or jury, discovery is more limited than in court, and the arbitrator's decision is subject to limited review by courts. The arbitrator can award on an individual basis the same damages and relief as a court, including monetary damages, injunctive relief, and declaratory relief. Judgment on the arbitrator's award may be entered in any court having jurisdiction thereof. A single arbitrator with the American Arbitration Association ("AAA“) will conduct the arbitration, and the award may not exceed the relief allowed by applicable law. The arbitration will be conducted in the county of your residence or another mutually agreed location, provided that if the value of the relief sought is $10,000 or less, you or Insitio may elect to have the arbitration conducted by telephone, by virtual internet-based video meeting, or based solely on written submissions, which election will be binding on you and Insitio, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you or Insitio may attend by telephone or virtually, unless the arbitrator requires otherwise. The AAA's Commercial Arbitration Rules will apply. The AAA's rules and a form that can be used to initiate arbitration proceedings are available at https://www.adr.org/. You and Insitio agree that if for any reason AAA will not conduct or becomes unavailable to conduct the arbitration, then a court may appoint a substitute arbitrator, and further agree that the choice of AAA as a forum is not integral to the Arbitration Agreement.
11.3 The arbitrator will decide all issues relating to the enforceability, interpretation, scope, and application of this Arbitration Agreement (including “gateway” issues of arbitrability, whether the Arbitration Agreement is unconscionable or illusory and any defense to arbitration), and this Agreement, except that a court will resolve any question regarding the validity or enforceability of the class action waiver set forth in subsection 4 of this Section setting out the Mandatory Binding Arbitration Agreement. The term "Dispute“ and the requirement to arbitrate will be broadly interpreted.
11.4 Class Action Waiver. You and Insitio agree that the arbitration will be conducted solely on an individual basis and not on a class, representative, consolidated, or private attorney general basis. A Dispute may not be consolidated with a claim brought or discovery by any person or entity that is not a party to the arbitration proceeding. The arbitrator may not award relief to any person or entity other than a party to the arbitration proceeding and may only award such relief as is necessary to provide relief to a party to the arbitration proceeding. If a court deems any portion of this subsection 4 invalid or unenforceable, then subsections 1 and 3 of this Arbitration Agreement will be null and void.
11.5. Fees and Costs in Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
11.6. Non-Arbitration Class Action and Jury Waiver. You and Insitio agree that if for any reason a Dispute proceeds in court rather than arbitration: (1) you and Insitio waive any right to a jury trial; (2) the Dispute will proceed solely on an individual, non-class, non-representative basis; and (3) neither you nor Insitio may be a class representative or class member or otherwise participate in any class, representative, consolidated, or private attorney general proceeding.
11.7. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF YOU OPT OUT OF THIS ARBITRATION AGREEMENT WITHIN 30 DAYS FROM THE EARLIER OF: (1) THE DATE YOU ACCEPT THIS AGREEMENT, OR (2) THE DATE YOU FIRST AGREED OR ASSENTED TO AN AGREEMENT WITH Insitio THAT CONTAINED AN ARBITRATION PROVISION. The opt-out notice must be postmarked no later than the applicable deadline and mailed to: info@insitio.ai. The opt-out notice must state that you do not agree to this Arbitration Agreement and must include your name, address, phone number and email address. This procedure is the only way you can opt out of this Arbitration Agreement, and failure to comply strictly with this procedure and the applicable deadline automatically will render the opt-out notice null and void. If you opt out of the arbitration provision, all other parts of this Arbitration Agreement will continue to apply.
12. WARRANTY DISCLAIMER
12.1 YOUR USE OF THE SERVICES ARE AT YOUR OWN RISK. THE SERVICES, INCLUDING ALL SERVICES AND CONTENT, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE MAKE NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES, INCLUDING ALL Insitio DATA, SERVICES, MATERIALS, INFORMATION, SOFTWARE, FUNCTIONS, PROCESSES, OR OTHER CONTENT PROVIDED OR REFERENCED HEREIN.
12.2 WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DISCLAIM ALL WARRANTIES RELATING TO THE AVAILABILITY, ACCURACY, SECURITY, PRIVACY, CONFIDENTIALITY, APPROPRIATENESS, RELIABILITY, COMPLETENESS, OR TIMELINESS RELATING TO THE SERVICES. WE DISCLAIM ANY WARRANTY THAT THE SERVICES OR SERVICES WILL BE UNINTERRUPTED, NOT DELAYED OR SUSPENDED, UNCHANGED, OR ERROR OR VIRUS FREE, OR THAT WE WILL CORRECT ANY DEFECTS. WE MAKE NO REPRESENTATIONS THAT THE MATERIALS CONTAINED WITHIN THE SERVICES ARE APPROPRIATE FOR USE OUTSIDE THE UNITED STATES.
13. LIMITATION OF LIABILITY
13.1 EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE DAMAGES, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, BUSINESS REPUTATION, BUSINESS OPPORTUNITIES OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES, OR ANY Insitio DATA, INFORMATION, OR SERVICES PROVIDED FOR ON OR BY THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF YOU HAVE NOTIFIED US ABOUT SUCH DAMAGES, OR FOR ANY CLAIMS BY ANY THIRD-PARTIES. IN NO EVENT WILL Insitio’S AGGREGATE LIABILITY TO YOU, DIRECT OR OTHERWISE, EXCEED ONE HUNDRED DOLLARS ($100).
13.2 Insitio IS NOT LIABLE FOR THE ACCURACY, COMPLETENESS, AVAILABILITY OF THE SERVICES, Insitio DATA OR SERVICES. THE CONTENT OR MATERIALS APPEARING ON OUR SITE MAY INCLUDE TECHNICAL, TYPOGRAPHICAL, OR PHOTOGRAPHIC ERRORS. Insitio.AI IS NOT RESPONSIBLE FOR THESE ERRORS.
Some states may not allow certain limitations and exclusions of liability, so the above limitations or exclusions may not apply to you. In such states, our liability to you shall be limited to the greatest extent permitted by law.
14. DMCA NOTICE
14.1 We are committed to complying with the Digital Millennium Copyright Act of 1998. Please contact us at info@insitio.ai if you believe that the Services contain content that infringes on your copyright. In your message, please include:
(a) A signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) sufficient detail regarding the copyrighted work that you believe has been infringed, or a representative list if you claim multiple such works in a single notification;
(c) Identify the allegedly infringing material that is to be removed or access disabled, and information reasonably sufficient to permit Insitio to locate the material;
(d) Sufficient contact information to permit Insitio to contact you, including a name, address, telephone number and email address;
(e) If possible, provide information sufficient to allow Insitio to notify the owner or administrator of the allegedly infringing content;
(f) The following statements:
`(i) "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
(ii) "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
15. RIGHT TO DELETE DATA AND TERMINATE THIS AGREEMENT
15.1 You are responsible for reviewing User Data for your business needs and for compliance with this Agreement. We may remove, disable, or restrict access to or the availability of any User Data from the Services that violates this Agreement, in our sole and unlimited discretion.
15.2 Insitio may terminate or suspend your access to all or part of the Services, temporarily or permanently, for any reason, with or without notice to you.If you have prepaid for services, Insitio may provide you with a pro rata refund for any pre-paid amounts, except in cases where you have breached any agreement, representation, or warranty made in this Agreement. Upon termination of this Agreement for any reason, your license to access or use the Services in any way will terminate, you shall immediately cease use, and you shall immediately destroy any and all Insitio Materials. Upon request, you shall confirm in writing that you have complied with all destruction obligations within 5 days of that request.
16. NOTICES
Notices to Insitio under this Agreement shall be delivered by email to info@insitio.ai.
Insitio may provide notice to you using (i) the contact information associated with your Account, (ii) the Services, (iii) your Account, (iv) email, (v) mail, (vi) courier, or (vii) overnight delivery service.
17. ADDITIONAL TERMS
17.1 This Agreement is the entire agreement between the Parties and supersedes all prior agreements and understandings, oral or written. All prior agreements, understandings and representations are canceled in their entirety. All amendments, alterations, or modifications will be in writing.
17.2 If any provision is held unenforceable or invalid, the balance of any such provision will not be affected.
17.3 The waiver by either party of a breach of any provision contained in this Agreement must be in writing and will in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. If either party fails to perform any term of this Agreement and the other party does not enforce that term, failure to enforce on that occasion will not prevent enforcement on any future occasion.
17.4 This Agreement will be binding upon, and inure to the benefit of, Insitio’s successors and assigns. Insitio may assign this Agreement without your consent. You may not assign any rights or obligations under this Agreement without our written consent.
17.5 Neither the expiration nor the termination of this Agreement will terminate any obligations or liability accrued to the time of such expiration or termination. Provisions that by their nature should survive after the termination of this Agreement shall survive.
17.6 Unless you notify us otherwise in writing, you hereby authorize us to use your company’s logo, name, or trademark on our website or in marketing materials.
17.7 This Agreement is governed by and is to be construed in accordance with the internal laws of the State of California 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 other jurisdiction. Any legal suit, action or proceeding arising out of or related to the Agreement must be instituted exclusively in the United States District Court for the Southern District of California located in San Diego or, only if there is no federal subject matter jurisdiction, in any state court of California having subject matter jurisdiction located in the city of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding