Align Cloud Terms and Conditions
For any Order Form that incorporates these terms and conditions by reference (the “Terms”), these Terms govern the Services purchased in the Order Form. The Order Form and these Terms form an agreement between MFB Technologies, Inc. (“MFB Technologies”) and any Customer listed in the Order Form. Terms not defined herein have the meaning given to them in the Order Form.
1. DEFINITIONS
1.1 “Access Credentials” means login information, passwords, security protocols, and policies through which Authorized Users access Align Cloud Services.
1.2 “Align Cloud Services” means any software-as-a-service application identified in any Order Form, the Documentation and all improvements, updates and upgrades to the application(s) and Documentation. Align Cloud Services specifically excludes the Customer Content.
1.3 “Applicable Law” means any national, state and local laws, rules and regulations in the Territory applicable to, in the case of: (a) MFB Technologies, in its performance of the Services and (b) Customer, in its use of the Services.
1.4 “Authorized Users” means any Customer partner, member, associate, paralegal, staff member or other employee or contractor that is provided Access Credentials by Customer or at the direction of Customer to access the features and functions of the Align Cloud Services.
1.5 “Confidential Information” means all written or oral information, disclosed by one party (the “Disclosing Party”) to the other (the “Recipient”), related to the business, products, services or operations of the disclosing party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (a) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques, (b) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents, (c) information regarding the skills and compensation of the disclosing party’s employees, contractors, and other agents, and (d) the existence of any business discussions, negotiations, or agreements between the Parties. Without limiting the foregoing, and for purposes of this Agreement, the Customer Content is the Confidential Information of Customer.
1.6 “Customer” means the entity identified as Customer in the applicable Order Form.
1.7 “Customer Content” means all information, content and other materials uploaded or input into the Align Cloud Services, by or on behalf of Customer.
1.8 “Documentation” means text and/or graphical documentation, whether in electronic or printed format, provided by MFB Technologies to Customer that are identified as user manuals or user videos designed to describe the features, functions and operation of the Align Cloud Services.
1.9 “Order Form” means a document signed by a representative of each party identifying the specific Service(s) to be made available, the fees to be paid and other relevant terms and conditions.
1.10 “Order Term” means the term of any Order Form as set forth in the Order Form.
1.11 “Personal Information” means any Customer Content that identifies any specific individual and / or is protected as personal information, personally identifiable information, personal data or similar term under applicable Privacy and Data Protection Laws.
1.12 “Restrictions” mean the restrictions set forth in the Order Form (e.g., limits on the Storage Capacity and the number of Authorized Users).
1.13 “Services” means the Align Cloud Services and any other services ordered by Customer, to be provided by MFB Technologies, as set forth in this Agreement.
1.14 “Storage Capacity” means the amount of Customer Content and other information, measured in GB, that is stored for Customer’s benefit, within the Align Cloud Services.
1.15 "Territory" means the geographic locations specified in the Order Form.
2. SERVICES
2.1 Ordering. The Services to be provided by MFB Technologies under this Agreement will be described and set forth in one or more Order Forms agreed upon by the parties from time to time.
2.2 Provision of Services. Subject to the terms and conditions of this Agreement, MFB Technologies will provide the Services to Customer in accordance with the Service Level Requirements set forth at https://legal.cloud.align.lawyer/sla and the maintenance and support policies set forth https://legal.cloud.align.lawyer/support.
3. ACCESS, RIGHTS AND INTELLECTUAL PROPERTY
3.1 Access Grant to Align Cloud Services. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, including the Restrictions, MFB Technologies grants to Customer during the Order Form Term a non-exclusive, non-transferable (with a right to sublicense solely as contemplated in the definition of Authorized User) revocable right to allow Authorized Users resident in the Territory to access and use the Align Cloud Services. Customer’s access and use of the Align Cloud Services is limited to Customer’s internal use only.
3.2 Access Credentials. Customer will safeguard, and ensure that all Authorized Users safeguard, the Access Credentials. Customer will be responsible for all acts and omissions of Authorized Users. Customer will notify MFB Technologies immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security.
3.3 Customer Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) adapt, alter, modify, improve, translate or create derivative works of the Align Cloud Services, (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Align Cloud Services and (c) except as may be specifically provided in this Agreement or otherwise approved by MFB Technologies in writing, provide any third party access to the Align Cloud Services or use the Services on behalf of any third party, including as part of a time-sharing, outsourcing or service bureau environment, but excluding any Customer clients on whose behalf Customer is performing legal services.
3.4 Proprietary Rights
(a) Customer Content
(i) Customer Content. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for MFB Technologies to use the Customer Content, to provide the Services.
(ii) License in Customer Content. Customer grants to MFB Technologies a non-exclusive license to use the Customer Content as necessary for purposes of providing the Services and as specified by this Agreement. Except for the limited licenses granted to MFB Technologies in any Customer Content, as between Customer and MFB Technologies, Customer reserves all right, title and interest in the Customer Content. Notwithstanding anything to the contrary, Customer acknowledges and agrees that MFB Technologies may use any data relating to and analysis of Authorized Users use of the Services, (collectively, “Usage Metadata”) for the purposes of providing the Services to Customer and for improving its products and services, including the Align Cloud Services with the understanding that Usage Metadata does not constitute Customer Content. Nothing herein is meant to provide MFB Technologies with any right to disclose Customer Content in violation of Section 4.
(b) Align Cloud Services. Except for the limited licenses and access grant provided to Customer in this Agreement, including any Order Form, MFB Technologies reserves all right, title and interest in its intellectual property and business including the Align Cloud Services and any MFB Technologies trademarks. Unless otherwise expressly set forth in the Order Form, and except for any Customer Content, all work product or services provided or developed pursuant to this Agreement or any Order Form (including any modifications and improvements to any Align Cloud Services) will be the sole and exclusive property of MFB Technologies.
(c) Continuous Development. Customer acknowledges that MFB Technologies may continually develop, deliver and provide to Customer on-going innovation to the Services, including the Align Cloud Services, in the form of new features, functionality, and efficiencies. Accordingly, MFB Technologies reserves the right to modify the Services, or any Align Cloud Services, from time to time. Some modifications will be provided to Customer at no additional charge. In the event MFB Technologies adds additional functionality to a particular Service, MFB Technologies may condition the implementation of such modifications on Customer’s payment of additional fees provided Customer may continue to use the version of the Align Cloud Services that MFB Technologies makes generally available (without such features) without paying additional fees.
(d) Feedback. MFB Technologies in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Customer to MFB Technologies, including such comments and suggestions of Authorized Users, in connection with its access to and use of the Services (all comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants MFB Technologies, on behalf of itself and its Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into MFB Technologies products and services.
(e) Other Software. The Align Cloud Services may incorporate portions of Microsoft Intune App Software Development Kit for iOS (© 2023 Microsoft Corporation) (the “Microsoft Software”). If incorporated, all references in this Agreement to the Align Cloud Services includes the Microsoft Software and, accordingly, all of MFB Technologies Technologies’s and Customer’s obligations with respect to the Align Cloud Services apply to the Microsoft Software, including the provisions of this Section 3.2 (Access Rights and Intellectual Property), Section 9.6 (Effects of Termination) and Section 10.9 (Export Controls). The Microsoft Software may only be used as incorporated into the Align Cloud Services and in no other manner. As between Customer and Microsoft, Microsoft will not be liable to Customer for any damages whatsoever relating to the Microsoft Software and Customer will seek any remedies in connection with the use of the Microsoft Software as contained in the Align Cloud Services from MFB Technologies.
4. CONFIDENTIAL INFORMATION
4.1 Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each disclosing party agrees as follows: (a) it will not disclose the Confidential Information of the disclosing party to anyone except its employees, contractors, third party services and advisors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement (each a “Representative”), (b) to safeguard the Confidential Information using the same degree of care it uses to safeguard its own information of a similar nature, but no less than reasonable care, (c) it will not use or reproduce the Confidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and / or performing its obligations as described herein and (d) all items of Confidential Information are proprietary to the Disclosing Party or such third party, as applicable, and will remain the sole property of the Disclosing Party of such third party. Each recipient will be liable for the acts and omissions of its Representatives with respect to the disclosing party’s Confidential Information.
4.2 Exceptions. The provisions of Section 4.1 will not apply to Confidential Information that: (a) is or becomes publicly available or enters the public domain through no fault of the Recipient, (b) is in the Recipient’s possession without knowledge of any confidentiality obligations, or (c) is independently developed by the Recipient without use of or reference to the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, each Party may disclose the Confidential Information to the limited extent required: (1) by Applicable Law, including court orders, provided that the Recipient will first provide written notice to the Disclosing Party (email being sufficient) and will reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain a protective order or (2) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
5. SECURITY
Each Party will comply with its respective obligations under the Data Processing Addendum (the “DPA”) set forth at https://legal.cloud.align.lawyer/dpa, which may be revised by MFB Technologies from time to time upon notice to Customer, provided, that in no event will the modifications results in any material degradation in the protections provided to Customer.
6. CONSIDERATION
6.1 Invoicing. Unless otherwise set forth in the Order Form, all fees related to Customer’s subscription access to the Align Cloud Services are to be invoiced by MFB Technologies in advance on an annual basis “Subscription Fees”). Unless otherwise set forth in any Order Form, all other fees set forth in an Order Form will be invoiced in arrears within ten (10) days of the end of the month in which such services were rendered. The Subscription Fees and all other fees and expenses set forth in the Order Form will be called “Fees.”
6.2 Fees. Customer will pay the Fees to MFB Technologies, without offset or deduction, in accordance with the payment schedule set forth in the applicable Order Form(s). Except as expressly provided herein, all Fees are non-refundable. Unless otherwise specified in any Order Form, all invoices issued by MFB Technologies will be due and payable thirty (30) days after receipt by Customer. Client must notify MFB Technologies in writing of any dispute or disagreement with invoiced charges within thirty (30) days after the date of invoice. Absent such notice, Client will be deemed to have agreed to the charges as invoiced after the expiration of such time period. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by Applicable Law, whichever is less, from the due date until paid. The Fees exclude, and Customer will be responsible for all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on MFB Technologies’s income). Alternatively, Customer may furnish to MFB Technologies an exemption certificate, provided however that if such exemption certificate is challenged or held invalid by a taxing authority then Customer agrees to pay for all resulting fines, penalties and expenses (including without limitation reasonable attorney’s fees and costs).
7. WARRANTIES; DISCLAIMERS; LIMITATIONS ON LIABILITY
7.1 General Representations. Each party represents and warrants that: (a) as of the Order Form Effective Date and throughout the Order Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, (b) the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms and (c) it will comply with all Applicable Law.
7.2 Warranty Disclaimer.
(A) GENERAL DISCLAIMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7, ITS USE OF THE SERVICES IS AT ITS OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MFB TECHNOLOGIES EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY MFB TECHNOLOGIES ON THE BASIS OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. MFB TECHNOLOGIES DOES NOT REPRESENT OR WARRANT THAT, AND MFB TECHNOLOGIES SPECIFICALLY DISCLAIMS THAT THE MFB TECHNOLOGIES SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, WILL BE ACCURATE OR UNINTERRUPTED.
(B) SPECIFIC DISCLAIMER. CUSTOMER ACKNOWLEDGES THAT IN ORDER TO ACCESS INFORMATION STORED IN THE ALIGN CLOUD SERVICES THERE MUST BE CONNECTIVITY WITH THE ALIGN CLOUD SERVICES. CUSTOMER FURTHER ACKNOWLEDGES THAT NOT ALL COURTHOUSES, BUILDINGS, LOCATIONS, OR VEHICLES WILL HAVE CONNECTIVITY OR ACCESS TO THE ALIGN CLOUD SERVICES AT ALL TIMES AND THAT THE ALIGN CLOUD SERVICES MAY NOT HAVE ONE HUNDRED PERCENT UPTIME. CUSTOMER WARRANTS THAT IN SITUATIONS WHERE ACCESS TO INFORMATION STORED IN THE ALIGN CLOUD SERVICES IS CRITICAL, THAT AUTHORIZED USERS WILL DOWNLOAD THE APPLICABLE INFORMATION TO DEVICES IN THE AUTHORIZED USERS’ PHYSICAL POSSESSION SO THAT CUSTOMER IS NOT RELIANT ON CONNECTIVITY AND ACCESS TO THE ALIGN CLOUD SERVICES IN ORDER TO ACCESS SUCH INFORMATION.
7.3 Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, COSTS OF DELAY, ANY FAILURE OF DELIVERY, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL MFB TECHNOLOGIES BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
7.4 Limitations on Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY MFB TECHNOLOGIES UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. THE LIMITATIONS ON LIABILITY SET FORTH IN SECTIONS 7.3 AND 7.4 WILL NOT APPLY TO (A) A PARTY’S INDEMNIFICATION OBLIGATION OR (B) TO ANY MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY.
7.5 Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF MFB TECHNOLOGIES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 7 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE.
8. INDEMNIFICATION
8.1 MFB Technologies Indemnity. MFB Technologies will indemnify, defend and hold Customer, its directors, officers, employees and representatives (each a “Customer Indemnified Party”), harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs, (collectively “Losses”) arising out of any third party claim alleging that Align Cloud Services infringe any U.S. patent, copyright, trademark or trade secret.
8.2 Exclusions. Section 8.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Align Cloud Services by any Customer or any Authorized User in a manner outside the scope of any right granted or in breach of this Agreement, (b) a combination, operation or use of the Align Cloud Services with other software, hardware or technology not provided by MFB Technologies if the claim would not have arisen but for such combination, operation or use or (c) the Customer Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).
8.3 Customer Indemnity. Customer will indemnify, defend and hold harmless MFB Technologies, its directors, officers, employees and representatives (each a “MFB Indemnified Party”), from and against any and all Losses arising out of any: (a) third party claim arising out of any Customer Indemnity Responsibility or (b) a claim by any client of Customer arising out of Customer’s use or inability to use the Align Cloud Services, provided that the indemnification in Section 8.3(b) will not apply to any MFB Technology indemnification pursuant to Section 8.1.
8.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
8.5 Infringement. If any Service is, or in MFB Technologies’s opinion, is likely to become the subject of any infringement-related claim, then MFB Technologies will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Service, (b) replace or modify the infringing technology or material so that the Service becomes non-infringing and remains materially functionally equivalent, or (c) terminate the Order Form(s) pursuant to which the Service is provided and give Customer a refund for any pre-paid but unused fees.
8.6 THE PROVISIONS OF THIS SECTION 8 STATE MFB TECHNOLOGIES’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement will commence on the Order Form Effective Date and will continue for as long as the Order Form is in effect (the “Term”). The term of any Order Form, including any renewal term, (if any), will be as set forth in the applicable Order Form.
9.2 Termination. Either party may terminate this any Order Form, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.
9.3 Suspension of Service(s). At any time during the Term, MFB Technologies may suspend access to any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Services, (b) any amount due under this Agreement is not received by MFB Technologies within fifteen (15) days after it was due or (c) breach or violation by Customer of any statutes, laws, or regulations.
9.4 Termination upon Bankruptcy or Insolvency. MFB Technologies may, at its option, terminate any Order Form immediately upon written notice to Customer, in the event that (a) Customer becomes insolvent or unable to pay its debts when due, (b) Customer files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing, (c) Customer discontinues its business or (d) a receiver is appointed or there is an assignment for the benefit of Customer’s creditors.
9.5 Deletion of Customer Content and Confidential Information.
(a) Customer Content. Whether or not Customer has downloaded its Customer Content, MFB Technologies reserves the right to permanently and definitively delete the Customer Content within thirty days (30) following termination of the Agreement, provided, however, that in the event of a conflict of the foregoing with Applicable Law, MFB Technologies will comply with Applicable Law. Customer acknowledges that it is Customer’s responsibilities to download all Customer Content and any other information stored on the Align Cloud Services, prior to termination of the Agreement, or risk loss of such data. Customer may, at any time, request the deletion of any Customer Content, and MFB Technologies will perform that deletion within thirty (30) days of receiving such notice, subject to reasonable technical or other limitations regarding the scope of such deletion..
(b) Confidential Information. Upon termination or expiration of this Agreement, each Party will, upon the request of the other, delete all Confidential Information disclosed by the other Party and provide to the other Party certificates evidencing the deletion. Notwithstanding anything to the contrary contained herein, each Party: (i) may retain one copy of the other Party’s Confidential Information for archival, audit, legal or regulatory purposes and (ii) will not be required to delete the Confidential Information from its archived electronic back-up files. Each party must maintain confidentiality of any such retained Confidential Information as if the Agreement were still in effect.
9.6 Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to MFB Technologies before such termination or expiration and all completed but unpaid Professional Services fees will be immediately due and payable and (b) all licensed and access rights granted will immediately cease to exist. Sections 1, 3.4 (other than 3.4(c)), 4 through 10 will survive any expiration or termination of this Agreement.
10. GENERAL
10.1 Assignment. This Agreement cannot be assigned by either Customer or MFB Technologies without the prior written consent of the other; provided, however, that either Party may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all of its assets, stock or business. Any attempted assignment or delegation in violation of this Section 10.1 will be null, void and of no effect.
10.2 Changes to the Agreement. MFB Technologies may modify this Agreement including: (a) to reflect changes to the Services or how MFB Technologies does business (e.g., when adding features or removing old ones), (b) for legal, regulatory, or security reasons, or (c) to prevent abuse or harm (any such changed terms, the “Modified Agreement”). If the changes in any Modified Agreement are material, MFB Technologies will provide Customer with reasonable advance notice (the “Modification Notice”) and the opportunity to review the changes. The Modified Agreement will go into effect on the date specified in the Modification Notice, which date will be no earlier than thirty (30) days following the date of the Modification Notice unless the change is required by Applicable Law. In the event that Customer objects to any materially adverse change in the Modified Agreement, Customer may terminate the Agreement upon written notice. In the event of any such termination, MFB Technologies will provide Customer a refund of any prepaid but unused Fees for the Align Cloud Services.
10.3 Notices. All notices, consents, and approvals under this Agreement must be delivered via email, if an email address is provided in the Order Form. If no such email address is provided or it such address is undeliverable, notice may be made in writing by courier, by electronic facsimile (fax), or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth below such party’s signature in the Order Form. Notice will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.
10.4 Governing Law; Disputes. This Agreement will be governed by the laws of the District of Columbia, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in District of Columbia and both parties submit to the jurisdiction and venue of such courts.
10.5 Remedies. Customer acknowledges that any actual or threatened breach of Section 3 will constitute immediate, irreparable harm to MFB Technologies for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive court costs and other collection expenses, in addition to any other relief it may receive.
10.6 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.7 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
10.8 No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any Authorized User or employee of a party) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
10.9 Construction. The parties entered into this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
10.10 Export. Each party shall comply with the applicable export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, Customer shall not make the Service available to any person or entity that: (a) is located in a country that is subject to a U.S. government embargo; (b) is listed on any U.S. government list of prohibited or restricted parties; or (c) is engaged in activities directly or indirectly related to proliferation of weapons of mass destruction.
10.11 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, act of terror, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
10.12 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Except as otherwise provided herein, this Agreement may be amended only by a written document signed by both parties.
Updated: 10/11/2024