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    RUDY BID MANAGEMENT SUITE

    Cloud Services Agreement

    NOTICE:  THIS END USER LICENSE AGREEMENT (THIS “EULA”) IS BETWEEN THE RECIPIENT OF THE SOFTWARE (“YOU” OR “CUSTOMER”) AND MINTMESH INC (“MINTMESH”) (COLLECTIVELY, THE "PARTIES" AND EACH, A "PARTY").

    PLEASE READ THESE TERMS CAREFULLY BEFORE DOWNLOADING, INSTALLING, ACCESSING, OR USING THE SOFTWARE OR CLICKING "I AGREE".  

    IF YOU CLICK THE “I AGREE” BUTTON OR DOWNLOAD, INSTALL, ACCESS, OR IN ANY WAY USE THE SOFTWARE, YOU AGREE THAT: 

    1. YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOURSELF AND/OR THE ENTITY ON WHOSE BEHALF YOU ARE ACTING, AS THE CASE MAY BE, TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND.
    2. YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE THEY ARE BINDING UPON YOURSELF AND/OR THE ENTITY ON WHOSE BEHALF YOU ARE ACTING, AS THE CASE MAY BE.

    IF YOU DO NOT AGREE TO THIS EULA, DO NOT CLICK “I AGREE” AND DO NOT USE THE SOFTWARE.  YOU MUST THEN PROMPTLY DELETE OR UNINSTALL (AS APPLICABLE) THE LICENSE FILES AND SOFTWARE FROM YOUR COMPUTER AND RETURN THE SOFTWARE AND ALL OTHER ITEMS (INCLUDING DOCUMENTATION AND PACKAGING) WITHIN THIRTY (30) DAYS OF PURCHASE TO MINTMESH VIA AN INTERNATIONALLY RECOGNIZED COURIER SERVICE (E.G., FEDEX, UPS, ETC.).  

    IF A SYSTEM INTEGRATOR, CONTRACTOR, CONSULTANT, OR ANY OTHER PARTY INSTALLS OR USES THE SOFTWARE ON YOUR BEHALF PRIOR TO YOUR USE OF THE SOFTWARE, SUCH PARTY WILL BE DEEMED TO BE YOUR AGENT ACTING ON YOUR BEHALF, AND YOU WILL BE DEEMED TO HAVE ACCEPTED THIS AGREEMENT AS IF YOU HAD DOWNLOADED, INSTALLED, OR USED THE SOFTWARE YOURSELF.NOTICE: 

    THIS IS A LEGALLY BINDING AGREEMENT BETWEEN the legal person or corporate entity receiving the benefit of this Agreement (THE “CUSTOMER” OR “YOU”) AND MINTMESH INC (“MINTMESH”) (collectively, the “Parties” and each, a “Party”).  PLEASE READ IT CAREFULLY.

     

     

    RECITALS

    WHEREAS, Customer desires to obtain access to the Services with respect to certain of its information technology needs; and Company wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.

    NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

    A. SERVICES

    • This Agreement sets forth the terms and conditions under which Mintmesh Inc agrees to provide (i) a hosted “software as a service” (“Subscription Services”) for a software application called Rudy Bid Management Suite (this application together with any applicable documentation thereto, and programming and user interfaces therefore, a “Software Platform”) to Authorized Users, and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and Platform, as further set forth in this document and issued hereunder as a package price list for applicable licenses to use the software for a specified service capacity(consumption)
    • The Services: Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Mintmesh Inc shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the Software Platform, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, Mintmesh Inc hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non- transferable, worldwide license to access and use the Software Platform, solely for internal business purposes as set forth herein.
    • Subscription Services. This agreement shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, the Software Platform, user limitations, license fees, subscription term, service capacity (consumption) for the applicable package price and other applicable terms and conditions.
    • Professional Services. Applicable Statement of Work will be created as deemed necessary and shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
    • Changes to Platform. Mintmesh Inc may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Mintmesh Inc’s products or services to its customers, (b) the competitive strength of, or market for, Mintmesh Inc’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.

     

    B. PLATFORM ACCESS AND AUTHORIZED USER

    • Administrative Users. During the configuration and set-up process for each Platform, Customer will identify an administrative username and password for Customer’s Mintmesh Inc account. Mintmesh Inc reserves the right to refuse registration of or cancel usernames and passwords it deems inappropriate.
    • Authorized Users. Customer may allow Customer’s employees and/or independent contractors to use the applicable Platform on behalf of Customer as “Customer Users.” Additionally, if applicable to a Platform, Customer may allow such number of designees (“Vendor Users” and together with Customer Users, “Authorized Users”) and, subject to Mintmesh Inc’s then-current Vendor Terms of Use, of its vendors (“Vendors”) and their personnel, to access the Platform in connection with such Vendor’s activity with Customer through such Platform. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User.

    B.3 Authorized User Conditions to Use. As a condition to access and use of a Platform, (i) each Authorized User shall agree to abide by the terms of Mintmesh Inc’s end-user terms of use which it may adopt from time to time, (ii) Customer Users shall agree to abide by the terms of this Agreement, or a subset hereof, and (iii) Vendor Users shall agree to abide by the terms of the then-current Mintmesh Inc Vendor Terms of Service applicable to the Platform, and, in each case, Customer shall ensure such compliance. Customer shall immediately notify Mintmesh Inc of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation and shall be liable for any breach of the foregoing agreements by any Authorized User.

    B.4 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Mintmesh Inc account, passwords (including but not limited to administrative and user passwords) and files. Mintmesh Inc is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.

     

     

    The parties agree to be bound by the terms of the Mintmesh End User License Agreement (“MEULA”) which is incorporated herein.

     

     

    MINTMESH END USER LICENSE AGREEMENT(MEULA)

     

    1. SAAS SERVICES AND SUPPORT
      • Subject to the terms of this Agreement, Mintmesh, Inc. (“Company”) will provide the customer identified on an Order Form or SAAS Master License Agreement (“Customer”) access to the SaaS services (“Services”). As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate or in violation of this Agreement.
      • Subject to the terms hereof, Company will provide Customer with technical support services (“Support”) as identified in the Support Policy in Exhibit A.

     

    1. RESTRICTIONS AND RESPONSIBILITIES
      • Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data, all as related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or expressly authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels from the Service or any Software. Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term (as defined in Section 5 below) only in connection with the Services.
      • Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, internet service, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account, passwords, or the Equipment with or without Customer’s knowledge or consent.
      • Support Requirements. Company will provide support and maintenance, as defined in Exhibit A, Support Policy to enable Customer to access and use the Services, including without limitation: (a) diagnosing and troubleshooting Customer problems that can be recreated by Company; (b) identifying and providing updates and upgrades and the appropriate documentation to minimize any disruption to Customer’s use; and (c) tracking technical support incidents reported by Customer.
      • Data Protection and System Security. Company shall implement and maintain industry standard security technology designed to provide the security of its Software.
      • Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, the software, and the Services in full compliance with this Agreement, Mintmesh Inc’s end-user terms of use and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to the software provided by Company, (ii) understands the requirements thereof, and(iii) agrees to comply therewith. Company may suspend Customer’s account and access to the software platform and performance of the Services at any time and without notice if Company believes that Customer is in violation of this Agreement. Although Company has no obligation to monitor Customer’s use of a Platform, Company may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
      • Customer shall provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing Company with such access to Customer’s premises and its information technology infrastructure as is necessary for Company to perform the Services in accordance with this Agreement.
      • Training and Education. Customer shall use commercially reasonable efforts to cause Customer Users to be, at all times, educated and trained in the proper use and operation of the software that such Customer Users utilize, and to ensure that the software is used in accordance with applicable manuals, instructions, specifications and documentation provided by Company from time to time.
      • Restrictions on Export. Customer may not remove or export from the United States or allow the export or re- export of the Software or anything related to a Platform, Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.

     

    1. CONFIDENTIALITY; PROPRIETARY RIGHTS
      • Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years or as required by law, following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
      • Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data, such as reports containing analytics, provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation services (as defined in the applicable Order Form) (“Implementation Services”) or support, and (c) all intellectual property rights related to any of the foregoing.
      • Customer hereby grants to Mintmesh Inc a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and the Services, both during and after the Term, and (ii) Vendor Information for any lawful purpose. “Vendor Information” means any Vendor list or Vendor contact information that is provided to Mintmesh Inc by Customer or uploaded to any Platform by or on behalf of Customer. For the avoidance of doubt, Mintmesh Inc may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, de- identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Mintmesh Inc. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through Mintmesh Inc or any Platform following the expiration or termination of this Agreement
      • Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data (including Customer Data) and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies, and Company will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.  

     

    1. PAYMENT OF FEES
      • Customer will pay Company the fees described in the SAAS Master License Agreement for the Services and Implementation Services in accordance with the terms herein (the “Fees”) as applicable including for the avoidance of any doubt, the package subscription fees per licensing unit as defined by the estimated service capacity parameter(consumption) as laid out in the SAAS Master License Agreement. If Customer’s use of the Services exceeds the Package Licensing Units set forth on the SAAS Master License Agreement or otherwise requires the payment of additional fees (per the terms of this Agreement), Company will notify Customer of any such additional fees that are then due and owing.
      • Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the receipt of a valid invoice. If Customer believes that Mintmesh Inc has billed Customer incorrectly, Customer must contact Mintmesh Inc no later than fifteen (15) days after the closing date on the first billing statement in which the believed error or problem appeared, to receive an adjustment or credit. Inquiries should be directed to Mintmesh Inc’s customer support department or the applicable Account Manager.
      • Fees do not include any applicable federal, state, local or other taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, or use taxes, assessable or imposed by a governmental authority located in the United States (collectively, “Taxes”). Customer will be responsible for all Taxes with respect to the Services, excluding taxes based on Company’s net income or property. Company will invoice Customer for any Taxes that Company is legally obligated to collect, and Customer shall pay such invoices in accordance with this action, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
      • Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse Mintmesh Inc for reasonable out-of-pocket expenses incurred by Mintmesh Inc in connection with performing Professional Services if required and explicitly agreed to in an order form.
      • No Deductions or Setoffs. All amounts payable to Company hereunder shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law
      • Subpoena Expenses. If Company must provide information in response to a subpoena related to Customer’s account, then Mintmesh Inc may charge Customer for Company’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents, and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
      • If a Party (Customer or the Company) sells or divests any Affiliate that provides Services or access to Facilities hereunder or assets that are used to provide Services or access to Facilities hereunder, such Party shall provide, or cause the divested Affiliate or another Person or Party to provide, for the continuity of Services and access to Facilities on the same price, terms and conditions as are in effect immediately prior to such sale or divestiture, and in a manner which does not cause a degradation in any material respect in the service standards set forth herein and without requiring a material change to the business processes or operations. In the event that any Affiliate of Customer ceases to be an Affiliate during the term of the Contract, then such divested Affiliate may continue to utilize the license or service pursuant to the terms of the current existing Contract. Continued use after the current existing agreement by the divested affiliate or portion thereof shall be then subject to such terms and conditions as Company and the divested affiliate shall agree in writing

     

    1. TERM AND TERMINATION
      • Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the SAAS Master License Agreement. The Parties may extend the term or any subsequent term of this Contract by executing a separate written extension and/or subsequent term of agreement.
      • In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement. Notwithstanding the aforementioned, in the event of any termination by Customer other than for the immediately preceding sentence, Customer will pay in full to Company for the Services for the then current Term.
      • Survival. Any provisions of this Agreement that contemplate their continuing effectiveness, including but not limited to Sections 3 (Confidentiality; Proprietary Rights), 5 (Term and Termination), 6 (Warranty and Disclaimer), 8 (Indemnity), 9 (Limitation of Liability), 10 (Governing Law; Venue), 11.1 (No Implied Waiver), 11.3 (Complete Agreement; Amendments), 11.4 (Independent Contractor), 11.6 (Notices), 11.8 (Injunctive Relief), and 11.10 (Subcontracts) shall survive termination of this Agreement.
    2. WARRANTY AND DISCLAIMER
      • Company shall use reasonable efforts to maintain the Services consistent with industry standards which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
    3. INSURANCE
      • During the Term of this Agreement and for twelve (12) months thereafter, Company shall maintain relevant insurance policies.

     

    1. INDEMNITY
      • Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement and/or any documentation to which access is provided by Company. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or Company suspects to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
    2. LIMITATION OF LIABILITY

    NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON , COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C)  FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY,

    NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, CUSTOMER AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (B) EXECPT FOR ACCRUED FEES REMAINING UNPAID BY CUSTOMER, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACCRUED PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    IF ABOVE MENTIONED SOFTWARE IS FOUND TO BE INFRINGING A THIRD PARTY'S COPYRIGHT OF INTELLECTUAL PROPERTY, THEN THE LIABILITY OF M/S. MINTMESH WILL BE TO THE EXTENT OF CLAIMS /SETTLEMENT AMOUNT THAT CUSTOMER MAY HAVE TO PAY, AND NOT UPTO THE FEES PAID AS STATED UNDER THIS ARTICLE.

    1. GOVERNING LAW AND DISPUTE RESOLUTION
      • This Agreement is governed in all respects by the laws of the State of Michigan, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Detroit, Michigan by three arbitrators knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator each and the third arbitrator shall be appointed by the arbitrators nominated by the parties within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on the third arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrators will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.

     

    1. MISCELLANEOUS
      • No Implied Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
      • This Agreement is not assignable, transferable or sub licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
      • Complete Agreement; Amendments. – This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.
      • Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.
      • In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
      • All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
      • Force Majeure. Neither party shall be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including acts or omissions of government or military authority, acts of God, transportation delays, fires, floods, riots or wars, terrorism, tornadoes, earthquakes, or hurricanes (each, a “Force Majeure Event”). The non-performing party shall promptly notify the other party of the occurrence of a Force Majeure Event and take commercially reasonable steps to eliminate as soon as practicable the non-performance caused by the Force Majeure Event.
      • Injunctive Relief. Each party understands and agrees that the other party may suffer irreparable harm in the event of a breach of any of the obligations imposed by Section 3 (Confidentiality; Proprietary Rights), of this Agreement and that monetary damages will be inadequate to compensate for any such breach. Accordingly, each party agrees that, in the event of a breach or threatened breach of any of such provisions, the other party, in addition to and not in limitation of any other rights, remedies or damages available at law or in equity, shall be entitled to preliminary and permanent injunctive relief in order to prevent or restrain any such breach without the necessity of proving damages or irreparable harm, or posting bond.
      • If any provision of this Agreement is declared or found to be illegal, unenforceable, or void by a court of law with jurisdiction, so long as the remainder of this Agreement is not materially affected by such declaration or finding and is capable of substantial performance, then the remainder shall be enforced to the extent permitted by law.
      • Company reserves the right to engage subcontractors to perform its obligations under this Agreement.
      • No Third-Party Beneficiaries. Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon any entity, other than Company and Customer, and their respective successors and permitted assigns, any remedy or claim by reason of this Agreement, and any such remedies or claims shall be for the exclusive benefit of Company and Customer.
      • This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which shall constitute one instrument.
      • Customer agrees that Company may identify Customer as a customer and use Customer’s logo and trademark in Mintmesh Inc’s promotional materials. Customer may request that Company stop doing so by submitting an email to sales@mintmesh.com at any time. Customer acknowledges that it may take Mintmesh Inc up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that Mintmesh Inc may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
      • Company may, from time to time, host and/or maintain a Platform using a third-party technology service provider and Customer acknowledges that Mintmesh Inc cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
      • Party/ Parties has the meaning of either Customer or the Company.
      • Company has the meaning of Vendor, Subcontractor, Service Provider, Licensor, etc.
      • Goods and / or Service either or both of them has the meaning of the contracted items to be provided by the Company.
      • Contract means the agreement by and between Company and Customer.