Modicus Prime Ltd. Software as a Service Terms

These Software as a Service Terms (“SaaS Terms”) contain the terms and conditions that govern access to and use of the Services (as defined below) and constitute an agreement between Modicus Prime Ltd., a Delaware corporation, with its principal place of business located at 1118 Michigan Avenue, La Porte, IN 46350 (“MP”) and the individual or entity that wishes to access and use the Services (“Customer”). Customer’s rights to use and access the Services are expressly conditioned on Customer’s consent to these SaaS Terms. These SaaS Terms take effect upon the earlier of i) the Subscription Effective Date indicated in the Subscription Purchase Form (as defined below) or ii) Customer accessing or using the Services for the first time (the “Effective Date”). Each of MP and Customer may be referred to as a “Party” and collectively as the “Parties.”

1. Definitions.
1. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by MP in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
2. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these SaaS Terms and (ii) for whom access to the Services has been purchased hereunder.
3. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. 
4. “Documentation” means MP’s user manuals, handbooks, and guides relating to the Services provided by MP to Customer either electronically or in hard copy form/end user documentation relating to the Services.
5. “MP IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.  For the avoidance of doubt, MP IP includes Aggregated Statistics and any information, data, or other content derived from MP’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
6. “Services” means the software-as-a-service offering selected by Customer.
7. “Subscription Purchase Form” refers to the applicable Modicus Prime Subscription Purchase form executed by and between MP and Customer.
8. “Third-Party Products” means any third-party products provided with or incorporated into the Services.
2. Access and Use. 
1. Provision of Access.  Subject to and conditioned on Customer’s payment of Fees and compliance with all other/the terms and conditions of these SaaS Terms, MP hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein.  Such use is limited to Customer’s internal use.  MP shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.  The total number of Authorized Users will not exceed the number set forth in the Subscription Purchase Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. 
2. Documentation License.  Subject to the terms and conditions contained in these SaaS Terms, MP hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
3. Use Restrictions.  Customer shall not use the Services for any purposes beyond the scope of the access granted in these SaaS Terms.  Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
4. Reservation of Rights.  MP reserves all rights not expressly granted to Customer in these SaaS Terms.  Except for the limited rights and licenses expressly granted under these SaaS Terms, nothing in these SaaS Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the MP IP.
5. Suspension.  Notwithstanding anything to the contrary in these SaaS Terms, MP may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) MP reasonably determines that (A) there is a threat or attack on any of the MP IP; (B) Customer’s or any Authorized User’s use of the MP IP disrupts or poses a security risk to the MP IP or to any other customer or vendor of MP; (C) Customer, or any Authorized User, is using the MP IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) MP’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of MP has suspended or terminated MP’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”).  MP shall use reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension.  MP shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  MP will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. 
6. Aggregated Statistics.  Notwithstanding anything to the contrary in these SaaS Terms, MP may monitor Customer’s use of the Services and collect and compile Aggregated Statistics.  As between MP and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by MP.  Customer acknowledges that MP may compile Aggregated Statistics based on Customer Data input into the Services.  Customer agrees that MP may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law. 
3. Customer Responsibilities.
1. General.  Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these SaaS Terms.  Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these SaaS Terms if taken by Customer will be deemed a breach of these SaaS Terms by Customer.  Customer shall use reasonable efforts to make all Authorized Users aware of these SaaS Terms’ provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
2. Third-Party Products.  MP may from time to time make Third-Party Products available to Customer.  For purposes of these SaaS Terms, such Third-Party Products are subject to their own terms and conditions and any applicable flow-through provisions.  If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. 
4. Service Levels.
1. Service Levels.  Subject to the terms and conditions of these SaaS Terms, MP shall use commercially reasonable efforts to make the Services available in accordance with industry standards. 
5. Fees and Payment. 
1. Fees. Customer shall pay MP any and all fees and costs set forth in the Subscription Service Form or otherwise agreed to by the Parties (“Fees”) without offset or deduction.  Customer shall make all payments hereunder in US dollars no later than thirty (30) days after the date of invoice.  If Customer fails to make any payment when due, without limiting MP’s other rights and remedies: (i) MP may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse MP for all costs incurred by MP in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, MP may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
2. Taxes.  All Fees and other amounts payable by Customer under these SaaS Terms are exclusive of taxes and similar assessments.  Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on MP’s income.
3. Auditing Rights and Required Records.  Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of these SaaS Terms with respect to matters necessary for accurately determining amounts due hereunder.  MP may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by these SaaS Terms, provided that if such inspection and audit reveals that Customer has underpaid MP with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a).  Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds two percent (2%) for any quarter.  Such inspection and auditing rights will extend throughout the Term of these SaaS Terms and for a period of two (2) years after the termination or expiration of these SaaS Terms.
6. Confidential Information.  From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information[, whether orally or in written, electronic, or other form or media/in written or electronic form or media], [that is/and whether or not] marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”).  Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.  The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these SaaS Terms, including to make required court filings.  On the expiration or termination of the SaaS Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.  Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these SaaS Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback. 
1. MP IP.  Customer acknowledges that, as between Customer and MP, MP owns all right, title, and interest, including all intellectual property rights, in and to the MP IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. 
2. Customer Data. MP acknowledges that, as between MP and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to MP (a) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data, in each case, solely to the extent as may be necessary for MP to provide the Services to Customer, and (b) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
3. Feedback.  If Customer or any of its employees or contractors sends or transmits any communications or materials to MP by mail, email, telephone, or otherwise, suggesting or recommending changes to the MP IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), MP is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.  Customer hereby assigns to MP on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and MP is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although MP is not required to use any Feedback.
8. Limited Warranty and Warranty Disclaimer. 
1. MP warrants that the Services will conform in all material respects to the service levels set forth in the Subscription Purchase Form when accessed and used in accordance with the Documentation.  MP does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Subscription Purchase Form.  The remedies set forth in Subscription Purchase Form (if any) are Customer’s sole remedies and MP’s sole liability under the limited warranty set forth in this Section 8(a).  THE FOREGOING WARRANTY DOES NOT APPLY, AND MP STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE MP IP IS PROVIDED “AS IS” AND MP HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  MP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), MP MAKES NO WARRANTY OF ANY KIND THAT THE MP IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 
9. Indemnification. 
1. MP Indemnification. 
1. MP shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with these SaaS Terms, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer promptly notifies MP in writing of such Third-Party Claim, cooperates with MP, and allows MP sole authority to control the defense and settlement of such Third-Party Claim. 
2. If a Third Party-Claim is made or appears possible, Customer agrees to permit MP, at MP’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use.  If MP determines that neither alternative is reasonably available, MP may terminate these SaaS Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. 
3. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by MP or authorized by MP in writing; (B) modifications to the Services not made by MP; (C) Customer Data; or (D) Third-Party Products. 
2. Customer Indemnification.  Customer shall indemnify, hold harmless, and, at MP’s option, defend MP from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these SaaS Terms, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these SaaS Terms; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by MP or authorized by MP in writing; or (iv) modifications to the Services not made by MP, provided that Customer may not settle any Third-Party Claim against MP unless MP consents to such settlement, and further provided that MP will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 
3. Sole Remedy.  THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND MP’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.  IN NO EVENT WILL MP BE LIABLE UNDER OR IN CONNECTION WITH THESE SAAS TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MP WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.  IN NO EVENT WILL MP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE SAAS TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO MP UNDER THESE SAAS TERMS IN THE ONE- (1-) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 
11. Term and Termination. 
1. Term. The initial term of these SaaS Terms begins on the Effective Date and, unless terminated earlier pursuant to these SaaS Terms’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”).  These SaaS Terms will automatically renew for successive one (1) year term(s) unless earlier terminated pursuant to these SaaS Terms’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
2. Termination.  In addition to any other express termination right set forth in these SaaS Terms:
1. MP may terminate these SaaS Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after MP’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6;
2. either Party may terminate these SaaS Terms, effective on written notice to the other Party, if the other Party materially breaches these SaaS Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
3. either Party may terminate these SaaS Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3. Effect of Expiration or Termination.  Upon expiration or earlier termination of these SaaS Terms, Customer shall immediately discontinue use of the MP IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the MP IP and certify in writing to the MP that the MP IP has been deleted or destroyed.  No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
4. Survival.  This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of these SaaS Terms.  No other provisions of these SaaS Terms survive the expiration or earlier termination of these SaaS Terms.
12. Miscellaneous. 
1. Entire SaaS Terms.  These SaaS Terms, together with any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of these SaaS Terms and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.  In the event of any inconsistency between the statements made in the body of these SaaS Terms and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these SaaS Terms and (ii) second, any other documents incorporated herein by reference.
2. Notices.  All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of these SaaS Terms (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section).  All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid).  Except as otherwise provided in these SaaS Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
3. Force Majeure.  In no event shall MP be liable to Customer, or be deemed to have breached these SaaS Terms, for any failure or delay in performing its obligations under these SaaS Terms, if and to the extent such failure or delay is caused by any circumstances beyond MP’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, pandemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
4. Amendment and Modification; Waiver.  No amendment to or modification of these SaaS Terms is effective unless it is in writing and signed by an authorized representative of each Party.  No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.  Except as otherwise set forth in these SaaS Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these SaaS Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
5. Severability.  If any provision of these SaaS Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these SaaS Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these SaaS Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
6. Governing Law; Submission to Jurisdiction.  These SaaS Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.  Except as further provided herein, the parties agree that any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in New Castle County, Delaware, U.S.A., and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.  Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in New Castle County, Delaware, U.S.A. under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules.  All other disputes (excluding the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm) will be resolved by a court specified in Section 8(b).  Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction.  The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
7. Assignment.  Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of MP.  Any purported assignment or delegation in violation of this Section will be null and void.  No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder.  These SaaS Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 
8. Export Regulation.  Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US. 
9. US Government Rights.  Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
10. Equitable Relief.  Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.