This License, Support and Consulting Agreement (this “Agreement”) is by and between MbientLab Inc. (“Mbient”), and the Client (“Client”), (each, a “Party” and collectively, the “Parties”).
WHEREAS, Client has accepted a Quote (Statement of Work, Contract, or any other Paperwork on the “Effective Date”) detailing a Service rendered by Mbient.
WHEREAS, Mbient has created hardware, software, and firmware, and may create additional custom hardware, and/or software, and/or firmware under this Agreement (collectively, including the Other Mbient Materials and the Hardware Specs (each as defined below and in the Quote), the “Mbient Licensed Materials”), which are described fully in Client Quote and all or some of which are licensed to Client under this Agreement.
WHEREAS, under this Agreement Mbient may send hardware specifications (“Hardware Specs”) for certain of the Mbient Licensed Materials to Client, in which case Client shall have full responsibility for all manufacturing and delivery of such hardware using the Hardware Specs.
WHEREAS, Client wishes to purchase certain Consulting Services and Support Services (each as defined in Quote) from Mbient, and Mbient wishes to provide such services under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and intending to be and being legally bound hereby, the Parties agree as follows:
1. License Grant; Support.
1.1 Licensed Materials; Use by Client’s Customers.
(a) License to Mbient Licensed Materials. Subject to the terms and conditions of this Agreement, Mbient hereby grants to Client a perpetual (but subject to termination as set forth in this Agreement), limited, worldwide, non-exclusive, non-transferable, non-sublicensable (except as set forth in this sentence) right and license to use the Mbient Licensed Materials, with the firmware licensed in compiled object code format only and solely for embedding into hardware created using the Hardware Specs or sold to Client by Mbient under this Agreement, in each case solely to sublicense as a combined product to Client’s direct customers in accordance with the terms of this Agreement. As of the Effective Date, Mbient provides a smartphone app that allows end users of the Mbient firmware to update remotely the firmware contained in Mbient hardware. All such updates are part of the Mbient Licensed Materials under this Agreement and subject to all of the terms and conditions on the use of the Mbient Licensed Materials set forth in this Agreement. Mbient shall have no obligation to provide such updates and smartphone app after the Effective Date, and the License Fees (as defined below) under this Agreement shall not be affected in any way by the provision or non-provision of such updates and smartphone app after the Effective Date.
(b) Additional License. In addition, Mbient hereby grants to Client a perpetual (but subject to termination as set forth in this Agreement), limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to use the software, CAD, schematics, binary files and other materials listed in the Quote (the “Other Mbient Materials”) solely for use by Client on an internal basis only in connection with the other Mbient Licensed Materials.
(c) Limitations. Client may not embed any Mbient software and/or firmware into any hardware except as set forth in Section 1.1(a) above. Products created by Mbient that are sold separately are not licensed under this Agreement regardless of whether or not such products work together with the Mbient Licensed Materials. Client shall license its products containing the Mbient License Materials only directly to its individual retail customers and shall not license any such products on a wholesale basis, through distributors or resellers, or otherwise. The licenses granted under this Agreement do not allow Client, Client’s customers or any other third parties to access the source code of the software and/or firmware or to use the Mbient Licensed Materials in any way except as explicitly permitted by this Agreement. Mbient may limit the number of units of hardware manufactured by Mbient and licensed to Client under this Agreement based on any manufacturing limitations or issues.
1.2 Protection of Mbient’s Interests in the Mbient Licensed Materials.
The Parties recognize that Mbient may not have any existing legal or other relationships with Client’s customers that use the Mbient Licensed Materials in Client’s products, and that Mbient may not be able to influence or control such customers’ use of the Mbient Licensed Materials. Therefore, Client agrees to secure the Mbient Licensed Materials in order to restrict Client’s customers from using the Mbient Licensed Materials in any way except as set forth in this Agreement. In furtherance and not in limitation of the foregoing, to further protect Mbient’s ownership and other interests in the Mbient Licensed Materials, Client shall require each of its customers that use the Mbient Licensed Materials to execute a license agreement providing for full indemnification of Mbient by such customers for any use of the Mbient Licensed Materials, limitation on Mbient’s liability to the amount the customer paid for the Mbient Licensed Materials, and third-party beneficiary rights to Mbient. Client shall diligently protect, at Client’s sole expense, (a) all of Mbient’s ownership and other interests in the Mbient Licensed Materials if such interests are in any way threatened by Client’s customers and (b) Mbient against any litigation or other claims by Client’s customers or third parties. Client agrees to provide its license agreement to Mbient for Mbient’s review and to provide any material change to its license agreement to Mbient. Client shall not enter into any license agreements with terms that have not been agreed to in writing by Mbient.
If Client remains current in its payment obligations under this Agreement for the License Fees and the Consulting Services, Mbient shall provide Client with support services (the “Support Services”) subject to the terms and conditions of this Agreement. Support Services means discussions and question/answer sessions with Mbient’s personnel regarding the functionality of the Mbient Licensed Materials, and shall be billed to Client by invoice at Mbient’s hourly rates for such Support Services. Any requested changes or customizations to the Mbient Licensed Materials are Consulting Services, not Support Services.
Client shall be solely responsible for installing and implementing the Mbient Licensed Materials, except with respect to any Consulting Services performed by Mbient. Consulting Services shall only be provided under a Statement of Work (Quote or other appropriate paperwork) executed by both Parties.
2. Fees and Payments.
2.1 License Fees.
In consideration of the grant by Mbient to Client of the licenses to the Mbient Licensed Materials, Client shall pay Mbient a license fee in the amount set for in Quote.
2.2 Royalties; Hardware Pricing.
If Client licenses Hardware Specs under this Agreement, Client shall pay Mbient a royalty equal to the percentage set forth in Quote of the gross sales of each unit of combined hardware, firmware, and software licensed under this Agreement. Returns of units shall not affect in any way the royalties due to Mbient. Mbient shall have audit rights with respect to all sales of such products by Client. If Client licenses hardware manufactured by Mbient, Client shall pay per unit of hardware in the amount set forth in Quote. The aggregate fees payable under Section 2.1 above and this Section 2.2 are collectively referred to in this Agreement as the “License Fees”).
2.3 Payment Terms.
All payment amounts under this Agreement, including without limitation in any Exhibit and for any Support Services and Consulting Services, are in U.S. dollars and shall be made in U.S. currency. Client shall pay the amount invoiced by Mbient within the time periods, if any, set forth in Quote or, if Exhibit A contains no such time periods, within thirty calendar days of the invoice date, in each case without deduction of any kind.
2.4 Late Payment.
Client shall pay a late fee of 10% annually (or the maximum rate allowed by applicable law if less) on any amount due under this Agreement which has not been paid when due.
2.5 Taxes, Duties and Import/Export Fees.
The charges required to be paid under this Agreement do not include any amount for taxes, duties or import/export fees. Client shall pay, or if Mbient has already paid, shall reimburse, Mbient and hold Mbient harmless for all sales, use, VAT, excise, property, or other taxes or levies, duties or import/export fees which Mbient is required to collect or remit to applicable tax authorities (including without limitation any interest or penalties thereon). This provision does not apply to Mbient’s income or franchise taxes.
3. Ownership, Use Restrictions and Intellectual Property Protection.
(a) Mbient owns and shall continue to own all right, title and interest in and to (i) the Mbient Licensed Materials, (ii) any copies of the Mbient Licensed Materials, including without limitation translations, backup and archival copies, compilations, and partial copies, whether made by Client or any third party, (iii) Confidential Information (as defined below) of Mbient, (iv) any intellectual property created by Mbient in providing the Support Services and Consulting Services, which shall be deemed part of the Mbient Licensed Materials, and (v) any patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks, designs or design marks or proprietary inventions, designs and information included within any of the items described in clauses (i) through (iv) of this Section 3.1(a). All suggestions, solutions, improvements, corrections, modifications, upgrades, developments and other contributions provided by Client regarding the Mbient Licensed Materials shall become the sole property of Mbient and Client hereby agrees to assign any such rights to Mbient; provided that Client not use any such items and such items shall not be deemed part of the Mbient Licensed Materials.
(b) Client owns and shall continue to own all right, title and interest in and to (i) Confidential Information of Client, and (ii) any patents, patent rights, copyrights, trade secrets, trademarks, trade names, service marks, designs or design marks or proprietary inventions, designs and information included within such Confidential Information.
(c) If Client chooses to create any products or services that have similar functionality to the Mbient Licensed Materials, Client agrees not to refer to, incorporate, copy, or otherwise use any of Mbient’s property (including without limitation the items listed in Section 3.1(a) above) in creating such products or services.
(d) Client and Mbient agree that any intellectual property created by either Party outside of this Agreement shall be owned exclusively by such creating Party and no license with respect to such intellectual property shall be granted to the other Party under this Agreement. Without limiting the foregoing, such creating Party may use such intellectual property within such creating Party’s other intellectual property or otherwise.
Client shall not and shall not permit others (including without limitation its customers) to: (a) use the Mbient Licensed Materials for anything other than as specifically authorized in this Agreement, (b) disassemble, decompile, decipher or reverse engineer the Mbient Licensed Materials or apply any procedure or process to the Mbient Licensed Materials to ascertain, derive, and/or appropriate, for any reason or purpose, the source code or source listings for the Mbient Licensed Materials, any trade secret information, process, or other information contained in the Mbient Licensed Materials, (iii) modify or customize the Mbient Licensed Materials in any way or prepare any derivative work based upon the Mbient Licensed Materials, (iv) transfer, lend, sell, lease, rent, assign or otherwise transfer the Mbient Licensed Materials or any portion of the Mbient Licensed Materials except for authorized sales of Client’s products containing Mbient Licensed Materials, or (v) authorize or give permission to any person or entity to do any of the foregoing. Any sublicense of any Mbient Licensed Materials in a Client product shall be in compiled object code format only.
3.3 Proprietary Markings.
Client shall not remove, alter or obscure any of Mbient’s copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Mbient’s ownership from the Mbient Licensed Materials. Additionally, Client agrees to reproduce and include Mbient’s proprietary and copyright notices on all copies of the Mbient Licensed Materials, or on any portion of the Mbient Licensed Materials, including without limitation reproduction of any copyright notices.
3.4 Third-Party and Open Source Components.
Client acknowledges that the Mbient Licensed Materials may contain certain third-party and open source components, and that such components are licensed separately under a variety of third-party and open source licenses. Client agrees that no such third-party licenses shall increase the term of the license granted under this Agreement or change any of Mbient’s rights in and to the Mbient Licensed Materials.
4. Consulting Services.
4.1 Services Provided.
Subject to the terms and conditions of this Agreement, Client hereby engages Mbient, and Mbient hereby accepts the engagement, as contractor to provide any consulting and other services as may be agreed in writing between the Parties from time to time (the “Consulting Services”). The Support Services shall not be considered Consulting Services. Mbient shall be providing advice and recommendations under this Agreement to Client in connection with the Support Services and the Consulting Services, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Client.
(a) In consideration of, and as compensation for, Consulting Services to be provided under this Agreement, Client shall pay Mbient the amounts set forth in the applicable statement of work in Quote (SOW, contract, email, or other appropriate paperwork). Mbient shall present an invoice to receive such payment at times and in a form in accordance with Mbient’s standard practices. Such hourly rate is subject to increase in accordance with Mbient’s rate increase practices.
(b) Client shall reimburse Mbient for all pre-approved and reasonable out-of-pocket expenses incurred by Mbient in performing the Consulting Services (including without limitation all reasonable travel, meal, lodging, mileage and telecommunication expenses).
(c) In addition to all rights and remedies otherwise available to Mbient, Mbient shall have the right, at its sole option, to halt further Support Services and Consulting Services immediately if any past due amounts are undisputed until payment is received on all undisputed past due amounts.
4.3 Use of Mbient’s Property.
To the extent that Mbient utilizes any of its property (including without limitation any hardware, software, methodologies, processes, know-how, intellectual property rights or information of Mbient) in performing Consulting Services or Support Services, such property shall remain the property of Mbient, and Client shall acquire no right or interest in such property; provided, however, that should any such property be incorporated or used in a deliverable to Client, such property shall be deemed part of the Mbient Licensed Materials under this Agreement.
4.4 Non-Exclusive Services.
Nothing in this Agreement shall be construed as precluding or limiting in any way the right of Mbient to provide Support Services, Consulting Services or other services of any kind or nature (including without limitation the types of services to be provided under this Agreement) to any persons or entities as Mbient in its sole discretion deems appropriate.
(a) Client shall cooperate in all reasonable respects with Mbient in the performance by Mbient of the Support Services and Consulting Services and other obligations under this Agreement, including without limitation providing Mbient with reasonable facilities and timely access to the data, information and personnel of Client.
(b) Client shall be responsible for the performance of its officers, directors, members, managers, employees, contractors, agents and representatives and for the accuracy and completeness of all data and information that Client and any of its officers, directors, members, managers, employees, contractors, agents and representatives provide to Mbient for purposes of the performance by Mbient of the Support Services and Consulting Services and other obligations under this Agreement.
5. Confidential Information.
As used in this Agreement, “Confidential Information” means all information disclosed by a Party or its Representatives (as defined below) (the “Disclosing Party”) to the other Party or its Representatives (the “Receiving Party”), before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by the Receiving Party to the extent that it contains, reflects, or is derived from Confidential Information. Confidential Information of Mbient includes, without limitation, the Mbient Licensed Materials. The terms and conditions of this Agreement are Confidential Information; however, the existence of this Agreement is not Confidential Information.
5.2 Protection of Confidential Information.
The Receiving Party shall hold the Confidential Information, including without limitation the Mbient Licensed Materials, in strict confidence. Unless expressly permitted in this Agreement, Confidential Information may not be copied, reproduced, or distributed, and the Receiving Party shall not sell, lease, license, assign, transfer, or disclose the Confidential Information of the Disclosing Party to any third party. The Receiving Party shall protect Confidential Information by using the same degree of care, but no less than a reasonable degree of care, as it uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, including, without limitation, securing all servers, drives, software or media on which the Mbient Licensed Materials are installed or maintained. The Receiving Party agrees to restrict access to Confidential Information to only its employees and consultants who require such access in the course of their assigned duties and responsibilities and who have been informed of the Receiving Party’s obligations of confidence and have agreed in writing to preserve the confidentiality of such information under terms and conditions no less restrictive than those set forth in this Agreement, and the Receiving Party shall enforce such obligations.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such Confidential Information is (a) required by a court of competent jurisdiction or by a governmental or regulatory body to be disclosed by the Receiving Party after, to the extent reasonably practicable, the Receiving Party has given notice to the Disclosing Party and the Disclosing Party has had an opportunity to oppose such disclosure, (b) compelled by applicable law, regulation, rule, order, subpoena or other process to be disclosed by the Receiving Party after, to the extent reasonably practicable, the Receiving Party has given notice to the Disclosing Party and the Disclosing Party has had an opportunity to oppose such disclosure, (c) disclosed to auditors, attorneys, and bankers of the Receiving Party, provided that the Receiving Party shall inform each such person or entity of the confidential nature of such Confidential Information and that the Receiving Party shall be fully liable for any breach by any such person or entity of the confidentiality and other provisions of this Agreement, (d) disclosed with the prior express written consent of the Disclosing Party or (e) disclosed by the Receiving Party in connection with any judicial or other proceeding involving the Disclosing Party and the Receiving Party (or any partners, principals or employees of the Receiving Party) (whether or not such proceeding involves any third parties) relating to this Agreement. Any Confidential Information disclosed under the prior sentence shall continue to be treated confidentially in accordance with this Agreement after such disclosure requirement has ended.
6. WARRANTY DISCLAIMER.
MBIENT PROVIDES NO WARRANTIES WITH RESPECT TO THE MBIENT LICENSED MATERIALS, THE CONSULTING SERVICES OR THE SUPPORT SERVICES, REGARDLESS OF ANY COURSE OF DEALING, PROMOTIONAL LITERATURE OR OTHER ACTIONS WHICH MAY GIVE AN IMPRESSION OF CREATING A WARRANTY. MBIENT MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RESPECTING THE FUNCTIONAL CHARACTERISTICS OR PERFORMANCE OF THE MBIENT LICENSED MATERIALS, THE SUPPORT SERVICES OR THE CONSULTING SERVICES, OF THE PROFITABILITY OR OTHER BENEFITS TO BE OBTAINED BY CLIENT FROM THE USE OF THE MBIENT LICENSED MATERIALS OR WITH RESPECT TO THE SUPPORT SERVICES AND CONSULTING SERVICES TO BE PERFORMED UNDER THIS AGREEMENT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR FROM A COURSE OF DEALING OR USAGE IN TRADE.
If any claim is made by any third party against Mbient resulting from (a) Client’s, its customers’ or any third party’s use of the Mbient Licensed Materials, (b) the negligent, reckless or intentional act or omission of Client’s employees, personnel or customers, or (c) death, personal injury, bodily injury or property damage caused by Client’s employees, personnel or customers, Client shall fully indemnify, defend and hold harmless Mbient, its partners, principals, stockholders, directors, officers, employees, independent contractors, consultants, agents and representatives (collectively, “Representatives”) from such claim.
8. Limitation of Liability.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY:
(a) MBIENT SHALL NOT BE LIABLE TO CLIENT FOR DAMAGES FOR ANY CAUSE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, RELATED TO OR ARISING OUT OF THIS AGREEMENT, IN AN AMOUNT THAT EXCEEDS THE TOTAL FEES AND CHARGES PAID TO MBIENT BY CLIENT UNDER THIS AGREEMENT IN THE CALENDAR QUARTER IN WHICH SUCH DAMAGES ARISE;
(b) MBIENT SHALL NOT BE LIABLE TO CLIENT UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS, INTERRUPTION OF BUSINESS OR SERVICE, LOSS OF BUSINESS, DELAYS, LOSS OF DATA OR PROGRAMS, LOSS OF USE OF COMPUTER HARDWARE, OR LOSS OF GOODWILL, EVEN IF MBIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN FURTHERANCE AND NOT IN LIMITATION OF THE FOREGOING, MBIENT SHALL NOT BE LIABLE IN RESPECT OF ANY DECISIONS MADE BY CLIENT AS A RESULT OF THE PERFORMANCE BY MBIENT OF SUPPORT SERVICES OR CONSULTING SERVICES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE DESIGN, DEVELOPMENT OR IMPLEMENTATION OF ANY SYSTEMS OR PRODUCTS; AND
(c) BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF MBIENT SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9. Representations and Warranties of the Parties.
Each Party hereby represents and warrants to the other Party that:
(a) It has full power and authority to enter into and perform its obligations under this Agreement; and
(b) This Agreement has been duly and validly authorized, executed and delivered on behalf of such Party and is a legal, valid and binding agreement of such Party enforceable in accordance with its terms.
10. Term and Termination.
This Agreement shall commence on the Effective Date and shall continue until terminated in accordance with Section 10.2 below.
This Agreement may be terminated as follows: (a) at any time upon mutual written agreement of the Parties or (b) by either Party (the “terminating Party”) by written notice to the other Party (the “terminated Party”) if the terminated Party (i) breaches a material obligation under this Agreement (including without limitation any of Client’s payment obligations) and such breach continues uncorrected for a period of thirty calendar days after notice in writing of such breach by the terminating Party to the terminated Party (unless such breach is incapable of cure, in which case the terminating Party may terminate immediately after giving such notice), or (ii) becomes insolvent or is adjudged as bankrupt, makes an assignment for the benefit of creditors, has a receiver appointed or files a petition of bankruptcy.
10.3 Effect of Termination.
Upon termination of this Agreement and subject to Section 10.4 below: (a) all license rights granted this Agreement and any Exhibit shall terminate immediately, subject to the provisions set forth below in this Section 10.3; (b) Client shall pay all sums then owing to Mbient under this Agreement and any Exhibit within five calendar days from the effective date of termination; (c) each Party shall either return to the other Party or destroy, at such other Party’s sole option, all Confidential Information and all copies of such Confidential Information (including without limitation the Mbient Licensed Materials) then in its possession, custody or control and certify to such other Party in writing as to such return or destruction; (d) Client shall not be entitled to any refund of any payments made by Client not already owed to Client as of the date of such termination; and (e) Mbient shall have no further obligation to provide Support Services or Consulting Services. Following any termination of this Agreement, Mbient agrees to grant a limited, time-limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to Client for the sole purpose of allowing Client’s then-current customers within the Authorized Industry that have already been shipped a version of the Mbient Licensed Materials as part of an authorized Client product as of the date of termination to continue to use their then-current version of the Mbient Licensed Materials in such product in accordance with the terms and conditions of this Agreement. Such license shall terminate as to each customer when such customer ceases to use such then-current version of the Mbient Licensed Materials in such product within the Authorized Industry, and shall terminate entirely when the last such customer ceases to use such then-current version of the Mbient Licensed Materials in such product within the Authorized Industry. Client agrees to indemnify and hold harmless Mbient and its successors for the full amount of any claims of any sort brought by any Client customer against Mbient which arise after the date of termination of this Agreement.
The respective rights and obligations of Mbient and Client under the provisions of Sections 1.1(c), 1.2, 2, 3, 4.2, 4.3, 4.4, 5, 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement.
11.1 Independent Contractor.
Client and Mbient are and at all times shall be and remain independent contractors as to each other. At no time shall either Party be deemed to be the agent or employee of the other Party, and no joint venture, partnership, agency or other similar relationship shall be created or implied by virtue of this Agreement.
If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such elimination.
Any notice, consent, request or other communication required or permitted by this Agreement shall be in writing, shall be sent by hand delivery, by prepaid registered or certified mail, return receipt requested, or by Federal Express, Airborne Express or similar nationally-recognized overnight express courier and shall be deemed to have been duly given when actually received if delivered by hand, or, if mailed, three business days after mailing by registered or certified mail, return receipt requested, or, if via overnight express courier, the next business day, except that notice of change of address shall be effective only upon receipt. Notice shall be sent to the Parties at their respective addresses set forth below their signature blocks in this Agreement or at such other address as each may subsequently specify by notice to the other in accordance with the provisions of this section.
11.4 Force Majeure.
If the performance of this Agreement or any obligation under this Agreement (except payment of moneys due) is prevented, restricted or interfered with by reason of fire or other casualty or accident, act of God, strikes or labor disputes, inability to procure raw materials, power or supplies, war or other violence, any law, order proclamation, regulation, ordinance, demand or requirement of any governmental agency or intergovernmental body, or any other act or condition whatsoever beyond the reasonable control of the Party charged with performance, such Party, upon giving notice to the other Party in accordance with the provisions of Section 11.3 above, shall be excused from such performance to the extent of such prevention, restriction or interference for a period of up to three months.
No waiver by either Party of any term or condition of this Agreement or any breach of such term or condition, in any one or more instances, shall be deemed or construed to be a waiver of such term or condition or any subsequent breach of such term or condition.
11.6 Choice of Law and Forum.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without reference to conflicts of laws rules which would require application of another substantive law. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. All disputes arising out of or relating to this Agreement may only be brought in the state or federal courts located in San Francisco, California, and the Parties hereby agree and submit to the personal and exclusive jurisdiction and venue of these courts.
11.7 Export and Other Laws.
Client agrees to comply with all export and re-export restrictions and regulations imposed by the United States government and shall not commit any act or omission which will result in a breach of such export restrictions. Client shall not export the Mbient Licensed Materials until and unless Client has complied in all respects with all United States export and re-export restrictions. Client shall also comply with all other applicable United States laws and regulations as they relate to the Mbient Licensed Materials and this Agreement.
11.8 Entire Agreement; Amendment; Electronic Signatures; Counterparts.
This Agreement, including without limitation its Exhibits, contains the entire integrated agreement between the Parties with respect to the subject matter of this Agreement, and merges and supersedes all prior negotiations, representations or agreements, whether written or oral, with respect to such subject matter. Notwithstanding anything in this Agreement to the contrary, the provisions of this Agreement shall take precedence over any conflicting terms or conditions in any Exhibit, purchase order, documentation or collateral, whether in existence as of the Effective Date or subsequently created. Only a written instrument signed by an authorized representative of each Party that expressly amends this Agreement may amend this Agreement. Signed facsimile copies of this Agreement or manually signed copies of this Agreement sent electronically shall legally bind the Parties to the same extent as original documents. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.
11.9 Injunctive Relief; Attorneys’ Fees.
Client acknowledges and agrees that Mbient will suffer irreparable damage in the event of a breach by Client of Articles 1, 3, and 5 and Sections 4.3 and 10.3 of this Agreement and that Mbient will be entitled to injunctive relief (without the necessity of posting a bond) in the event of any such breach, in addition to all other remedies under this Agreement or available at law. Each Party shall pay its own attorneys’ fees and costs arising out of this Agreement.
11.10 Transfer and Assignment.
This Agreement and the rights and obligations under this Agreement are not assignable by Client without the prior written approval of Mbient. Any attempt by Client to assign this Agreement without such approval shall be void. This Agreement shall be binding on, and inure to the benefit of, the successors and assigns of Mbient and Client.
CONTACT: Please contact us at email@example.com with any questions regarding this Agreement.