Purchase and License Agreement
This Purchase and License Agreement (the “Agreement”) is a legal agreement by and between Modjoul, Inc., a Delaware corporation with its principal offices at 105-2 Sloan St. Clemson, SC 29631 (“Modjoul”), and the party entering into this Agreement (“Customer”), for the use of the Equipment, Software, Documentation (referred to individually and collectively as “Products”) and Service provided to you. By clicking “I Agree”, otherwise using the Products or accessing the Service, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. If Customer does not agree to the terms and conditions of this Agreement, Customer may not access or use the Products or Service. Modjoul will not and does not license and make the Products or Service available unless Customer agrees to the terms of this Agreement.
In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
- Scope of agreement. Modjoul has provided to Customer certain devices, accompanying equipment, and cabling (“Equipment”); software incorporated into Equipment or provided in connection with Equipment (“Software”); accompanying written materials (“Documentation”); and a data subscription service (“Service”) that together make up the system (“System”) that facilitate the collection and analysis of data with respect to location, movement and environment. This Agreement sets forth the terms and conditions under which Customer may purchase and use the Products and Services.
- Product Orders. Customer may order Products and Services under this Agreement by submitting purchase orders. Without waiving its right to refuse any order, Modjoul will accept purchase orders in the Customer’s format as long as any such purchase order (a) is signed by an authorized representative of Customer and (b) Modjoul has previously approved the form of such purchase order. If there is a conflict between the provisions of a purchase order and this Agreement, the provisions of this Agreement will prevail.
- Pricing. Subject to availability and this Agreement, Customer shall be entitled to purchase Products and Services at the prices set forth on Exhibit 1. Unless specifically set forth on Exhibit 1, all prices exclude services, repairs, maintenance, tech support, extraordinary packaging and crating, duties, customs fees, taxes, (unless Customer provides Modjoul with an acceptable tax exemption certificate) insurance, installation, training, system integration, field testing, site preparation, frequency coordination, site permits, site design, site condition, site selection, installation, all other site issues, fees, preventative/corrective maintenance and any additional equipment which may be required, all of which shall be the Customer’s responsibility. Notwithstanding the foregoing, some of the foregoing items may be set forth in and included in a service agreement, to be agreed separately.
- Payment. Payment for Products and Services is set forth on Exhibit 1. All invoices which are thirty (30) days or more past due will be subject to a service charge of 1.5% per month or 18% APR. Partial shipments will be invoiced. All overdue accounts are also subject to collection charges, including without limitation, attorney’s fees and court costs.
- Shipping and Delivery. For Products shipped in the contiguous United States, shipping is ground unless otherwise specified; Modjoul will use commercially reasonable efforts to deliver Products by the estimated delivery date; however, shipment of Products is subject to availability, and Modjoul EXPRESSLY DISCLAIMS LIABILITY FOR ANY FAILURE TO MEET SUCH DELIVERY DATES. Any freight damages must be filed by Customer with the carrier within seven (7) days of receipt of the Product. If Customer fails to notify Modjoul of such damage within fourteen (14) days of the invoice date or the date of shipment, whichever occurs last, the Product will be deemed to be received in good condition. Customer acknowledges that Products may be returned for refund or credit unless Modjoul determines in its sole discretion that it should not refund the purchase price under the terms of the applicable warranty as set forth in Section 17, below.
- Use of Equipment. Modjoul is providing Equipment to Customer for the sole purpose of facilitating Customer’s use of the Software and Services, and Customer may not use the Equipment for any other purpose. Any single unit of Equipment may not be used to monitor more than one individual within any 24-hour period. Customer acknowledges that combining, operating, or using the Equipment with any non-Modjoul-provided equipment, devices, hardware, or software (“Non-Modjoul Products”) may degrade the performance of or damage the Equipment, Software, Service or the Non-Modjoul Products with which the Equipment, Software, or Service is combined. Modjoul is not responsible or liable for any damage to persons or property or degradation in performance to the System or Non-Modjoul Products arising directly or indirectly from such combination. Modjoul may annually revise Exhibit 1 at its sole discretion. Modjoul reserves the right to make changes in the design or specifications of any Products at any time without incurring any obligation to make equivalent changes in previously manufactured, sold or shipped Products.
- Software and Services.
7.1 Use of Software. Subject to this Agreement, Modjoul grants Customer a nonexclusive, nontransferable, limited license to use and operate the Software on the Equipment solely for use for internal purposes and in accordance with the Documentation. Customer may use the Documentation solely for the purposes of using the Equipment, Service and Software. Any updates and/or upgrades provided by Modjoul shall be considered Software and shall be governed by the terms and conditions of this Agreement.
7.2 Use of the Service. Subject to this Agreement and Customer’s compliance with Modjoul’s acceptable use policy, if any, Modjoul grants Customer a limited, royalty-free, non-exclusive, non-transferable license to use, access, input data into, process data through, and publicly display the Service for Customer’s own internal use and evaluation. Customer may designate and create accounts for any number of Registered Users (as defined below).
7.3 Availability of Service. Modjoul will provide the Service on Modjoul’s servers, and will use commercially reasonable efforts to make the Service available to Customer from 8 a.m. to 8 p.m. Eastern Time, Monday through Friday, except for certain scheduled service and maintenance or in the event of emergency or events of force majeure. Notwithstanding the foregoing, Modjoul will not be responsible for any downtime or failure to meet such Service availability goals. Modjoul will make good-faith efforts to perform maintenance to the Service outside peak usage hours. Customer acknowledges that availability of the Service may be affected by: (a) telecommunication network activity or capacity; (b) hardware failures; and/or (c) compatibility with third-party communication equipment, Internet access software, and/or browsers not in accordance with the Service requirements. Modjoul disclaims any and all responsibility for any service interruption in connection with such activity, capacity, failure, or compatibility. Customer is responsible for providing all equipment and telecommunication services necessary to access the Service. Customer is further responsible for saving all data and interfaces to its own storage media.
7.4 Modifications to Service. Modjoul reserves the right to change the Service (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason.
7.5 Customer Service and Technical Support. Modjoul will provide Customer with reasonable online customer support and maintenance for the Service through Modjoul’s support portal at www.modjoul.com/help. Modjoul does not guarantee that the support will be available or that Modjoul will make the Service work on Customer’s system or resolve all problems in connection therewith.
7.6 Restrictions on Use. Customer may not, and may not permit any Registered User to, use, copy, modify, rent, loan, lease, sublicense, create derivative works from, or distribute the Software, Service or Documentation for any other purposes or make the Software, Service or Documentation available to non-Registered Users. Modjoul grants no rights other than explicitly granted herein, and Customer shall not exceed the scope of its license. Customer shall not decompile, disassemble, or reverse engineer the Software or Service or any elements of the Software or Service, or otherwise derive source or object code from the Software or Service or any elements thereof. Customer may not use or access the Software, Documentation or Service for the purpose of creating similarly-functioning product(s). Customer will not to access the Service by any means other than through the interfaces that are provided by Modjoul. Customer shall not do any "mirroring" or "framing" of any part of the Service or create Internet links to the Service that include log-in information, user names, passwords, and/or secure cookies. Customer shall ensure that all access to and use of the System by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Registered Users that are contractors and agents. Any action or breach by any of such contractors, agents, or affiliates shall be deemed an action or breach by Customer.
8. Customer Responsibilities
8.1 Passwords. Customer acknowledges that use of the Products and Services requires that it register with Modjoul. Customer shall cause all employees, agents or subcontractors of Customer authorized to access the Service (“Users”) to create an account prior to [Modjoul] granting access to the Service (“Registered Users”). Modjoul has the right to suspend or terminate any Registered User account and refuse any and all current or future use of the Service (or any portion thereof) to anyone who provides false or inaccurate data. Customer and each Registered User are entirely responsible (a) for the security and confidentiality of such User’s password and account, and (b) for any and all activities that occur under that Registered User’s account. Customer shall immediately notify Modjoul of any unauthorized use of a Registered User’s account or any other breach of security of which Customer becomes aware.
8.2 Insurance. Customer shall, at its own expense, maintain in force policies of insurance with reputable insurers sufficient in coverage and amounts to secure its obligations and potential liabilities under this Agreement including any damage of the Equipment due to shipment. Customer will be solely responsible for all premiums, and any deductibles and/or retentions associated with that insurance.
8.3 Specifications. Customer acknowledges receipt of published specifications for all Equipment listed on Exhibit 1. Customer assumes sole responsibility for the selection of the Equipment to achieve Customer’s intended results and for the actual results obtained from such Equipment.
9. Ownership. Customer acknowledges and agrees that the Software, Service, and Documentation are licensed, not sold. As between Modjoul and Customer, Modjoul (or its licensors) is the sole and exclusive owner, and will retain all right, title, and interest in and to the Products and Service, including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, modifications, additions, improvements, and enhancements to and all intellectual property rights in the foregoing. All intellectual property rights, techniques, know-how, software, algorithms, and methods or rights in and to the Products and Service shall be and remain the property of Modjoul. As between Modjoul and Customer, all data input into or collected by the Products and Service, all data analytics, and all aggregated data generated from Customer’s use of the Products and Service shall be the sole and exclusive property of Modjoul. Modjoul shall have the right to use, create derivative works of, distribute, sell, and otherwise exploit all data input into or collected by the Products and Service data analytics and anonymous, aggregate usage data derived from Customer Data (“Usage Data”). Customer will take those reasonable steps necessary to protect Modjoul’s proprietary rights in the Products and Service related to Customer’s use and possession of the same. Customer will keep the Software and Documentation confidential and will not disclose or publish it, or any part of it, to others, except as specifically provided herein. All design elements of the Products and Service, including but not limited to the design, text, graphics, interfaces, and the selection and arrangement thereof, are protected by copyrights and trademarks owned by Modjoul or its licensors. ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED TO MODJOUL.
10. Feedback. Modjoul shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Products and Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Products or Service
11. Confidentiality, Proprietary Rights and Non-Disclosure. Modjoul’s proprietary data includes, without limitation, all non-public ideas, product concepts, hardware, engineering data, software, specifications, manufacturing processes and techniques, reports, drawings, source code, protocols, computer databases, and other information embodied in any of the Products, the Service or otherwise disclosed to Customer by Modjoul (“Proprietary Data”). Customer agrees to protect and preserve the confidentiality of all the foregoing Proprietary Data made available or disclosed to Customer. Customer will not use any portion of the Proprietary Data except as may be required in connection with Customer’s use of the Products and Service. No Proprietary Data shall be disclosed, published or discussed with third parties, other than employees who need to know the Proprietary Data for the purpose of utilizing the Products and who have agreed to protect its confidentiality, without the express prior consent of Modjoul in each instance. Customer shall take all appropriate actions to secure the compliance by its officers, employees, agents and directors with the terms of this section. Customer acknowledges that Modjoul’s remedies for any breach of this section may include, in addition to damages and other available remedies, injunctive relief enjoining any such breach.
12. Customer Data and Privacy.
12.1 Customer Data. Modjoul owns any data, information, or materials submitted by or on behalf of Customer or collected by the Service during Customer’s use of the Products and Service (“Customer Data”). Customer is solely responsible for the accuracy, integrity, and legality of Customer Data. Notwithstanding anything to the contrary in these terms and conditions, Modjoul shall not be responsible or liable for the deletion, corruption, correction, destruction, damage, loss, or failure to any of Customer Data. Customer shall not knowingly send or store spam, unlawful, infringing, obscene, or libelous material, or viruses, worms, Trojan horses and other harmful code, or data which violates the rights of any individual or entity established in any jurisdiction including, without limitation, medical information, credit card information, or social security numbers, driver’s license or personal identification numbers or account numbers on or to the Service. Customer represents and warrants that: (a) it is knowledgeable of, and familiar with, all applicable federal, state, and local laws, rules, regulations, codes, directives, and industry standards relating to privacy applicable to its business (“Privacy Laws”); (b) it will comply with its respective obligations under any and all applicable Privacy Laws; (c) it will obtain all consents from Users necessary to permit Modjoul’s collection and use of Customer Data as provided in this Agreement; and (d) Modjoul will have no responsibility for Customer’s compliance with Privacy Laws. Customer is solely responsible for ensuring that its collection, use, and storage of Customer Data, including personal information, will at all times comply with applicable privacy laws. Customer will collect information only from Registered Users persons who have expressly consented to such collection, and Customer will ensure that such persons have been informed of the information that will be collected from them, how it will be used, and that such information will be provided to third parties.
12.2 Right to Remove. Modjoul has the right, in its sole discretion, to remove or block any Customer Data at any time where (a) such Customer Data violate applicable laws, regulations, orders, or is in violation of Modjoul’s applicable policies and procedures, including without limitation any acceptable use policies; (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Service, Modjoul, or any third party; or (c) in order to respond to law enforcement or any other governmental authority.
12.3 Data Backup. Modjoul is not responsible for the backup of any Customer Data or other data and disclaims any and all responsibility for any loss of Customer Data or any other data from the Service. Customer acknowledges that data conversion, processing, and manipulation are subject to the likelihood of human and machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. To the extent within its control, Customer is responsible for adopting reasonable measures to limit the effect of such problems, including (a) backing up data that is generated or stored through the Service and adopting procedures to ensure the accuracy of input data; (b) examining and confirming results prior to use; and (c) adopting procedures to identify and correct errors and omissions, replace lost or damaged media, and reconstruct data. In the event of termination or expiration of this Agreement or disconnection of the Service, Modjoul may delete or store, in its discretion, any files, programs, data or messages associated with Customer’s account.
12.4 Privacy. Modjoul will use Customer Data for the purposes of providing the Service and supporting Customer. Modjoul may use Customer’s aggregated data to test, modify, and improve its products and services. In addition, Modjoul may use Customer Data, aggregated data, and analytics internally for its own business purposes or license, sell, or otherwise provide such data to third parties. Modjoul will comply with all applicable privacy and data protection laws and regulations with respect to the Service and its performance of its obligations under these terms and conditions. Customer hereby consents to the Products and Service sending Usage Data (e.g., the number of instances the Software is launched, the device IP address, and/or the version of the Software), for registration, authentication, use, and anti-piracy auditing and enforcement purposes. Customer acknowledges that Modjoul may disclose Customer Data if Modjoul determines that such disclosure is appropriate or necessary for purposes of national security, law enforcement, or other issues of public importance.
13. Termination. Modjoul may suspend Customer’s access to the Software or Service or terminate this Agreement and exercise any other rights it may have in the event that: (a) Customer fails to pay any amount when due; (b) Customer breaches this Agreement; or (c) Modjoul reasonably believes such action is necessary to protect the security or integrity of the Service or any data thereon. Upon termination for any reason, Customer shall either promptly return to Modjoul all Equipment and copies of the Software and Documentation in Customer’s possession or control or destroy (i.e. uninstall or delete) Customer’s copies of the Software and Documentation and certify in writing that all such copies have been destroyed. All sections that may be reasonably interpreted to or are intended to survive this Agreement will survive this Agreement.
14. Compliance with laws.
14.1 HIPPA. In addition to Customer's other obligations set forth herein, Customer specifically acknowledges and agrees that: (a) Modjoul is not acting on Customer’s behalf as a Business Associate or subcontractor (as such terms are used, defined, or described in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”)); (b) the Products and Service are not HIPAA-compliant; and (c) Customer may not use the Products and Service in any manner that would require Modjoul or the Products and Service to be HIPAA-compliant.
14.2 Export Compliance. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Products and Service and obtain any permits, licenses, and authorizations required for such compliance. Without limiting the foregoing, (x) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; (y) Customer shall not authorize Users to access the or use the System in violation of any U.S. export embargo, prohibition or restriction; and (z) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer will not knowingly send any electronic communication from the System that is unlawful, harassing, libelous, defamatory, or threatening, provided that Customer has taken commercially reasonable measures to prevent all such occurrences. Customer shall give notice to any party who may take title to the Products of Customer’s obligation to comply with any and all applicable laws, rules and regulations. This obligation shall include any person, firm or entity which Customer has reason to believe or a reasonable person would infer is obtaining the Products with the intention of export or re-export. Customer shall inform Modjoul of any possible violation (including past violations) hereof and Customer shall abide by Modjoul’s determination to cease the transfer or sale of the Products as Modjoul determines in its sole discretion with Modjoul incurring no liability thereof. Customer shall disclose upon request from Modjoul or any governmental agency all information pertaining to the sale or transfer of the Products to ensure compliance with this Section 14.2. Within twenty-four (24) hours of Modjoul’s request, Customer shall certify to Modjoul writing in a form acceptable to Modjoul its discretion that Customer is complying with the requirements of this Section 14.2. All of the obligations set forth in this Section 14.2 shall survive any termination of this Agreement forever.
15. Indemnification. Customer will indemnify and hold harmless Modjoul and its officers, directors, employees, consultants, and any and all claims arising from or related to (a) Customer’s use or operation of the Products, Service or any element thereof, including without limitation damage to any hardware or products because of Customer’s misuse of the Products or Service, or any element thereof; (b) breach of any of Customer’s warranties, covenants, and representations made under this Agreement; (c) Customer’s willful, negligent, tortious, or criminal acts or omissions; or (d) Customer’s violation of any third-party rights, including any claim of infringement of U.S. patent or copyright of a third party arising from or based upon the use, sale or manufacture by Modjoul as to any Equipment that is produced in whole or in part to Customer’s specifications, and which were not published specifications of Modjoul at the time of sale.
16. Customer’s Warranty. Customer warrants that all individuals having access to the Products and Service will observe and perform all the terms and conditions of this Agreement. Customer will, at its own expense, promptly enforce the restrictions in this Agreement against any person who gains access to its password or the Service and who violates such restrictions, by instituting and diligently pursuing all legal and equitable remedies against such person. Customer will immediately notify Modjoul in writing of any misuse, misappropriation, or unauthorized copying of the Software or Documentation that comes to Customer’s attention.
17. Modjoul Limited Equipment Warranty.
17.1 Warranty. Modjoul warrants the Equipment as set forth on Exhibit 1. If there is no warranty set forth in Exhibit 1, Modjoul does not warrant the Equipment. Customer must provide written notice to Modjoul within the warranty period of any defective Equipment. If the defect is not the result of acts of God, improper use, service, maintenance or installation by the Customer, and if the Equipment has not been otherwise damaged or modified after shipment, then AS MODJOUL’S SOLE AND EXCLUSIVE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, Modjoul shall either replace or repair the Equipment or refund the purchase price of the applicable Equipment at Modjoul’s exclusive option and discretion. The terms of the foregoing warranties are further limited as set in Sections 17.3 and 17.4.
17.2 Warranty Procedures.
(a) During the term of the applicable warranty period for the Equipment, Modjoul will provide up to two (2) hours of telephone support to assist the Customer with a diagnosis and identification of the defective Equipment, if any. All warranty diagnostic support exceeding two (2) hours during the term of the applicable warranty will be charged to Customer at the hourly rate then being charged for technical support by Modjoul.
(b) Customer may return the assembled Equipment for warranty repair or return only the defective Equipment. Before returning any of the foregoing for repair, Customer shall notify Modjoul. Returns for repair should be accompanied by a letter stating the nature of the problem, the serial and model numbers and the Customer name and telephone number. Please refer to www.Modjoul.com/help for instructions on making returns.
17.3 Warranty and Non-Warranty Costs.
(a) Shipment costs for warranty repairs or replacements shall be paid by the Customer. No credit or reimbursement shall be allowed for work performed by the Customer. Any Equipment that is not defective shall be returned to Customer at Customer’s expense, and testing and handling expense shall also be borne by Customer. Out-of-warranty repairs will be invoiced at the then-current Modjoul hourly service rate plus the cost of needed parts.
(b) Unless otherwise stated in a separate Service Agreement, the installation of the Equipment is the sole responsibility of Customer and under no circumstances shall Modjoul be liable for the failure of the Equipment as a result of such installation. Modjoul recommends the installation of the Equipment be performed by qualified site technicians that adhere to generally accepted best practices and guidelines. The site locations should also be designed and maintained to adhere to any applicable industry accepted standards. Unless otherwise stated in a statement of work, all site permits, frequency coordination, site selection, network distribution, installation and all other site issues and fees are the responsibility of the Customer, and any warranty provided hereunder may be inapplicable or void if the Equipment are not installed per industry accepted guidelines or installed at site locations that are not designed and or maintained per industry accepted guidelines.
17.4 Disclaimer of Warranties and Indemnification. MODJOUL IS PROVIDING ACCESS TO THE PRODUCTS AND SERVICES TO CUSTOMER ON AN “AS IS” BASIS AND “WITH ALL FAULTS, ERRORS, BUGS AND DEFECTS.” EXCEPT AS SET FORTH ON THE WARRANTY CARD DISTRIBUTED WITH THE SYSTEM OR AS SET FORTH IN THIS SECTION 17, MODJOUL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SYSTEM, ITS OPERATIONS, AND ITS CONTENT, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT FOR THE SYSTEM. THE PRODUCTS AND SERVICES PROVIDED BY MODJOUL ARE FOR DATA COLLECTION ONLY AND ARE NOT INTENDED TO PREVENT OR STOP INJURIES OR FATALITIES.
18. Limitation of Liability. IN NO EVENT SHALL MODJOUL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER RELATED OR SIMILAR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS, OR REVENUES OF ANY KIND, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE CONNECTED WITH THE USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY: (a) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (b) WHETHER OR NOT DAMAGES WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT. ANY DAMAGES ARISING UNDER THE USE OF THE SYSTEM THAT MODJOUL IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO MODJOUL UNDER THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER UNDER THE LAWS OF THOSE STATES. Except as required by applicable laws, Customer may not bring any action, regardless of form, arising out of any transaction under this Agreement, more than one year after Customer receives knowledge of the occurrence that gives rise to the cause of such action.
19. General Provisions.
19.1 Relationship of the Parties. Nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal and agent or master and servant or employer and employee between the parties hereto or any affiliates or subsidiaries thereof, or to provide either party with the right, power or authority, whether express or implied, to create any duty or obligation on behalf of the other party.
19.2 Notices. Any notice or other communication required or permitted by this Agreement or by law to be served on or given to any party shall be in writing and shall be deemed served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service, (a) three days after deposit in the United States mail, postage prepaid, registered or certified, return receipt requested, or (b) the next business day following transmission by fax or e-mail, sent in each case to the addresses set forth below the signatures on this Agreement.
19.3 Assignment. This Agreement is personal to Customer. Customer shall not assign or otherwise transfer any rights or delegate any duties under this Agreement without the prior written consent of Modjoul. Any attempted assignment, transfer or delegation without such consent shall be null and void.
19.4 Force Majeure. Modjoul will not be in breach of its obligations hereunder if performance of such obligations is prevented, delayed or made impracticable by any cause beyond the reasonable control of Modjoul, including without limitation, denial of service attacks, acts or omissions of Customer, acts of God or government, natural disasters or storms, fire, political strife, labor disputes, terrorism, failure or delay of transportation, default by suppliers or unavailability of parts.
19.5 Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Washington without regard to its conflict of laws provisions. Any litigation between the parties concerning these terms and conditions shall be brought in Superior Court of King County Washington or in the U.S. District Court for the Western District of Washington, and Customer consents to such courts having personal jurisdiction and that venue is proper in either of such courts.
19.6 Attorney’s Fees. If any litigation is brought to enforce, or arises out of, this Agreement or any term, clause, or provision hereof the prevailing party shall be awarded its reasonable attorneys’ fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof.
19.7 Interpretation. The titles of the sections of this Agreement are for convenience only and shall not affect the interpretation or construction of any section. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their mutual agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement. The words “include” and “including” and variations thereof are not terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
19.8 Waiver. Failure to exercise any right will not operate as a waiver of that right, power, or privilege. A waiver of any of the terms of this Agreement, or any breach or default hereunder, shall not be deemed or construed as a waiver of such terms for the future or any subsequent breach or default, whether or not of the same or similar nature.
19.9 Entire Agreement; Severability; Modification. This Agreement, including the warranty and any other policies referenced herein, represents the entire agreement between the parties with respect to the subject matter hereof and all other negotiations, understandings and agreements relating thereto, whether written or oral, including but not limited to all requests for proposal, proposals, payments or other forms, are nullified and superseded hereby. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. This Agreement may only be modified, amended, or supplemented in a written document signed by authorized signatories of both parties subsequent to the date of execution of this Agreement.