Posted/Revised: Jan 10, 2025
TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CONTRACTOR AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement between MANIFOLD CLOUD SERVICES LTD., an Ohio limited liability company (“MCS”), and the corporation, LLC, partnership, sole proprietorship, or other business entity executing this agreement (“CONTRACTOR”). This agreement is effective as of the date Contractor clicks “I Agree” (the “Effective Date”). Contractor’s use of and MCS’s provision of MCS’s SaaS (below defined in Section 1.6) are governed by this agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CONTRACTOR’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CONTRACTOR TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this agreement.
1.1. “Account Data” means Contractor’s account identifying information including without limitation employees, contact information, and other records related to Contractor’s account.
1.2. “AUP” means MCS’s acceptable use policy currently posted at https://support.measurequick.com/portal/en/kb/articles/qbit-account-terms-and-conditions___.
1.3. “Contractor Data” means all information processed or stored through the SaaS by Contractor or on Contractor’s behalf.
1.4. “Documentation” means MCS's standard manual related to use of the SaaS, as well as https://support.measurequick.com/portal/en/kb/articles/qbit-account-terms-and-conditions_.
1.5. “Order” means the mq Order Form for access to the SaaS, executed by Contractor.
1.7. “SaaS” means MCS’s measureQuick® software system including MCS’s website interfaces, MCS’s cloud storage, learning management system, and use of the mobile software application.
1.9. “Term” is defined in Section 11.1 below.
1.10. “User” means any individual who uses the SaaS on Contractor’s behalf or through Contractor’s account or passwords, whether authorized or not.
2. THE SAAS.
2.1. Use of the SaaS. During the Term, Contractor may access and use the SaaS for its internal business purposes pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
2.2. Service Levels. MCS shall provide the remedies listed in the SLA for any failure of the SaaS listed in the SLA. Such remedies are Contractor’s sole remedy for any failure of the SaaS, and Contractor recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this agreement. MCS is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this agreement.
2.3. Documentation: Contractor may reproduce and use the Documentation solely as necessary to support Users’ use of the SaaS.
2.4. SaaS Revisions. MCS may revise SaaS features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the SaaS materially reduces features or functionality provided pursuant to an outstanding Order, Contractor may within 30 days of notice of the revision terminate such Order, without cause, or terminate this agreement without cause if such Order is the only one outstanding.
3. PAYMENT.
3.1. Subscription Fees. Contractor shall pay MCS the fee set forth in each Order (the “Subscription Fee”) for each Term. MCS’s invoices are due upon issuance. For late payment, Contractor shall pay interest charges from the time the payment was due at the rate that is the lower of 1½% per month or the highest rate permissible under applicable law. MCS will not be required to refund the Subscription Fee under any circumstances.
3.2. Taxes. Amounts due under this agreement are payable to MCS without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, MCS may require that Contractor submit applicable Sales Taxes to MCS. However, the preceding sentence does not apply to the extent that Contractor is tax exempt, provided it gives MCS a valid tax exemption certificate within 30 days of the Effective Date. MCS’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 3.2. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Contractor shall separately pay MCS the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 3.2 does not govern taxes based on MCS’s net income.
4.1. Management of Contractor Data in General. The provisions below of this Section 4.1 are subject to applicable law, including Privacy/Security Laws.
4.2.
(a) Limited Use. MCS shall not: (i) access, process, or otherwise use Contractor Data other than as necessary to facilitate the SaaS; or (ii) give Contractor Data access to any third party, except MCS’s subcontractors that have a need for such access to facilitate the SaaS and are subject to a reasonable written agreement governing the use and security of Contractor Data. Further, MCS shall exercise reasonable efforts to prevent unauthorized disclosure or exposure of Contractor Data.
(b) De-Identified Data. Notwithstanding the provisions of this Article 4, MCS may use, reproduce, sell, publicize, or otherwise exploit De-Identified Data (below defined) in any way, in its sole discretion, including without limitation aggregated with data from other customers. (“De-Identified Data” refers to Contractor Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, or Contractor.)
(c) Privacy Policy. Contractor acknowledges MCS’s privacy policy at https://support.measurequick.com/portal/en/kb/articles/qbit-account-terms-and-conditions______, and Contractor recognizes and agrees that nothing in this agreement restricts MCS’s right to alter such privacy policy.
(d) Required Disclosure. Notwithstanding the provisions of this Article 4, MCS may disclose Contractor Data as required by applicable law or by proper legal or governmental authority. MCS shall give Contractor prompt notice of any such legal or governmental demand and reasonably cooperate with Contractor in any effort to seek a protective order or otherwise to contest such required disclosure, at Contractor’s expense.
(e) Risk of Exposure. Contractor recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the SaaS, Contractor assumes such risks. MCS offers no representation, warranty, or guarantee that Contractor Data will not be exposed or disclosed through errors or the actions of third parties.
(f) Additional Fees. Contractor recognizes and agrees that MCS may charge additional fees (without limitation) (a) for activities (if any) required by Privacy/Security Laws and (b) for activities Contractor requests to help it comply with Privacy/Security Laws.
4.3. Data Accuracy. MCS will have no responsibility or liability for the accuracy of data uploaded to the SaaS by Contractor, including without limitation Contractor Data and any other data uploaded by Users.
4.4. Erasure. MCS may permanently erase Contractor Data if Contractor’s account is delinquent, suspended, or terminated for 30 days or more, without limiting MCS’s other rights or remedies.
4.5. Excluded Data. Contractor warrants that (a) it has not and will not transmit Excluded Data (below defined), or permit transmission of Excluded Data, to MCS or its computers or other media and, (b) to the best of its knowledge, Contractor Data does not and will not include Excluded Data. Contractor shall inform MCS of any Excluded Data within Contractor Data promptly after discovery (without limiting MCS’s rights or remedies). Contractor recognizes and agrees that: (i) the provisions of this agreement related to Contractor Data do not apply to Excluded Data; (ii) MCS has no liability for any failure to provide protections in the Excluded Data Laws (below defined) or otherwise to protect Excluded Data; and (iii) MCS’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. MCS is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data. (“Excluded Data” means protected health information (PHE) under HIPAA, social security numbers, credit card numbers, and Account Data. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects.
5. CONTRACTOR’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Contractor shall comply with the AUP. Contractor shall not: (a) use the SaaS for service bureau or time-sharing purposes or in any other way allow third parties to exploit the SaaS; (b) provide SaaS passwords or other log-in information to any third party; (c) share non-public SaaS features or content with any third party; (d) access the SaaS in order to build a competitive product or service, to build a product using similar ideas, features, functions, or graphics of the SaaS, or to copy any ideas, features, functions, or graphics of the SaaS; or (e) engage in web scraping or data scraping on or related to the SaaS, including without limitation collection of information through any software that simulates human activity, uses artificial intelligence, or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, MCS may suspend Contractor’s access to the SaaS without advanced notice, in addition to such other remedies as MCS may have. Neither this agreement nor the AUP requires that MCS take any action against Contractor or any User or other third party for violating the AUP, this Section 5.1, or this agreement, but MCS is free to take any such action it sees fit.
5.2. Unauthorized Access. Contractor shall take reasonable steps to prevent unauthorized access to the SaaS, including without limitation by protecting its passwords and other log-in information. Contractor shall notify MCS immediately of any known or suspected unauthorized use of the SaaS or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the SaaS, Contractor shall comply with all applicable laws, including without limitation Privacy/Security laws.
5.4. Users & SaaS Access. Contractor is responsible and liable for: (a) Users’ use of the SaaS, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this agreement applicable to Contractor; and (b) any use of the SaaS through Contractor’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the SaaS. MCS retains all right, title, and interest in and to the SaaS, including without limitation all software used to provide the SaaS and all graphics, user interfaces, logos, and trademarks reproduced through the SaaS. This agreement does not grant Contractor any intellectual property license or rights in or to the SaaS or any of its components, except to the limited extent that such rights are necessary for Contractor’s use of the SaaS as specifically authorized by this agreement. Contractor recognizes that the SaaS and its components are protected by copyright and other laws.
6.2. Feedback. MCS has not agreed to and does not agree to treat as confidential any Feedback (below defined) that Contractor, Contractor’s Clients, or other Users give MCS, and nothing in this agreement or in the parties’ dealings arising out of or related to this agreement will restrict MCS’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Contractor. Feedback will not be considered Contractor’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of MCS’s products or services.)
7. CONFIDENTIAL INFORMATION. “Confidential Information” is provided “as-is” without warranty of any kind and refers to the following items MCS discloses to Contractor: (a) any document MCS marks “Confidential”; (b) any information MCS orally designates as “Confidential” at the time of disclosure, provided MCS confirms such designation in writing within 10 business days; (c) the Documentation, business plans, and software features, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Contractor should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Contractor’s possession at the time of disclosure; (ii) is independently developed by Contractor without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Contractor’s improper action or inaction; or (iv) is approved for release in writing by Contractor. Contractor is on notice that the Confidential Information may include MCS’s valuable trade secrets.
7.1. Nondisclosure. Contractor shall not use Confidential Information for any purpose other than diagnostics, reporting, and data aggregation (the “Purpose”). Contractor: (a) shall not disclose Confidential Information to any employee or contractor of Contractor unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Contractor with terms no less restrictive than those of this Article 6.2; and (b) shall not disclose Confidential Information to any other third party without MCS’s prior written consent. Without limiting the generality of the foregoing, Contractor shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Contractor shall promptly notify MCS of any misuse or misappropriation of Confidential Information that comes to Contractor’s attention. Notwithstanding the foregoing, Contractor may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Contractor shall give MCS prompt notice of any such legal or governmental demand and reasonably cooperate with MCS in any effort to seek a protective order or otherwise to contest such required disclosure, at MCS’s expense.
7.2. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1 above (Nondisclosure) will terminate three (3) years after the date of disclosure; provided that such obligations related to Confidential Information constituting MCS’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this agreement, Contractor shall return all copies of Confidential Information to MCS or certify, in writing, the destruction thereof.
7.3. Injunction. Contractor agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Article 7; (b) it would be difficult to determine the damages resulting from its breach of this Article 7, and such breach would cause irreparable harm to MCS; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that MCS prove actual damage or post a bond or other security. Contractor waives any opposition to such injunctive relief or any right to such proof, bond, or other security. (This Section 7.3 does not limit either party’s right to injunctive relief for breaches not listed.)
7.4. Retention of Rights. This agreement does not transfer ownership of Confidential Information or grant a license thereto. MCS will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Contractor is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this agreement:
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a compliance or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From MCS. MCS represents and warrants that it is the owner of the SaaS and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the SaaS set forth in this agreement without the further consent of any third party. MCS’s representations and warranties in the preceding sentence do not apply to use of the SaaS in combination with hardware or software not provided by MCS. In case of breach of the warranty above in this Section 8.1, MCS, at its own expense, shall promptly: (a) secure for Contractor the right to continue using the SaaS; (b) replace or modify the SaaS to make it non-infringing; or if such remedies are not commercially practical in MCS’s reasonable opinion, (c) refund the fees paid for the SaaS for every month remaining in the then-current Term following the date after which Contractor access to the SaaS ceases as a result of such breach of warranty. If MCS exercises its rights pursuant to Subsection 8.1(c) above, Contractor shall promptly cease all use of the SaaS and all reproduction and use of the Documentation and erase all copies in its possession or control. This Section 8.1, in conjunction with Contractor’s right to terminate this agreement where applicable, states Contractor’s sole remedy and MCS’s entire liability for breach of the warranty above in this Section 8.1.
8.2. From Contractor. Contractor represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the SaaS; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CONTRACTOR ACCEPTS THE SAAS “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) MCS HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CONTRACTOR OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) MCS DOES NOT REPRESENT OR WARRANT THAT THE SAAS WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) MCS DOES NOT REPRESENT OR WARRANT THAT THE SAAS IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CONTRACTOR DATA WILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION. Contractor shall defend, indemnify, and hold harmless MCS and the MCS Associates (below defined) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Contractor's alleged or actual use of, misuse of, or failure to use the SaaS, including without limitation: (a) claims by Users or by Contractor's employees, as well as by Contractor’s own customers; (b) claims related Data Incidents (below defined); (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the SaaS through Contractor’s account, including without limitation by Contractor Data; and (d) claims that use of the SaaS through Contractor’s account, including by Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. INDEMNIFIED CLAIMS INCLUDE, WITHOUT LIMITATION, CLAIMS ARISING OUT OF OR RELATED TO MCS’S NEGLIGENCE. Contractor’s obligations set forth in this Article 9 include, without limitation: (i) settlement at Contractor’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys’ fees incurred before Customers’ assumption of the defense (but not attorneys’ fees incurred thereafter). If Contractor fails to assume the defense on time to avoid prejudicing the defense, MCS may defend the Indemnified Claim, without loss of rights pursuant to this Article 9. MCS will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a MCS Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. (“MCS Associates” are MCS’s officers, directors, shareholders, members, parents, subsidiaries, agents, successors, and assigns. A “Data Incident” is any (1) unauthorized disclosure of, access to, or use of Contractor Data, including without limitation Excluded Data, or (2) violation of Privacy/Security Law through Contractor’s account. Data Incidents include, without limitation, such events caused by Contractor, by MCS, by Contractor’s customers or other users, by hackers, and by any other third party.)
10.1. Dollar Cap. MCS’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED $10,000.
10.2. Excluded Damages. Except with regard to breaches of Article 7 (Confidential Information), IN NO EVENT WILL MCS BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY TO THE BENEFIT OF MCS’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF MCS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CONTRACTOR’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Contractor acknowledges and agrees that MCS has based its pricing on and entered into this agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 10, MCS’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, MCS’s liability limits and other rights set forth in this Article 10 apply likewise to MCS’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, members, officers, employees, consultants, and other representatives.
11.1. Term. The term of this agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for one (1) year. Thereafter, the Term will renew for successive one (1) year periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
11.2. Termination for Cause. Either party may terminate this agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
11.3. Effects of Termination. Upon termination of this agreement, Contractor shall cease all use of the SaaS and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this agreement: (a) any obligation of Contractor to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this agreement that must survive to fulfill its essential purpose.
12. MISCELLANEOUS.
12.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2.Notices. MCS may send notices pursuant to this agreement to Contractor’s email contact points provided by Contractor, and such notices will be deemed received 24 hours after they are sent. Contractor may send notices pursuant to this agreement to ContractorNotice@measureQuick.com via email, and such notices will be deemed received 72 hours after they are sent. In addition, Contractor is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact LegalNotice@measureQuick.com; and (b) MCS will terminate the accounts of subscribers who are repeat copyright infringers.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this agreement to the extent caused by epidemics, acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, trade restrictions, material shortages, internet or utility deficiencies, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Contractor may not assign this agreement or any of its rights or obligations hereunder without MCS’s express written consent. Except to the extent forbidden in this Section 12.4, this agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Change of Control. Contractor will give notice to MCS in the event of Contractor’s change of control in accord with Section 12.2 (Notice).
12.6. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this agreement will continue in full force and effect.
12.7. No Waiver. Neither party will be deemed to have waived any of its rights under this agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this agreement will constitute a waiver of any other breach of this agreement.
12.8. Choice of Law & Jurisdiction: This agreement will be governed by the laws of the State of Ohio, including without limitation applicable U.S. law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties hereby irrevocably consent to the personal jurisdiction and the exclusive venue of the federal and state courts located in Summit County, Ohio. This Section 12.8 and below Section 12.9 Dispute Resolution govern all claims arising out of or related to this agreement, including without limitation tort claims.
12.9. Dispute Resolution. Other than to enforce Contractor’s payment obligations to MCS, the parties hereby are required to mediate their dispute before instituting any legal actions in any court for any cause of action. The parties hereby agree to mediate using the staff at the medaition department for Cuyahoga County Common Pleas Court Ohio. Mediator fees, if any, shall be apportioned equally between Contractor and MCS. If the parties are unable to mediate in good faith, then the parties hereby agree to binding arbitration using a court located in Summit County Ohio and to limit all discovery to 90 days and omitting depositions from any persons.
12.10. Conflicts. In the event of any conflict between this agreement and any MCS policy posted online, including without limitation the AUP or Privacy Policy, the terms of this agreement will govern.
12.11. Construction. The parties agree that the terms of this agreement result from negotiations between them. This agreement will not be construed in favor of or against either party by reason of authorship.
12.12. Technology Export. Contractor shall not: (a) permit any third party to access or use the SaaS in violation of any U.S. law or regulation; or (b) export any software provided by MCS or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Contractor shall not permit any third party to access or use the SaaS in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.13. Entire agreement. This agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.14. Amendment. MCS may amend this agreement from time to time by posting an amended version at its Website and sending Contractor written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Contractor first gives MCS written notice of rejection of the amendment. In the event of such rejection, this agreement will be deemed terminated by Contractor Article 11, Term & Termination. Contractor’s continued use of the Service following the effective date of an amendment will confirm Contractor’s consent thereto. This agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. MCS may revise the Privacy Policy and Acceptable Use Policy at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Contractor’s rights or protections, notice and consent will be subject to the requirements above in this Section 12.14.