Mashgin Terms of Service

IMPORTANT, READ CAREFULLY:

"Important, read carefully:

Customer’s use of and access to Mashgin products and services is conditioned upon customer’s compliance with and acceptance of these terms and conditions.

By accepting this agreement—whether by (1) clicking a box to indicate acceptance, or (2) signing an order form that references this agreement —the customer agrees to be bound by its terms. If the individual accepting this agreement is doing so on behalf of a company or other legal entity, they represent that they have the authority to bind that entity to these terms and conditions. In such cases, “customer” refers to the entity. If the individual does not have this authority or does not agree to these terms, they must not accept this agreement or use the services.

By purchasing, using, or otherwise accessing any of the services, customer expressly agrees to be bound by these terms and conditions and all order forms and policies incorporated herein by reference (the “agreement”). The services are not available to persons who are not legally eligible to be bound by these terms.

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1. Services
   
   1. Services. Subject to and conditioned upon Customer’s compliance with the terms and conditions of this Agreement, during the Term (defined below), Mashgin will provide Customer with access to the Services specified in an Order on a non-exclusive, non-transferable, non-sublicenseable basis. Such use is limited to Customer’s internal business purposes and the Equipment, specifications, or other limitations specified in the Order. 
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   2. Professional Services. Mashgin may perform Professional Services as described in an Order or Statement of Work separately agreed to by the Parties in writing, which shall incorporate the terms and conditions of this Agreement by reference. Customer will provide Mashgin all reasonable cooperation required for Mashgin to perform the Professional Services, including without limitation timely access to any reasonably required Customer materials, information, or personnel. To the extent the Professional Services result in any software code or other tangible work product (“Work Product”), all such Work Product will remain owned solely and exclusively by Mashgin and may be used by Customer solely in connection with Customer’s authorized use of the Services under this Agreement, except for any Work Product comprising solely of reports, which Customer shall own and may use and exploit freely. 
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   3. Service Levels; Support. Mashgin will provide the service level and support for the Services within the Additional Services portion of the Order Form.
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   4. Insurance. During the Term, Mashgin will carry commercially reasonable insurance policies and coverage, commensurate with its obligations to Customer under this Agreement. 
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   5. Third Party Services. Customer acknowledges and agrees that the Services and the Equipment may, at the request of Customer, operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (including, without limitation, payment processor devices) (“Third Party Services”). Mashgin shall not be responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Mashgin does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
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2. EQUIPMENT DELIVERY AND SETUP; SOFTWARE ACCESS.
   
   1. Access to Equipment. Subject to terms of this Agreement, during the Term (defined below), Mashgin will provide Customer with access to the equipment specified in the applicable Order in accordance with the terms therein (collectively, the “Equipment”).
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   2. Delivery; Setup. Mashgin shall deliver all Equipment in accordance with the terms specified in the applicable Order (ex-works at the shipping facility, Incoterms 2020). Without limiting the foregoing, Customer shall pay all fees relating to the delivery of the Equipment (including, without limitation, third party shipping charges and insurance coverage). If Mashgin and Customer mutually agree to set up of the Equipment by Customer or Customer’s third party, they shall set up the Equipment for use in accordance with Mashgin’s Documentation (including, without limitation, setup of any Third Party Services and any integration with Customer’s internal systems). Customer shall have a maximum of sixty (60) days from receipt of Equipment to activate and set up the Services before fees begin.
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   3. Use; Restrictions. Customer shall handle, operate and maintain the Equipment under proper conditions to preserve quality and prevent damage or other loss, and Customer shall be solely liable for any damage or loss thereof. In the event of damage or loss of Equipment, Customer will promptly notify Mashgin of any such damage or loss, and pay Mashgin the replacement value of such Equipment within sixty (60) days of such notification. Customer shall not make any modification, alteration or addition to any Equipment without the prior written consent of Mashgin.
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   4. Equipment Acceptance. Customer may inspect the Equipment up to sixty (60) days upon receipt (the “Inspection Period”). If during such Inspection Period Customer finds a material defect in any such Equipment, Customer shall reject such Equipment by notifying Mashgin of such rejection within the Inspection Period. As Customer’s sole and exclusive remedy for a rejected Equipment, and as Mashgin’s sole and exclusive liability, Mashgin shall replace such rejected Equipment as soon as commercially practicable at its sole expense.
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   5. Return. At the end of the Term (or at any time that Mashgin provides Customer with new Equipment), Customer shall have sixty (60) days to return any Equipment then in its possession to Mashgin in good condition, normal wear and tear excepted, to such address as directed by Mashgin. Customer shall be liable for any damage or other loss of Equipment during return transit. If Customer fails to return any Equipment within sixty (60) days after the end of the Term or upon its replacement by Mashgin, Customer will be liable for such Equipment and, at Mashgin’s sole discretion, Customer must (x) continue to pay any applicable fees set forth in the Order until such Equipment is returned (or until Mashgin has received the replacement value of such Equipment) or (y) pay Mashgin the replacement value of such Equipment within sixty (60) days’ after Mashgin’s request. For purposes of clarity, the replacement value of any individual item of Equipment will be determined by Mashgin in its reasonable discretion.
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   6. Software. Software provisioned to the Customer hereunder is considered part of the Services, and Mashgin hereby grants Customer access to the Software on a non-exclusive, non-transferable, non sublicenseable basis during the Term, solely as installed on the Equipment and for Customer’s use of the Equipment provided hereunder for its intended purpose, in each case strictly in accordance with any Documentation. Customer acknowledges that the Equipment and/or Software may include features to prevent use after the Term and/or use inconsistent with this Agreement.
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3. RESTRICTIONS; RESPONSIBILITIES.
   
   1. Cooperation. Customer will cooperate with Mashgin in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as Mashgin may reasonably request.
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   2. Account Security and Customer Responsibilities. Customer has and will retain sole responsibility for: (i) all Customer Data , including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer’s information technology infrastructure, including computers, software, databases, electronic systems used in connection with the Services, and networks, whether operated directly by Customer or through the use of third-party platforms or Third Party Services ("Customer Systems"); (iv) the security and use of Customer’s and its Authorized Users’ access credentials; and (v) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer will also cooperate with Mashgin in establishing such credentials and policies to protect the same. Customer will be responsible for maintaining the security of Customer’s credentials, and for all uses of Customer’s account with or without Customer’s knowledge or consent. Customer shall be responsible for the acts or omissions of any person who accesses the Equipment, and any Authorized User who accesses the Services.
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   3. Restrictions. Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble, physically access, or otherwise attempt to discover the source code, object code or underlying structure, ideas, trade secrets or algorithms of the Services, the Professional Services or any Software; (ii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; (iii) use the Services or Software except to process bona fide transactions for its end users; or (iv) use the Services or Software other than in accordance with this Agreement, all Documentation, and in compliance with all applicable laws and regulations. 
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4. INTELLECTUAL PROPERTY AND DATA OWNERSHIP; FEEDBACK.
   
   1. Mashgin IP. Customer acknowledges that, as between Customer and Mashgin, Mashgin owns all right, title, and interest, including all intellectual property rights, in and to the Mashgin IP (and, with respect to Third-Party Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Services). 
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   2. Customer Data. Mashgin acknowledges that, as between Mashgin and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants Mashgin a limited, worldwide, royalty-free, fully paid up right and license during the Term to use the Customer Data solely to provide the Services. 
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   3. Usage Data. Customer acknowledges that, as between Mashgin and Customer, Mashgin owns all right, title, and interest, including intellectual property rights, in and to the Usage Data. Mashgin may freely exploit its ownership rights in aggregated Usage Data for any lawful purpose, including for training machine learning and other artificially intelligent algorithms as part of developing its Software, or otherwise enhancing and improving the Services (provided that such Usage Data does not contain any Personal Data of Customer or other identifiable Customer Data).
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   4. UPC Data. Customer acknowledges that aggregated UPC Data is critical to the functioning of the Services and Mashgin’s ability to provision the Services to its customers. To the extent Customer has any rights in UPC Data, Customer hereby grants Mashgin a perpetual, worldwide, irrevocable, non-exclusive, royalty-free, fully paid up, transferable, sublicenseable through multiple tiers, right and license to use and exploit UPC Data to provide and improve the Services and its other products and services. 
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   5. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Mashgin in any medium, suggesting or recommending changes to the Mashgin IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Mashgin is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.
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5. FEES; TAXES.
   
   1. Fees. Customer shall pay Mashgin any applicable fees set forth in the applicable Order (the “Fees”) using ACH to Mashgin’s specified bank account.
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   2. Payment Schedule. Mashgin shall invoice Customer for the fees set forth in the Order. Customer shall pay all invoices within thirty (30) days of invoice date, or the Services may be suspended or terminated. Unpaid Fees are subject to a finance charge of one and a half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
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   3. Taxes. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Mashgin’s net income) unless Customer has provided Mashgin with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
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6. CONFIDENTIAL INFORMATION.
   
   1. Definition. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Except for Personal Data, Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information. 
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   2. Duty. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
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   3. Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
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7. DATA SECURITY AND PERSONAL INFORMATION.
   
   1. Security Measures. Mashgin will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Customer Data and Account Data (including Personal Data) from unauthorized access, use, alteration, or disclosure. 
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   2. Processing of Personal Data. Mashgin’s rights and obligations with respect to Personal Data that it collects directly from Customer are set forth and governed by the terms of this Agreement, and in Mashgin’s Data Processing Addendum . To the extent Customer provides Personal Data to Mashgin within Customer Data, Mashgin will act as a processor or service provider with respect to such information, while Customer shall act as a controller, as each of those terms is defined under applicable laws and in the Data Processing Addendum. 
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   3. Account Data as Personal Data. Notwithstanding anything to the contrary in this Agreement, Mashgin may process Account Data: (i) to manage the relationship with Customer; (ii) to carry out Mashgin’s core business operations, such as accounting, audits, tax preparation and for filing and compliance purposes; (iii) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Services, and to prevent harm to Mashgin, Customer, and Mashgin’s other Customers; (iv) for identity verification purposes; and (v) to comply with applicable laws, rules, and regulations relating to the processing and retention of Personal Data to which Mashgin is subject. 
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8. TERM; TERMINATION.
   
   1. Term. Subject to the terms of this Agreement, the term of this Agreement shall be for the period of time specified in an Order (“Initial Term”), and shall automatically renew for successive one year (1) periods (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either Party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Notwithstanding the foregoing, if this Agreement expires pursuant to a notice of non-renewal, each Order with a term extending beyond the termination of this Agreement shall continue until the end of the term provided in such Order and shall remain subject to all terms of this Agreement.
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   2. Termination. In the event of any material breach of this Agreement, the non-breaching Party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching Party (or immediately in the case of a breach of Section 4.3); provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such thirty (30) -day period. Either Party may terminate this Agreement immediately (a) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (b) upon the other Party’s making an assignment for the benefit of creditors, or (c) upon the other Party’s dissolution or ceasing to do business without a successor.
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   3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Mashgin IP, Customer shall delete, destroy, or return all copies of the Mashgin IP and, upon Mashgin’s written request, certify in writing to the Mashgin that the Mashgin IP has been deleted or destroyed. Prior to termination or expiration of this Agreement, Customer shall make reasonable efforts to export all Customer Data and applicable Usage Data it requires from the Services. Notwithstanding the foregoing, Mashgin will retain and host Customer Data and Usage Data of Customer for an additional thirty (30) days following the expiration or termination of this Agreement to allow Customer time to achieve the foregoing. No expiration or termination will affect Customers obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
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   4. Survival. All payment obligations and Sections 3.5, 5, 6, 7, 9.3, 12, and 13 of this Agreement shall survive termination or expiration of this Agreement.
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9. WARRANTY DISCLAIMER. THE SERVICES (INCLUDING ALL EQUIPMENT AND SOFTWARE) ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND, AND (B) MASHGIN (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. MASHGIN IS NOT PROVIDING ANY PERFORMANCE DECISIONS OR RECOMMENDATIONS. HOW INFORMATION IS INTERPRETED AND USED BY THE CUSTOMER IS AT THE SOLE DISCRETION AND RISK OF THE CUSTOMER. MASHGIN DOES NOT WARRANT OR GUARANTEE ANY RESULTS OR THAT ANY USER WILL ACHIEVE A CERTAIN LEVEL OF PERFORMANCE AS A RESULT OF THE SERVICES.
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10. INDEMNIFICATION.
    
    1. Mashgin Indemnification. Mashgin shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any unaffiliated third-party claim, suit, action, or proceeding (“Third-Party Claim”) brought against Customer alleging that the Mashgin IP, or any use of the Mashgin IP in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights. If such a Third-Party Claim is made or appears possible, Customer agrees to permit Mashgin, at Mashgin’s sole discretion: to (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Mashgin determines that neither alternative is reasonably commercially available, Mashgin may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 11.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Mashgin or authorized by Mashgin in writing; (ii) modifications to the Services not made by Mashgin; (iii) Customer Data; or (iv) Third-Party Services. 
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    2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Mashgin’s option, defend Mashgin from and against any Losses resulting from any Third-Party Claim alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other rights and any Third-Party Claims based on Customers or any Authorized Users (i) gross negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; or (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Mashgin or authorized by Mashgin in writing. 
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    3. Indemnification Procedures. Indemnification under this Section is conditioned upon (i) the indemnified Party providing the indemnifying Party with prompt, written notice of any Third-Party Claim (provided failure to provide such notice shall only relieve an indemnifying Party of its obligations if it is prejudiced by failure to receive such notice); (ii) the indemnified Party providing the indemnifying Party with reasonably requested assistance and cooperation in the defense and settlement of any Third-Party Claim at the indemnifying Party’s sole cost and expense; (iii) the indemnifying Party being given sole control over the defense and settlement of any Third-Party Claim (provided that the indemnifying Party shall not settle any Third-Party Claim without the indemnified Party’s prior written consent, with such consent not to be unreasonably withheld or delayed; and (iv) the indemnified Party being given the right to participate in the defense and settlement of any Claim with counsel of its own choosing at its sole cost and expense. 
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    4. Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMERS SOLE REMEDIES AND MASHGIN’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 
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11. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE SERVICES, PROFESSIONAL SERVICES, EQUIPMENT AND SOFTWARE), THE DELAY OR INABILITY TO USE ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE SERVICES, PROFESSIONAL SERVICES, EQUIPMENT AND SOFTWARE), INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES OR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF MASHGIN HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF MASHGIN, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO MASHGIN HEREUNDER FOR THE TWELVE-MONTH PERIOD (AND ASSOCIATED WITH THE SITE WHERE THE EVENT GIVING RISE TO THE LIABILITY OCCURRED), ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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12. MISCELLANEOUS. 
    
    1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
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    2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
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    3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
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    4. Amendment and Modification. No amendment or modification to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
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    5. Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
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    6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
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    7. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. 
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    8. Dispute Resolution. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other, must be finally settled by arbitration in San Francisco, California using the English language in accordance with the Comprehensive Arbitration Rules and Procedures of JAMS (formerly operating as, Judicial Arbitration and Mediation Services, Inc.) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator will be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator(s) will have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party will have the right to seek equitable relief from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in San Francisco County.
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    9. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Mashgin (including delegating portions of the Agreement to an Operator not specified in an Order). Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 
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    10. Export Regulation. The Mashgin IP utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US. 
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    11. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
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    12. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its confidentiality obligations or Software usage restrictions hereunder would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. 
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    13. Publicity. Mashgin may identify Customer as a user of the Services and may use Customers name, logo, and other trademarks in Mashgin’s Customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.