Posted/Revised: December 6, 2019

MPOWR ENVISION TERMS OF SERVICE

These MPOWR Envision Terms of Service (referred to periodically as the “Agreement” or “Terms of Service”) govern your access to and use of the MPOWR Envision software service (referred to herein as “MPOWR Envision” or the “System”). MPOWR Envision is owned and licensed by SupplyCore Inc., doing business as “MPOWR,” an Illinois corporation whose principal place of business is 303 N. Main Street, Ste 800, Rockford, IL 61101 (referred to herein as “MPOWR”). These Terms of Service are an integral component of the MPOWR Envision Order process and, by proceeding to create an MPOWR Envision account and use the System, you agree to be bound as follows:

(a)  If you are creating an Order for a new instance of MPOWR Envision, you are agreeing to these Terms of Service on your own behalf and on behalf of the entity or organization for which you are the authorized representative.

(b)  If you are the Authorized User of an existing instance of MPOWR Envision, you individually agree to these Terms of Service.

BY CREATING AN MPOWR ENVISION ACCOUNT, YOU REPRESENT AND WARRANT THAT YOU HAVE READ THESE TERMS OF SERVICE, THAT YOU UNDERSTAND THESE TERMS OF SERVICE, AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT CREATE AN MPOWR ENVISION ACCOUNT AND YOU MAY NOT USE THE SYSTEM.

IF YOU ARE CREATING AN ORDER FOR A NEW INSTANCE OF MPOWR ENVISION FOR YOUR ORGANIZATION, YOU REPRESENT AND WARRANT THAT: (a) YOU ARE THE AUTHORIZED REPRESENTATIVE OF THE ORGANIZATION FOR WHICH YOU ARE CREATING AN ORDER, AND THAT YOU HAVE ALL REQUISITE POWER AND AUTHORITY TO BIND YOUR ORGANIZATION TO THE UNDERTAKINGS AND OBLIGATIONS CONTAINED HEREIN; (b) YOUR ORGANIZATION IS A LEGAL ENTITY OR SOLE PROPRIETORSHIP DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING IN THE STATE OR TERRITORY WITHIN WHICH IT IS ORGANIZED; AND (c) THIS AGREEMENT CONSTITUTES THE LEGAL, VALID, AND BINDING OBLIGATIONS OF YOUR ORGANIZATION, ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS.

1.  DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this

1.1  “Authorized User” means any individual authorized by Customer to access and use the System who has also agreed to these Terms of Service.

1.2  “AUP” means MPOWR’s Acceptable Use Policy currently posted at mpowr.com/acceptable-use-policy.

1.3  “Customer” means the individual, entity, sole proprietorship, or other organization identified during the account setup and payment process when a new Order is created.

1.4  “Customer Data” means data in electronic form managed or stored by the System and provided or stored by or on behalf of Customer, including without limitation Authorized Users.

1.5  “Documentation” means information about the use and operation of the System which is provided to Authorized Users through the controls made available within their accounts.

1.6  “Privacy Policy” means MPOWR’s Privacy Policy, currently posted at mpowr.com/privacy-policy.

1.7  “Order” means MPOWR’s applicable online order page(s), flows, in-product screens or other MPOWR-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use

1.8  “Subscription” means a license to access the System for the term and fees specified during Customer’s account creation process.

2.  USE OF THE SYSTEM IN GENERAL.

2.1  Use of the System. Subject to the timely payment of all applicable license fees and Customer’s compliance with these Terms of Service, MPOWR grants to Customer and its Authorized Users a revocable, non-exclusive, non-transferrable, non-sublicensable limited right to access and use the System during the Term of this Agreement and solely for Customer’s internal business operations.

2.2  Support. During the Subscription term, MPOWR will provide support for the System in accordance with the applicable Support Services Plan, currently posted at mpowr.com/support-services. Customer’s sole and exclusive remedy with respect to any Support Services Plan shall be to terminate this Agreement as described in Section 11 below.

2.3  Customer Data. Customer hereby grants to MPOWR a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for MPOWR to provide the System to Customer and its Authorized Users. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data.

2.4  Service Levels. Subject to Customer’s use of the System in accordance with this Agreement and the Documentation, MPOWR shall use commercially reasonable efforts to make the System available 24 hours per day, 7 days a week, except for: (a) planned downtime (for which MPOWR shall give advance electronic notice) and (b) any unavailability caused by circumstances beyond MPOWR’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving MPOWR employees), Internet service provider failure or delay, Non-MPOWR Application, or denial of service attack. Certain MPOWR products and services may also be covered under the MPOWR Service Level Agreement found at mpowr.com/sla. 

2.5  Documentation. Customer may reproduce and use the Documentation solely as necessary to support Authorized Users’ use of the System.

2.6  System Revisions. MPOWR may change the features and functionality of the System at any time. In the event that MPOWR makes a change to the System’s features or functionality which has a material impact upon Customer’s use of the System, Customer may (as its sole and exclusive remedy) terminate this Agreement as described in Section 11 below.

2.7  Passwords and Access Credentials. Each Authorized User is responsible for keeping his or her passwords and access credentials associated with the System confidential. Customer is responsible for managing the credentials and access rights of its Authorized Users.

3.  PAYMENT.

3.1  Subscription Fee. Customer shall pay MPOWR the fees as described on the Order and as selected during the account creation process (the “Subscription Fee”). Customer authorizes MPOWR to automatically charge the payment card provided during the account creation process, and Customer agrees to maintain a current and valid payment card on file as a payment mechanism for the applicable Subscription Fees.

3.2  Adding Users. You may add users, or otherwise increase your use of the System by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription

3.3  Payment Requirements. In the event of a late payment, Customer shall pay interest charges from the time the Subscription Fee was due at the rate that is the lower of 1.75% per month or the highest rate permissible under applicable law (except for amounts under reasonable and good faith dispute). MPOWR will not be required to refund Subscription Fees under any circumstances. In the event of a full or partial default in payment exceeding 7 days after the date any Subscription Fees are due, Customer agrees that: (a) all access to the System may be terminated; (b) the amount due for the term of the Agreement will accelerate and become immediately due and payable, and (c) Customer shall pay for all reasonable costs of collection, including collection agency fees, court costs and attorney’s fees (including those which are incurred prior to litigation). No acceptance by MPOWR of any payment marked with any restrictive or conditional endorsement will be deemed a waiver of any rights MPOWR may have or reserve under the law.

3.4  Taxes. Amounts due under this Agreement are payable to MPOWR without deduction and are net of 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 withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay MPOWR the withheld or deducted amount. However, the preceding two sentences do not apply to taxes based on MPOWR’s net income.

4.  CUSTOMER DATA & PRIVACY.

4.1  Privacy Policy. The Privacy Policy applies only to the System and does not apply to any third party website or service linked to the System or recommended or referred through the System or by MPOWR’s

4.2  Data Accuracy. MPOWR will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Authorized Users.

4.3  Data Deletion. MPOWR may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.

4.4  Aggregate Data. Notwithstanding any other provision in this Agreement, Customer and each Authorized User grants MPOWR a non-exclusive, royalty-free, perpetual license to use the Customer Data to create de-identified, anonymous, pseudonymized and/or aggregate data by removing or masking personally identifiable components (such as individual and organizational names, addresses, and other attributes that can be used to specifically identify an individual or organization). MPOWR will create and use de-identified, anonymous and pseudonymized data in accordance with the laws and regulations applicable to such data.

4.5  Use of Customer Data. As between the parties, and subject to any provisions of this Agreement to the contrary, Customer represents and warrants that it has the necessary right, title and interest to use, process, upload and store the Customer Data. Unless it receives Customer’s prior written consent or as otherwise provided in this Agreement or the Privacy Policy, MPOWR: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation MPOWR’s other customers, except subcontractors, service providers and other third-parties MPOWR uses to support its business and operate or maintain the System. Notwithstanding the foregoing, MPOWR may disclose Customer Data as required by applicable law or by proper legal or governmental authority. MPOWR shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

4.6  Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. MPOWR offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

4.7  Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to MPOWR’s computers or other media, any: (a) patient medical or other health information protected by the Health Insurance Portability and Accountability Act, or similar U.S. or foreign laws and regulations; (b) student education information protected by the Family Educational Rights and Privacy Act of 1974; (c) Cardholder Data, as that term is defined in the PCI standards; (d) information subject to regulation or protection by the Gramm-Leach-Bliley Act (or related rules or regulations); or (e) special categories of personal data as defined under the EU Data Protection Legislation; (collectively, the “Excluded Data”). CUSTOMER RECOGNIZES AND AGREES THAT: (i) MPOWR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS FOR EXCLUDED DATA OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (ii) MPOWR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

5.  CUSTOMER AND AUTHORIZED USER RESPONSIBILITIES & RESTRICTIONS.

5.1  Acceptable Use. Customer and each Authorized User shall comply with the AUP. Customer and its Authorized Users shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 1, including without limitation by Authorized Users, MPOWR may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as MPOWR may have. Neither this Agreement nor the AUP requires that MPOWR take any action against Customer or any Authorized User or other third party for violating the AUP, this Section 5.1, or this Agreement, but MPOWR is free to take any such action it sees fit.

5.2  Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify MPOWR immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.

5.3  Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.

5.4  Authorized Users; System Access. Customer is responsible and liable for: (a) Authorized Users’ use of the System, including without limitation unauthorized conduct and any conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.

6.  IP & FEEDBACK.

6.1  IP Rights in the System. MPOWR retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components, except to the limited extent that this Agreement specifically sets forth Customer license rights to the Documentation. Customer recognizes that the System and its components are protected by copyright and other laws.

6.2  Feedback. MPOWR has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or Authorized Users provide to MPOWR, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict MPOWR’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Authorized User in question. Feedback will not be considered confidential information under any agreements or provisions relating to non-disclosure obligations. In consideration for the potential to receive improved features and functionality within the System, Customer and each Authorized User hereby irrevocably transfers, assigns, and conveys to MPOWR all Feedback provided with respect to the System. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of MPOWR’s products or services.)

7.  CONFIDENTIAL INFORMATION.Confidential Information” refers to the following items one party (“Disclosing Party”) discloses to the other party (“Receiving Party”): (a) with respect to Customer, any Customer Data; and (b) with respect to MPOWR, the Documentation, whether or not marked or designated confidential, and any other nonpublic, sensitive information relating to the System or MPOWR’s business and pricing models. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Receiving Party’s possession at the time of disclosure; (ii) is independently developed by Receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Receiving Party’s improper action or inaction; or (iv) is approved for release in writing by Disclosing Party.

7.1  Nondisclosure. Neither Party shall use Confidential Information for any purpose other than authorized under or related to this Agreement (the “Purpose”). Without limiting the generality of the foregoing, each Party 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. The Receiving Party shall promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information that comes to its attention. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense.

7.2  Injunction. The Receiving Party agrees that breach of this Article 7 would cause the Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

7.3  Termination & Return. With respect to each item of Confidential Information, the obligations of Section 1 above (Nondisclosure) will terminate 5 years after the date of disclosure; provided that such obligations related to Confidential Information constituting the Receiving Party’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, the Receiving Party shall return all copies of Confidential Information to the Disclosing Party or certify, in writing, the destruction thereof.

7.4  Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Each Party will retain all right, title, and interest in and to all of its Confidential Information.

7.5  Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b) (the “DTSA”), each Party 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 complaint 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.  NO REPRESENTATIONS OR WARRANTIES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CUSTOMER AND EACH AUTHORIZED USER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE. MPOWR PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AS TO ACCURACY, COMPLETENESS, OR ADEQUACY OF INFORMATION, 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) MPOWR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) MPOWR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.

9.  INDEMNIFICATION. Customer shall indemnify and defend MPOWR against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Authorized Users or by Customer’s employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (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 System through Customer’s account, including without limitation by Customer Data; (d) claims that use of the System through Customer’s account, other Authorized 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; and (e) infringement claims arising out of or related to the conditions listed in Subsections 9(a) through 9(d) above. Indemnified Claims pursuant to the preceding sentence also include claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Indemnified Claims listed above in this Section 9 include, without limitation, claims arising out of or related to MPOWR’s negligence.

10.  LIMITATION OF LIABILITY. MPOWR’S CUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND CUSTOMER’S OR ANY AUTHORIZED USER’S USE OF THE SYSTEM WILL NOT EXCEED $500.00. IN NO EVENT WILL MPOWR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S OR AN AUTHORIZED USER’S USE OF THE SYSTEM. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF MPOWR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S OR AN AUTHORIZED USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 10, MPOWR’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, MPOWR’S LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 10 APPLY LIKEWISE TO MPOWR’S AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.

11.  TERM & TERMINATION.

11.1  Term. The term of this Agreement (the “Term”) will commence on the date that a new Order is created on behalf of the Customer and shall continue until terminated pursuant to Section 11.2 or 11.3. With respect to each Authorized User, the Term of this Agreement shall continue for such time that he or she has access to an account associated with the Customer.

11.2  Termination Without Cause. Customer’s initial Term will continue for the period selected during the Order process, or a different period selected by Customer within Customer’s account, and shall automatically renew for an equivalent period unless either party notifies the other party prior to the expiration of the then-current Term of its intent to not renew. Customer will provide any notice of non-renewal through the means we designate, which may include account settings in the System or contacting our support team. Cancelling your Subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged

11.3  Termination for Cause. Either party may terminate this Agreement immediately for the other’s material breach of these Terms of Service. Without limiting MPOWR’s other rights and remedies, MPOWR may suspend or terminate an Authorized User’s access to the System at any time, without advanced notice, if MPOWR reasonably concludes such Authorized User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects MPOWR to potential liability.

11.4  Effects of Termination. Upon termination of this Agreement, Customer and its Authorized Users shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. Customer must remove its Customer Data from the System within 30 days after the date of expiration or termination of the applicable Subscription(s). The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; and (b) the rights and licenses granted to MPOWR in Sections 2.2 and 4.4, all representations and warranties, Section 6 (IP & Feedback), Section 7 (Confidential Information), Section 8 (No Representations or Warranties), Section 9 (Indemnification), Section 10 (Limitation of Liability), and 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. MPOWR may send notices pursuant to this Agreement to Customer’s email address provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to MPOWR, Inc. Attn: Office of Legal Counsel, 303 N. Main Street, Ste 800, Rockford, IL 61101, and such notices will be deemed received 72 hours after they are sent.

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 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, or other causes beyond the performing party’s reasonable control.

12.4  Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without MPOWR’s express written consent. Except to the extent forbidden in this Section 4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns. MPOWR may transfer or assign all or any part of its rights under this Agreement and will have the right to delegate or use third-party contractors to fulfill its duties and obligations under this Agreement and in connection with the System.

12.5  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.

12.6  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.

12.7  Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of Illinois, including without limitation applicable federal 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 consent to the personal and exclusive jurisdiction of the federal and state courts of Rockford, Illinois. This Section 7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

12.8  Conflicts. In the event of any conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (a) this main body of this Agreement; and (b) any MPOWR policy posted online, including without limitation the AUP or Privacy Policy. No attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.

12.9  Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by MPOWR 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, Customer shall not permit any third party to access or use the System in, or export such software to, a country subject to a United States embargo or sanctions (a current list of such countries and territories is available from the U.S. Department of the Treasury).

12.10  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.

12.11  Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

12.12  Amendment. MPOWR may amend this Agreement, the AUP or the Privacy Policy from time to time by providing Customer and each Authorized User with electronic notice to the email account provided to MPOWR through the System from time to time. Customer and any Authorized User’s continued use of the System after such notice will constitute acceptance of the amended terms. Notwithstanding the foregoing, if MPOWR reasonably determines that any amendment of the Privacy Policy is both material and retroactive in application, MPOWR will obtain the express affirmative consent of Customer prior to applying the new Privacy Policy to Customer’s information. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.