EmbedOps Platform – License Agreement

 
Dojo Five LLC

EMBEDOPS PLATFORM LICENSE AGREEMENT

 

This EmbedOps Software License Agreement (this “Agreement”) is made effective as of DATE (the “Effective Date”), by and between Dojo Five LLC, a Minnesota limited liability company, 413 Wacouta St., Suite 300, St. Paul, Minnesota 55101 (“Dojo Five”) and Customer (“Customer”).

 

WHEREAS, Dojo Five has developed and provides its customers with the EmbedOps online software application for use in developing and maintaining embedded software applications and systems; and

 

WHEREAS, Customer desires to obtain a subscription license to access and use the EmbedOps software for its internal business purposes.

 

THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the parties agree as follows:

 

1.              Definitions.

1.1           Authorized User” means an employee, agent, consultant, or contractor of Customer who is authorized to access and use the Software for Customer’s business purposes pursuant to this Agreement.

1.2           Customer Data” has the meaning stated in Section 4.1.

1.3           Fees” means the fees that the Customer agrees to pay for the Software as provided by the current Customer Order entered pursuant to this Agreement.

1.4           Intellectual Property Rights" means all worldwide rights in intangible property existing by statute, common law, or contract whether or not registered or perfected, including all (a) patent or other rights in inventions; (b) rights in works of authorship including copyrights and mask work rights; (c) trade secret rights; and (d) any other analogous or similar proprietary rights now existing, or hereafter filed, issued, or acquired.

1.5           Off-Boarding Software” shall have the meaning and include all components or deliverables stated in the Customer Order.

1.6           Software” means EmbedOps online software application and services provided by Dojo Five to Customer pursuant to this Agreement. When used herein “Software” shall include the Off-Boarding Software as the context requires.

1.7           Term” means the term of Customer’s subscription to the Software.

1.8           Updates” means any updates, bug fixes, patches, error corrections, or new releases of the Software that Dojo Five provides to Customer pursuant to this Agreement.

2.              Customer Order.  Dojo Five will provide the Software to Customer on the specific terms stated in one or more order forms agreed to with Customer pursuant to this Agreement (the “Customer Order”). The Customer Order includes a functional description of the Software, the Term, the Fees, and setup or any other configuration services to be provided by Dojo Five. The Customer Order will also state any data or other deliverables to be provided to Dojo Five by the Customer in connection for use with the Software. Any changes or additions to a Customer Order must be in writing and approved by an authorized representative of each party. Dojo Five and Customer may enter multiple Customer Orders under this Agreement, provided each such Customer Order is signed by an authorized representative of each party.

3.              Access and Use.

3.1           Usage Rights.  Subject to the terms and conditions of this Agreement, Dojo Five hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable right to access and use the Software for the Term for Customer’s internal business purposes.

3.2           Responsibility for Authorized Users.  Customer may grant access to the Software to its Authorized Users in its discretion subject to the usage restrictions stated in Section 3.5 and compliance with the other terms of this Agreement. Customer is responsible and liable for all use of the Software by its Authorized Users, directly or indirectly. Any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make all Authorized Users aware of this Agreement's provisions as applicable to their use of the Software, and shall cause Authorized Users to comply with such provisions.

3.3           Off-Boarding Software Use.  If Dojo Five provides Customer with Off-Boarding Software upon expiration or other termination of Customer’s subscription to the Software, Customer shall have a nonexclusive, irrevocable, fully-paid, worldwide, perpetual, and fully transferable right and license to use, execute, copy, reproduce, and modify the Off-Boarding Software for Customer’s internal business purposes, including the right to create derivative versions of the Off-Boarding Software as necessary to maintain its ordinary and intended functionality. Customer shall have no right to sublicense or otherwise distribute the Off-Boarding Software without Dojo Five’s consent.

3.4           Open Source Software.  Any open source or free software code (“Open Source Software”) incorporated into or provided with the Software is provided subject to the express terms of the license under which Dojo Five received the Open Source Software. Customer shall be bound by the same Open Source Software license terms. For the full term of this Agreement, Dojo Five shall maintain a current record of all Open Source Software used or provided with the current version of the Software and the name of the license governing such code. Dojo Five will provide Customer with access to this record upon request.

3.5           Use Restrictions.  Customer and Authorized Users shall not do any of the following: (a) attempt to rent, license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Software available to any third party; (b) copy or create any derivative works or improvements based on the Software, either directly or through any third party; (c) attempt to produce a source listing, decompile, disassemble, or otherwise reverse engineer the Software; (d) interfere with or disrupt the performance of the Software for any reason, or attempt to gain unauthorized access to any data using the Software; (e) transmit, transfer, or otherwise provide any virus, worm, malware, or other malicious computer code using the Software; (f) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights, privacy rights, or other legal rights of any third party; (g) use the Software to transmit any text, files, materials, photographs, video, or other content that is unlawful, threatening, harassing, profane, tortuous, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, displays sexual acts, is hateful, or that is invasive of another’s privacy or publicity rights or (h) remove or obscure any notices or markings, including without limitation, copyright, trademark, or confidentiality notices, or ownership notices on any part of the Software, including any screen displayed by such Software.

3.6           Reservation of Rights. Dojo Five reserves all ownership and Intellectual Property Rights worldwide in and to the Software that are not expressly granted to Customer under this Agreement. Nothing in this Agreement grants Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Software by implication, waiver, or estoppel.

4.              Customer Data; Equipment.

4.1           Definition and Use.  Customer is responsible for all information, software code, electronic files, and other data, in any form or medium, that Authorized Users manage, use, develop, store, maintain, or otherwise process using the Software (the “Customer Data”). Customer is responsible for ensuring that the processing of the Customer Data does not violate the Intellectual Property Rights or other rights of any third party. Customer has sole responsibility for the accuracy, quality, integrity, and legality of the Customer Data. Customer grants Dojo Five a royalty-free, worldwide, non-exclusive right and license to make, use, copy, store, maintain, transmit, and otherwise process the Customer Data as necessary to provide the Software functionality to Customer and perform its other obligations under this Agreement.

4.2           Acceptable Use Standards.  Customer shall use all Customer Data in compliance with all applicable federal, state, local, and international laws and regulations. Customer represents, warrants, and agrees that the Customer Data does not and will not:  (a) contain any content or material that is unlawful, threatening, harassing, profane, obscene, indecent, abusive, tortuous, defamatory, libelous, deceptive, fraudulent, or that violates a person’s privacy, or publicity rights; (b) promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (c) promote or assist in any illegal or unlawful acts; or (d) contain a virus, worm, malware, or other malicious software code.

4.3           Privacy Law Compliance.  Customer is responsible for ensuring that Customer and the Authorized User’s use of the Customer Data with the Software does not violate any applicable privacy laws, rules, or regulations. Customer expressly agrees not to violate the privacy rights of any person by collecting, processing, transmitting, storing, or otherwise accessing the personally identifiable information of any person without such person’s express consent. All use of the Customer Data is at Customer’s own risk, including any damages or losses Customer sustains resulting from a violation of the privacy rights of an Authorized User or any third party.

4.4           Data Security.  Dojo Five shall secure, protect, and maintain the integrity of the Customer Data stored and maintained for use with the Software. Customer and Users are responsible for maintaining the confidentiality of all usernames and passwords required to access and use the Software. If the confidentiality of such information is compromised, Customer shall promptly notify Dojo Five. Customer is responsible for all use of the Software occurring through Customer’s user accounts.

4.5           Customer Equipment.  Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Software, including, without limitation, servers and other electronic devices, operating systems, web server software, network access, and the like (the “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment.

5.              Usage Data.  Dojo Five may monitor Customer’s use of the Software to collect and compile anonymous, aggregated information concerning the use of the Software (“Usage Data”). Dojo Five will have an unrestricted right to store, analyze, evaluate, and use the Usage Data for its own internal business purposes, including improving the features, performance, and functionality of the Software. Dojo Five represents, warrants, and agrees that the Usage Data will not include Confidential Information of Customer, Customer Data, or any information that could be used to identify Customer or any personally identifiable information.

6.              Support and Maintenance.

6.1           Support.  Dojo Five will provide email and text support for the Software from 9:00 a.m. to 5:00 p.m. U.S. Central Time, Monday through Friday, excluding U.S. federal holidays. Support will include assistance with general usage and functionality issues, and software error reporting and fixes. Dojo Five will make reasonable commercial efforts to correct or fix reported software errors promptly after being notified of a problem.

6.2           Maintenance.  Dojo Five will maintain and provide Updates to the Software for the Term subject to Customer’s payment of all agreed upon Fees.

7.              Fees and Payment.

7.1           Fees.  Customer shall pay Dojo Five the Fees set forth in the applicable Customer Order without offset or deduction. Unless this Agreement or the Customer Order states otherwise, Fees are non-refundable for the applicable Term. Customer shall make all payments in U.S. dollars on or before the due date set forth in the Customer Order. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (a) Dojo Five may charge interest on the past due amount at the rate of 1.5% per month or the highest rate permitted under by law, whichever is lower; and (b) Customer shall reimburse Dojo Five for all reasonable costs incurred in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees.

7.2           Taxes.  The Fees and any other amounts payable by Customer under this Agreement exclude sales, use, excise, and other taxes Dojo Five is required to collect. Customer is responsible for all such taxes, and any other charges of any kind imposed by any federal, state, or local governmental or regulatory authority based on the amounts payable by Customer hereunder. Customer has no responsibility for any taxes imposed on Dojo Five's income.

8.              Confidentiality.

8.1           Definition.  In performing this Agreement, Dojo Five and Customer will exchange or have access to certain confidential or proprietary technical, product, financial, and business information of each other (“Confidential Information”). Confidential Information is limited to information which is clearly marked “confidential” or “proprietary” in any readable form, or which a person exercising reasonable business judgment would have understood to be confidential or proprietary under the circumstances of the disclosure.

8.2           Obligations.  Dojo Five and Customer will each hold all Confidential Information of the disclosing party (the “Discloser”) in strict confidence and will only use it to perform their respective obligations and exercise their rights under this Agreement. The party receiving Confidential Information (the “Receiver”) may only disclose it to its employees, agents, consultants, and professional advisors who have a good faith need to know such information for the purposes of this Agreement, provided the person receiving the information has a confidentiality obligation to the Receiver which is at least as protective of the Discloser’s rights as this Agreement. The Receiver shall protect and safeguard Confidential Information against unauthorized disclosure by procedures no less stringent than those it uses for protecting its own confidential or proprietary information of a similar nature, and in any event by use of no less than a reasonable degree of care.

8.3           Limitations.  This Agreement imposes no obligation with respect to information which the Receiver can establish by legally sufficient evidence: (a) is now or hereafter becomes generally known or available to the public through no act or omission by the Receiver; (b) was known by the Receiver prior to receipt from the Discloser and without restriction as to its use or disclosure; (c) is rightfully acquired by the Receiver from a third party who has the right to disclose it and who discloses it without restriction as to its use or disclosure; or (d) is independently developed by the Receiver without access to or use of the Discloser’s Confidential Information.

8.4           Ownership.  Each party retains all Intellectual Property Rights in and to its own Confidential Information.

8.5           Survival.  The confidentiality provisions of this Agreement shall survive its termination for a period of three (3) years, except that Confidential Information qualifying as a trade secret under applicable law shall be protected under this Agreement for as long as it retains such status.

9.              Intellectual Property Rights.

9.1           Software.  As between Customer and Dojo Five, Dojo Five and its licensors owns all right, title, and interest in and to the Software and the Off-Boarding Software, including all Intellectual Property Rights.

9.2           Trademarks.  “Dojo Five” is a trademark of Dojo Five. Customer may not use this trademark without the prior written permission of Dojo Five. All other names, logos, product and service names, designs and slogans used on or appearing in the Software are the trademarks of their respective owners.

9.3           Feedback.  If Customer or any Authorized Users submit comments, ideas, or feedback to Dojo Five regarding the features, functionality, or use of the Software (the “Feedback”), Dojo Five may use such Feedback without any restriction or attribution or compensation to Customer. Customer hereby assigns to Dojo Five on Customer's behalf, and on behalf of its Authorized Users, all right, title, and interest in any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever. Dojo Five’s use of the Feedback shall not require any attribution or compensation to any person.

10.           Warranties and Disclaimers.

10.1        Mutual Warranties.  Dojo Five and Customer are duly organized, validly existing and in good standing under the laws of the respective jurisdictions in which they were formed. Each party has full power and authority to execute, deliver, and perform this Agreement. This Agreement has been duly authorized, executed, and delivered by each party and is its legal, valid, and binding obligation in accordance with its terms. Each party’s obligations under this Agreement shall be performed in compliance with any obligations to third parties and all applicable law, rules, or regulations of any governmental entity or agency.

10.2        Software Warranty.  Dojo Five warrants that the Software (a) will perform in substantial compliance with the functional description stated in the Customer Order for the Term; and (b) will be provided in compliance with all applicable laws, rules, and regulations.

10.3        Limitations.  The warranties set forth in Section 10.2 do not apply and become null and void if Customer breaches any material provision of this Agreement, or if Customer, and Authorized User, or any other person provided with access to the Software by Customer, whether or not in violation of this Agreement: (a) uses the Software on or in connection with any hardware or software not specified for use by Dojo Five in writing; (b) modifies or damages the Software; or (c) misuses the Software, including any use of the Software other than as specified or expressly authorized by Dojo Five in writing.

10.4        Remedy.  If the Software fail to comply with the warranty in Section 10.2, and such failure is not excluded from warranty pursuant to Section 10.3, Dojo Five shall either: (a) repair or replace the Software, provided that Customer provides Dojo Five with all information Dojo Five reasonably requests to resolve the failure, including sufficient information to enable Dojo Five to recreate such failure; or (b) refund the Fees paid for the Software for the period during which the failure occurred, subject to Customer's ceasing further use of the Software. The remedies set forth in this this section are Customer's sole remedies and Dojo Five's sole liability for breaches of the limited warranty stated in Section 10.2.

10.5        Disclaimer.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10.2, THE SOFTWARE IS PROVIDED “AS IS” AND DOJO FIVE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DOJO FIVE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DOJO FIVE MAKES NO WARRANTY THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

11.           Indemnification.

11.1        Dojo Five shall indemnify, defend, and hold harmless Customer its officers, directors, employees, agents, successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs (collectively, “Losses”) incurred by a Customer Indemnitee arising out of or relating to any claim, legal action, demand, arbitration, audit, litigation, citation, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) brought by a third party (other than an affiliate of the Customer Indemnitee) alleging that Customer’s access and use of the Software pursuant to this Agreement infringes the U.S. Intellectual Property Rights of such third party.

11.2        Dojo Five’s indemnification obligations under Section 11.1 do not apply to any Action or Losses arising out of or relating to:

(a)            any modification of the Software made by Customer or anyone other than Dojo Five, or made without Dojo Five’s express written approval; or

(b)            any misuse, abuse, or misapplication of the Software by or on behalf of Customer, a User, or a third party.

11.3        Customer shall indemnify, defend, and hold harmless Dojo Five its officers, directors, employees, agents, successors, and permitted assigns (each, an “Dojo Five Indemnitee”) from and against any and all Losses incurred by an Dojo Five Indemnitee in connection with any Action brought by a third party (other than an affiliate of an Dojo Five Indemnitee) based on any allegation of or relating to:

(a)            any technology, products, network or computer equipment, systems or procedures, or services of the Customer or any third party which are used with the Software; and

(b)            Dojo Five’s use of the Customer Data in compliance with the terms of this Agreement.

11.4        The parties shall indemnify each other pursuant to this Section 11 provided that: (a) the indemnitee notifies the indemnifying party promptly in writing of the Action; (b) the indemnifying party has control of the defense and all related settlement negotiations with respect to the Action, provided that, (a) the indemnitee has the right to participate in the defense of any such Action through counsel of its own choosing, and that (b) all settlements made by the indemnifying party include a full release of all claims against and obligations of the indemnitee related to the Action; and (c) the indemnitee cooperates fully to the extent necessary, and executes all documents necessary for the defense of any such Action.

11.5        THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND DOJO FIVE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR OFF-BOARDING SOFTWARE INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12.           Limitations of Liability. Except for liability under the confidentiality, Intellectual Property Rights, and indemnification provisions of this Agreement:

12.1        NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE, HOWEVER THE DAMAGES ARISE, WHETHER BASED ON CONTRACT, TORT, STATUTE, OR OTHER LEGAL RIGHT, EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND

12.2        THE AGGREGATE LIABILITY OF THE PARTIES TO EACH OTHER FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR OTHER LEGAL RIGHT, WILL BE LIMITED TO THE TOTAL FEES PAID OR OWING BY CUSTOMER FOR THE MOST RECENT ONE (1) YEAR OF THE TERM OF THIS AGREEMENT.

13.           Insurance.

13.1        Dojo Five’s Required Coverage.  At all times during the Term, Dojo Five shall procure and maintain, at its sole cost and expense, insurance coverage in the following types and amounts:

(a)            Commercial General Liability with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, including bodily injury and property damage and products and completed operations;

(b)            Cyber Liability Insurance, including first party and third-party coverage, with limits no less than $1,000,000 per occurrence and $1,000,000 in the aggregate for all claims each policy year;

(c)             Worker's Compensation insurance with limits no less than the minimum amount required by applicable law for each accident and occupational illness claim;

(d)            Commercial Automobile Liability with limits no less than $1,000,000, each occurrence combined single limit of liability for bodily injury, death, and property damage, including owned and non-owned and hired automobile coverages, as applicable; and

(e)            Errors and Omissions/Professional Liability with limits no less than U.S. $1,000,000 per occurrence and U.S. $1,000,000 in the aggregate for all claims each policy year.

13.2        Customer’s Required Coverage.  At all times during the Term, Customer shall procure and maintain, at its sole cost and expense, insurance coverage in the following types and amounts:

(a)            Commercial General Liability with limits no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, including bodily injury and property damage and products and completed operations

13.3        Policy Terms. All insurance policies required by this Section 13 shall:

(a)            be issued by insurance companies reasonably acceptable to both parties;

(b)            waive any right of subrogation of the insurers against the party to this Agreement against whom the claim is made;

(c)             provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Dojo Five or Customer, as applicable, shall be excess and non-contributory; and

(d)            name Dojo Five or Customer, as applicable, and their respective successors and permitted assigns, as additional insureds.

13.4        Coverage.  To the extent any insurance coverage required under this Section 13 is purchased on a “claims-made” basis, such insurance shall cover all prior acts of the insured party during the Term and any additional periods during which Dojo Five does or is required to provide the Software, and such insurance shall be continuously maintained until at least four years beyond the expiration or termination of the Term, or Dojo Five shall purchase “tail” coverage, effective upon termination of any such policy or upon termination or expiration of the Term, to provide coverage for at least six (6) years from the occurrence of either such event.

13.5        Certificates of Insurance.  Upon a party’s request, the other party shall provide copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 13. Neither party shall do anything to invalidate their respective insurance coverages. A party shall give the other party 30 days' prior notice of any cancellation, non-renewal, or material change in coverage, scope, or amount of any insurance policy required by or affecting the other party’s rights or remedies under this Agreement.

13.6        Non-Waiver.  This Section 13 is not intended to and shall not be construed in any manner as to waive, restrict, or limit the liability of either party for any obligations under this Agreement, including the indemnification provisions.

14.           Term and Termination.

14.1        Term.  This Agreement begins on the Effective Date and will continue in effect for the subscription term stated in the applicable Customer Order. This Agreement will automatically renew for a one (1) year Term unless either party notifies the other of its election to terminate the Agreement at least 30 days prior to the expiration of the then-current Term.

14.2        Termination.  In addition to any other express termination right set forth in this Agreement:

(a)            either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach remains uncured for 30 days after the non-breaching party provides the breaching party with notice of such breach; or

(b)            either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

14.3        Effect of Expiration or Termination.  Upon expiration or earlier termination of this Agreement, Customer’s rights to access and use the Software shall terminate. The parties shall cease using and delete, destroy, or return all copies of any Confidential Information of the other party and shall certify that it has done so in writing if requested by the other party. No expiration or termination will affect Customer's obligation to pay all Fees that were due before such expiration or termination, or entitle Customer to any refund.

14.4        Access to Customer Data after Termination.  Upon a request by Customer made within 90 days after the termination or expiration of this Agreement, Dojo Five will provide Customer with access to or an archive copy of all Customer Data stored or controlled by Dojo Five. Dojo Five shall have no obligation to maintain or provide Customer Data to Customer more than 90 days after the termination or expiration of this Agreement.

14.5        Survival. This section and Sections 1, 3.3, 3.4, 3.5, 3.6, 5, 7, 8, 9, 10.5, 11 ,12, 14.3, 14.4, and 15 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

15.           General.

15.1        Entire Agreement.  This Agreement and all Customer Orders represent the entire agreement of Dojo Five and Customer concerning its subject matter. This Agreement supersedes all prior and contemporaneous oral or written terms, conditions, representations, warranties, and agreements regarding the subject matter.

15.2        Independent Contractors.  Dojo Five and Customer are independent contractors for all purposes in performing this Agreement. This Agreement is not in itself intended to create an agency, partnership, franchise, or joint venture relationship between the parties. The business relationship of the parties is non-exclusive.

15.3        Publicity.  Dojo Five and Customer shall have the right to publicize this business relationship via press release, online channels, and other marketing materials.

15.4        Notices.  All notices permitted or required under this Agreement shall be deemed given on the date of personal delivery or five (5) days after mailing by first class, certified United States mail, with postage fully prepaid. Personal delivery via a nationally-recognized courier is valid upon delivery provided the courier obtains a signed receipt. Notice by email is valid upon acknowledgement of receipt by the intended recipient or such person’s authorized representative by email or another means providing a written record of the acknowledgment.

15.5        Governing Law and Jurisdiction.  This Agreement is governed by Minnesota law and controlling U.S. federal law without regard to the choice of law provisions of any jurisdiction. The state and federal courts sitting in Ramsey County, Minnesota, have non-exclusive jurisdiction of all legal matters arising under this Agreement and the parties hereby irrevocably submit to the jurisdiction of such courts.

15.6        Disputes.  If at any time a dispute, difference, or disagreement shall arise between the parties concerning their performance obligations under this Agreement, before instituting any litigation Dojo Five and Customer shall submit the matter to a non-binding mediation before a qualified, independent professional who has demonstrated skill and experience in mediating similar matters. Any such mediation shall be conducted in St. Paul, Minnesota, unless the parties expressly agree otherwise.

15.7        Assignment.  Neither Dojo Five nor Customer may assign or otherwise transfer their rights and obligations under this Agreement without the other party’s prior written consent, except that Dojo Five may assign this Agreement as part of the sale of substantially all its assets to another entity, or as part of a merger, business sale, or reorganization which results in a change in management control. Dojo Five may withhold its consent to an assignment by Customer to an actual or potential competitor of Dojo Five in its sole discretion. Any prospective assignee must be able to fulfill all of the assignor’s obligations under this Agreement.

15.8        Binding Effect.  This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective, permitted successors and assigns.

15.9        Waiver.  Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement.

15.10      Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and will be interpreted, to the extent possible, to achieve the purposes as originally expressed in the invalid, illegal or unenforceable provision.

15.11      Force Majeure.  Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any Act of God, or any government or any governmental body, acts of the common enemy, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party.

15.12      Export Regulation.  The Software may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software 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, prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the U.S.

15.13      Equitable Relief.  A breach or threatened breach by either party of this Agreement may cause the other party irreparable harm for which money damages would not be an adequate remedy, and in such case the party claiming irreparable harm may seek equitable relief in a court having jurisdiction of the matter. Equitable remedies such as a restraining order, injunction, or specific performance are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

15.14      Counterparts; Electronic Signatures.  This Agreement may be executed concurrently in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A signature by a party to this Agreement or any of its exhibits and schedules that is recorded or made and delivered solely in electronic form shall have the same effect and create the same binding legal obligation as a signature made and delivered in person.