LICENSE.md

RCADE Software Agreement

Copyright (c) 2021 Retro Center, LLC

This Software License Agreement (the "Agreement") is by and between Retro Center, LLC, a Michigan corporation ("Licensor") and any Person that consents to the terms of this Agreement or otherwise uses the Software ("Licensee"). Licensor and Licensee may be referred to herein collectively as the "Parties" or individually as a "Party."

WHEREAS, Licensor desires to license the Software to Licensee; and

WHEREAS, Licensee desires to obtain a license to use the Software for its purposes, subject to and in strict accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.Definitions.

"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

"Authorized User" means the Licensee and each Person the Licensee allows to use the gaming device purchased from Licensor.

"Documentation" means Licensor's manuals and guides relating to the Software that Licensor provides or makes available to Licensee, if any, which may be updated from time to time in Licensor's sole and absolute discretion, in any form or medium which describe the functionality, components, features, license, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.

"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world. Licensor does not claim any ownership in or to any Intellectual Property Rights or imitations thereof of any 3rd-party.

"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

"Losses" means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

"Maintenance Release" means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.

"New Version" means any new version of the Software that Licensor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Licensor's designation of a new version number), and which Licensor may, but has no obligation to, make available to Licensee at an additional cost under a separate agreement.

"Open Source Components" means any software component that is subject to any open source license agreement, including without limitation, any libraries or software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, KODI, or any other open source license. Open Source Components also include R-Cade, which is copywritten and distributed by under license from the Massachusetts Institute of Technology. Licensee recognizes and understands that Licensee must download certain emulators and cores that are not owned by Licensor or R-Cade. These emulators and cores are licensed and distributed under separate license agreements. Neither Licensor nor R-Cade claim any ownership interest or rights in or to any emulators, cores, or associated art and graphics. Some specific licenses that Licensee should be aware of include Mupen64Plus: GPL-3.0 and Retroarch: GPL.3.0. By downloading emulators and cores, Licensee agrees to abide by and be bound by the terms of each applicable independent license agreement associated with those emulators and cores.

"Permitted Use" means use of the Software by an Authorized User for their own personal purposes. Permitted Use does not include any use that violates any Law. Licensee and all other Authorized Users are prohibited from illegally downloading or pirating any emulator, core, game, code, component, or any other software or item from any other source and using the same in connection with the Software.

"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

"Software" means the executable, object code version of the R-Cade and any Maintenance Releases provided to Licensee pursuant to this Agreement.

"Third-Party Materials" means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open Source Components or other software, emulators, cores, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

2. License.

2.1 License Grant. Subject to and conditioned on Licensee's compliance with all terms and conditions of this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable license to use the Software and Documentation solely for the Permitted Use during the Term.

2.2 Scope of Licensed Access and Use. Licensee may install, use, and run one copy of the Software on a single device for use by Licensee and its Authorized Users and solely for the Permitted Use.

2.3 Open Source Licenses. The Software includes Open Source Components (each, an "Open Source License"). Any use of the Open Source Components by Licensee is governed by, and subject to, the terms and conditions of the Open Source License(s) and any separate agreements that govern the Open Source Licenses(s), which Licensee and its Authorized Users agree to comply with and abide by at all times.

2.4 Security Measures. The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Licensee acknowledges and agrees that: (a) Licensor may use these and other lawful measures to verify Licensee's compliance with the terms of this Agreement and enforce Licensor's rights, including all Intellectual Property Rights, in and to the Software; (b) Licensor may deny any individual access to and/or use of the Software if Licensor, in its sole discretion, believes that person's use of the Software would violate any provision of this Agreement, regardless of whether that person is an Authorized User; and (c) Licensor may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Licensee's device and associated use of the Software that Licensor may gather periodically to improve the performance of the Software or develop Maintenance Releases.

3. License Restrictions. Except as this Agreement expressly permits, Licensee shall not, and shall not permit any other Person to: (a) copy the Software, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Software or Documentation; (f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation; (g) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; (h) use the Software for purposes of: (1) benchmarking or competitive analysis of the Software; (2) developing, using, or providing a competing software product or service; or (3) any other purpose that is to Licensor's detriment or commercial disadvantage; (i) use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or (j) use the Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement or any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License.

4. Delivery. Licensor shall deliver one copy of the Software pre-installed, electronically, or by other means, in Licensor's sole discretion.

5. Maintenance Releases. During the Term, Licensor may provide Licensee with Maintenance Releases (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its licensees. All Maintenance Releases provided by Licensor are deemed Software. Licensee will install or download all Maintenance Releases as soon as practicable after receipt. Licensor may require Licensee to agree to a new standard form license agreement in connection with any maintenance releases, the terms and conditions of which may be materially different than those contained in this agreement. Licensee recognizes, acknowledges, and agrees that if Licensee refuses to accept any maintenance releases or refuses to agree to any new form license agreement that Licensor requires, then Licensee will be prohibited from using the then-current form of software. In such event, Licensee recognizes and agrees that Licensor has no obligation to maintain or support any non-current form of the software and that such software no may no longer function or work. Licensee does not have any right hereunder to receive any New Versions of the Software that Licensor may, in its sole discretion, release from time to time.

6. License Fees. Unless otherwise agreed in writing, the license granted hereby is without fee during the Term.

7. Audits.

7.1 Audit Procedure. Licensor may, in Licensor's sole discretion, inspect and audit Licensee's use of the Software under this Agreement at any time during the Term and for five (5) years following the termination or earlier expiration of this Agreement. Licensee shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Licensor with respect to such audit.

7.2 Cost and Results of Audit. If the audit determines that Licensee's used the Software other than as permitted under this Agreement, Licensee shall pay all costs associated with the Audit.

8. Confidentiality.

8.1 Confidential Information. In connection with this Agreement, Licensor (the "Disclosing Party") may disclose or make available Confidential Information to Licensee (the "Receiving Party"). Subject to Section 8.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's Software, technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as "confidential." Without limiting the foregoing: (a) the Software and Documentation are the Confidential Information of Licensor; and (b) the financial terms and existence of this Agreement are the Confidential Information of Licensor.

8.2 Exclusions. Confidential Information does not include information that Licensee can demonstrate by written or other documentary records: (a) was rightfully known to the Licensee without restriction on use or disclosure prior to such information being disclosed or made available to the Licensee in connection with this Agreement; (b) was or becomes generally known by the public other than by the Licensee's, or any Person associated with Licensee, noncompliance with this Agreement; (c) was or is received by the Licensee on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) Licensee can demonstrate by written or other documentary records was or is independently developed by Licensee without reference to or use of any Confidential Information.

8.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, Licensee shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) not disclose or permit access to Confidential Information; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; (c) promptly notify the Licensor of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (d) ensure its Authorized Users' compliance with, and be responsible and liable for any of its Authorized Users' non-compliance with, the terms of this Agreement.

8.4 Compelled Disclosures. If the Licensee is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Licensee will: (a) promptly, and prior to such disclosure, notify the Licensor in writing of such requirement so that the Licensor can seek a protective order or other remedy or waive its rights under this Section; and (b) provide reasonable assistance to the Licensor, at Licensee's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Licensor waives compliance or, after providing the notice and assistance required under this Section, the Licensee remains required by Law to disclose any Confidential Information, the Licensee will disclose only that portion of the Confidential Information that Licensee is legally required to disclose.

9. Intellectual Property Rights.

9.1 Intellectual Property Ownership. Licensee acknowledges and agrees that: (a) the Software and Documentation are licensed, not sold, to Licensee by Licensor and Licensee does not have under or in connection with this Agreement any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights; (b) With the exception of Open Source Components and Intellectual Property Rights of any 3rd-party, if any, Licensor is the sole and exclusive owner of all right, title, and interest in and to the Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in their own Intellectual Property Rights and Open Source Components and the limited license granted to Licensee under this Agreement. Licensor does not claim any ownership in or to any Intellectual Property Rights or imitations thereof of any 3rd-party; and (c) Licensee hereby unconditionally and irrevocably assigns to Licensor, its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

9.2 Licensee Cooperation and Notice of Infringement. Licensee shall, during the Term: (a) take all reasonable measures to safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (b) take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor's ownership of the Intellectual Property Rights in the Software and Documentation; (c) promptly notify Licensor in writing if Licensee becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Licensor's Intellectual Property Rights or Open Source Components in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and (d) fully cooperate with and assist Licensor in all reasonable ways in the conduct of any Action by Licensor to prevent or abate any actual or threatened infringement, misappropriation or violation of Licensor's rights in, and to attempt to resolve any Actions relating to, the Software or Documentation, including having Licensee testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

9.3 No Implied Rights. Except for the limited rights and license expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or Documentation.

10. Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that: (a) it has the full right, power, and authority to enter into this Agreement; (b) any Person who accepts the terms of this Agreement or otherwise uses the Software is bound by the terms of this Agreement regardless of whether they have actually signed this Agreement; and (c) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

11. DISCLAIMER OF WARRANTIES. ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED "AS IS," "WHERE IS," AND "WITH ALL FAULTS." LICENSOR PROVIDES NO WARRANTIES WITH RESPECT TO THIS AGREEMENT OR THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, LICENSOR 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. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED "AS IS," "WHERE IS," AND "WITH ALL FAULTS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.

12. Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its officers, directors, managers, members, owners, employees, agents, contractors, successors and assigns (each, a "Licensor Indemnitee") from and against any and all Losses incurred by any Licensor Indemnitee resulting from any Action by a third party: (a) that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any: (i) use or combination of the Software by or on behalf of Licensee or any of its Authorized Users with any hardware, software, system, network, service, emulator, core, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement, the Documentation, or otherwise in writing; and (ii) information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation; (b) relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement; (c) relating to negligence, gross negligence, abuse, misapplication, misuse or other culpable act or omission by or on behalf of Licensee or any of its Authored Users with respect to the Software or Documentation or otherwise in connection with this Agreement; or (c) relating to use of the Software or Documentation by or on behalf of Licensee or any of its Authorized Users that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Licensor's instructions.

13. Mitigation. If the Software, or any part of the Software, is, or in Licensor's opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Licensee's use of the Software is enjoined or threatened to be enjoined, Licensor may, at its option: (a) obtain the right for Licensee to continue to use the Software materially as contemplated by this Agreement; (b) modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software under this Agreement; or (c) if, after Licensor's exercise of commercially reasonable efforts, none of the remedies set forth in the above are reasonably available to Licensor, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on notice to Licensee, in which event, Licensee shall cease all use of the Software and Documentation immediately on receipt of Licensee's notice and without any compensation to Licensee. THIS SECTION 13 SETS FORTH LICENSEE'S SOLE REMEDIES AND LICENSOR'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

14. Limitations of Liability.

14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL LICENSOR, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE LIABILITY OF LICENSOR AND ITS LICENSORS, SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT LICENSEE PAID TO LICENSOR IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $100.00 USD, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14.3 Exceptions. The exclusions and limitations in Section 14.1 and 14.2 do not apply to Licensee's indemnification obligations or breach of this Agreement.

15. Term and Termination. The term of this Agreement commences as of the Effective Date and continues in effect unless terminated pursuant to the terms of this Agreement (the "Term"). This Agreement may be terminated at any time: (a) by Licensor, effective on written notice to Licensee; and (b) by Licensee effective on written notice to Licensor, if Licensor materially breaches this Agreement and such breach is not cured within sixty (60) days of Licensor's receipt of written notice from Licensee describing the material breaches in detail.

15.1 Effect of Termination or Expiration. On termination of this Agreement all rights, licenses and authorizations granted to Licensee hereunder will immediately terminate and Licensee will: (i) immediately cease all use of and other activities with respect to the Software and Documentation; (ii) within thirty (30) days deliver to Licensor, or at Licensor's written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Software, the Documentation and the Licensor's Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (iii) certify to Licensor that it has complied with the requirements of this Section

15.2 Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section, Section 1, Section 8, Section 9, Section 11, Section 12, Section 13, Section 14, and Section 15.

16. Miscellaneous.

16.1 Further Assurances. On Licensor's reasonable request, the Licensee shall, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

16.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

16.3 Notices. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows

If to Licensor: PO Box 496 Portland, Michigan 48864 Attention: Retro Center, LLC

If to Licensee: The Address where the device is delivered.

Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required.

16.4 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments to, this Agreement, if any; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.

16.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

16.6 Entire Agreement. This Agreement 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, representations, and warranties, both written and oral, with respect to such subject matter.

16.7 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor's prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.

16.8 Export Regulation. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws 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 Software available outside the US.

16.9 Force Majeure. (a)No Breach or Default. In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Licensor's reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, pandemic, or endemic; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; or (vi) national or regional emergency.

16.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

16.11 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

16.12 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. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties 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.

16.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Michigan 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 Michigan. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Michigan in each case located in the County of Ingham, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.

16.14 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

16.15 Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under this Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, 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.

16.16 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by Licensor against Licensee arising out of or related to this Agreement, Licensor is entitled to recover its reasonable attorneys' fees and court costs from the Licensee.