MOKAFIVE RESELLER AGREEMENT
This MokaFive Reseller Agreement (“Agreement”) is made as of the last date it is signed below (the “Effective Date”) by and between moka5, Inc., a Delaware corporation (“MokaFive”) and the entity identified below as Reseller (“Reseller”).
Summary
MokaFive offers Subscription & Perpetual based software for allowing customers to create, manage, and store virtual computing environments in a format for centralized management and local execution. Reseller is a company that resells the products and services of other companies. This Agreement sets forth the terms and conditions for the marketing and distribution of MokaFive’s products and services by Reseller.
Attached Exhibits
Exhibit A: Terms and ConditionsExhibit B: NDA
This Agreement, including this cover page, the exhibits that follow, and all other attachments hereto, which are incorporated herein by this reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter, including any previously executed license agreements between Licensee and MokaFive or any of its subsidiaries.
Exhibit A
Terms and Conditions
“End User” means an individual or entity who acquires Licensed Product for their own internal use rather than distribution and shall exclude distributors, dealers, resellers, value added resellers, OEMs, third party vendors, systems integrators, commission agents, or other parties who have acquired such products for distribution.
“Executable Code” means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.
“MokaFive License Terms” (or “License Terms”) means MokaFive’s end user license terms for the products and services that are either included with each Licensed Product in electronic form as part of a product installer or posted on a website. Exhibit C includes, when practical, the URL for the publicly accessible MokaFive License Terms for each Licensed Product.
“Intellectual Property Rights” means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights.
“Licensed Product” means the software, services and/or subscriptions (together with any associated documentation) listed in Exhibit B as may be updated by MokaFive from time to time in its reasonable discretion.
“Source Code” means the human-readable version of a software program that can be compiled into Executable Code.
“Territory” means areas of doing business in a country, state or location where sales coverage is done.
Licensing to End Users. Subject to Reseller’s compliance with the terms of this Agreement, MokaFive grants to Reseller a non-exclusive, non-transferable, non-sublicenseable, fee-bearing license during the Term to market and distribute Licensed Product in the Territory to Reseller’s End Users in accordance with and solely subject to the License Terms, and not for resale or redistribution or on any additional terms. In the case of subscription products, all subscriptions for a single End User will start upon the date of the End User’s order therefor and run concurrently, e.g. two one-year licenses cannot be used to create a two year subscription term.
Orders and Delivery. Reseller may solicit orders for the Licensed Products from End Users through quotes, or other documents and/or processes deemed appropriate by Reseller, and take measures to ensure that the End User will be bound by the License Terms at the specified URL. Once an End User accepts the quote, e.g. with a purchase order or other document (in either case, accepting the MokaFive License Terms), Reseller can issue an order to MokaFive requesting delivery of the Licensed Product to the End User. MokaFive will then deliver the Licensed Products (including activating the relevant services and/or subscriptions) in a reasonable time period after receipt of the order, delivery, if required, will be electronic and ex works from a MokaFive server (Incoterms 2000). Prior to the first use, the End User must agree to the License Terms for the Licensed Product. No additional or inconsistent term or condition in any ordering document used by an End User or Reseller that purports to add to or modify the terms of this Agreement will be accepted.
Restrictions. Reseller acknowledges that the Licensed Products and their structure, organization, and Source Code contain trade secrets of MokaFive and its licensors. Accordingly, except as expressly allowed under Section 2.1 (if at all), in order to protect such trade secrets and other interests that MokaFive and its licensors may have in the Licensed Products, Reseller agrees not to (and not to authorize any third party to): (a) modify, adapt, alter, translate, or create derivative works from the Licensed Products; (b) merge the Licensed Products with other products; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the Licensed Products to any third party; (d) disassemble, decompile, reverse engineer, or otherwise attempt to derive the Source Code for the Licensed Products. Notwithstanding the foregoing, decompiling the Licensed Products s permitted to the extent the laws of Reseller’s jurisdiction give Reseller the right to do so to obtain information necessary to render the Licensed Products interoperable with other software; provided, however, that Reseller must first request such information from MokaFive, and MokaFive may, in its discretion, either provide such information to Reseller or impose reasonable conditions, including a reasonable fee, on such use of the Source Code for the Licensed Products to ensure that MokaFive’s and its licensor’s proprietary rights in the Source Code for the Licensed Products are protected. Reseller’s rights in the Licensed Products are limited to those expressly granted in Section 2.1.
Government Rights. Reseller may distribute the Licensed Products and its documentation to the U.S. Government or to End Users under U. S. Government contracts if and only if (a) Reseller informs the U.S. Government or such End Users in writing, prior to any distribution thereof, that the Licensed Products and documentation must be used in accordance with FAR 12.212 and DFARS 227.7202: use, duplication or disclosure is subject to restrictions under paragraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 252.227-7013, and further restricted by this Agreement and the License Terms. Any use of the Software by the U.S. Government is also subject to the terms and conditions of the License Terms.
Trademark License. Subject to Reseller’s compliance with the terms and conditions of this Agreement, MokaFive hereby grants to Reseller a non-exclusive, non-transferable, non-sublicenseable, revocable license, during the Term, to use MokaFive trademarks (as designated by MokaFive from time to time, “Marks”) solely in connection with the marketing and distribution of the Licensed Products pursuant to this Agreement. Any use of a Mark by Reseller must correctly attribute ownership of such mark to MokaFive and must be in accordance with applicable law and MokaFive’s then-current trademark usage guidelines. Reseller acknowledges and agrees that MokaFive owns the Marks and that any and all goodwill and other proprietary rights that are created by or that result from Reseller’s use of a Mark hereunder inure solely to the benefit of MokaFive. Reseller agrees to state in appropriate places on all materials using the Marks that the Marks are trademarks of MokaFive and to include the symbol ™ or ® as appropriate. Reseller will at no time contest or aid in contesting the validity or ownership of any Mark or take any action in derogation of MokaFive’s rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any Mark. At MokaFive’s request, Reseller will modify or discontinue any use of the Marks if MokaFive determines that such use does not comply with MokaFive’s then-current trademark usage policies and guidelines.
Obligations. During the Term (and with respect to already issued licenses and subscriptions beyond the Term as outlined in Section 6.3) of the Agreement, Reseller’s obligations will include:
- Promotion and distribution of the Licensed Products in the Territory, including informing potential End Users about the Licensed Products, and providing the first line of support to its End Users in the use of the Licensed Products subject to the following. The Licensed Products are sold under two pricing models, under one model Reseller is responsible for providing first-line support to End Users for the Licensed Products, including without limitation (i) installation, training, configuration, and consultation on the use of the Licensed Products; (ii) telephone support to answer questions regarding the use of Licensed Products; (iii) assisting in the diagnosis, identification and correction of problems in the use of Licensed Products; (iv) providing End Users with any Updates to the Licensed Products that MokaFive provides to Reseller hereunder; and (v) and generally providing a level of maintenance consistent with or greater than MokaFive offers in the License Terms for each Licensed Product; only after using commercially reasonable efforts, Reseller is unable to resolve an End User problem with the Licensed Products, Reseller may refer the issue to MokaFive which will resolve the issue in accordance with its standard practices and the License Terms. Under the second model, Reseller licenses the Licensed Products using the pricing where MokaFive provides first level support; unless this model is chosen MokaFive shall have no responsibility to provide first-line support.
- Engaging in business practices that at all times reflect favorably on MokaFive and the Licensed Products.
- As requested by MokaFive from time-to-time, listing MokaFive on Reseller’s website as a licensor and at all times, complying with MokaFive’s standard usage guidelines for all MokaFive Marks. Note: Policy document on updates to guidelines are posted on the partner portal.
- Demonstrating adequate experience in sales or marketing, having experience in the applicable areas, and having the applicable knowledge in order to demonstrate the Licensed Products in their respective environments. Note: Policy document on updates to requirements are posted on the partner portal.
- Fully complying with all relevant laws and regulations, including export laws to ensure that the Licensed Products and technical data related thereto is not: (i) exported or re-exported directly or indirectly in violation of export laws; or (ii) used for any purposes prohibited by the export laws.
- Becoming certified by MokaFive prior to distributing the Licensed Products, and remaining certified relative to the Licensed Products throughout the term of this Agreement. At a minimum, Reseller will send at least one (1) engineer to attend and complete MokaFive’s three (3)-day certification training course, which is offered periodically (typically, every six (6) weeks) at MokaFive’s corporate headquarters. Remote certification courses may be offered from time to time in MokaFive’s sole discretion. As of the Effective Date, the certification course fee is $2,500 per engineer when the course is provided at MokaFive’s corporate headquarters; MokaFive reserves the right to adjust the certification course fee from time to time. Certification requires successfully passing MokaFive’s certification exam. Reseller will bear Reseller’s travel and related expenses in connection with certification. Without limiting the generality of the foregoing, if at least one (1) Reseller engineer does not complete MokaFive’s training course within ninety (90) days following the Effective Date, MokaFive reserves the right to terminate this Agreement for cause immediately upon written notice to Reseller.
Fees. Reseller agrees to pay MokaFive the fees specified in MokaFive’s standard pricing schedule set forth in Partner Policy contains updates to pricing schedule (as may be amended by MokaFive from time to time upon written notice to Resellers on updates to Partner Policy located on Partner Portal) upon MokaFive’s acceptance of an order of the Licensed Products for the applicable End Users. Notwithstanding anything to the contrary in this Agreement, Reseller is, and will remain, entirely free to determine End User prices and fees for the Licensed Products in its own discretion, subject to its payment obligations to MokaFive according to the price list.
Reports. Within thirty (30) days after the close of each calendar month, Reseller will deliver to MokaFive a report indicating the customer name, number of Licensed Products ordered for End Users and a calculation of payments due to MokaFive for the corresponding month.
Payment Terms. All payments due to MokaFive pursuant to Section 2.2 shall be paid within thirty (30) days after MokaFive’s delivery of an invoice to Reseller. Upon Reseller’s failure to pay, MokaFive may refuse to activate, or may terminate if already activated, an End User subscription or product.
Records; Audit Rights. Reseller shall maintain complete and accurate books and records with respect to copies and distribution of Licensed Products, or otherwise pertaining to the payment of fees hereunder, until at least three (3) years after Reseller’s report and payment to MokaFive. MokaFive or its agent may at any time, on at least ten (10) business days’ prior notice to Reseller, audit the books and records of Reseller pertaining to the payment of amounts to MokaFive hereunder. Any such audit must be performed at MokaFive’s expense during normal business hours. If an audit reveals an underpayment of five percent (5%) or more of the amount payable to MokaFive for the period audited, then Reseller shall reimburse MokaFive for the cost of such audit. Additionally, Reseller shall immediately true-up all payments based on the results of the audit, plus interest pursuant to Section 3.7 (“Interest”).
Taxes. All amounts payable by Reseller under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Reseller will be responsible for, and will promptly pay, all taxes and duties of any kind (including, but not limited to, sales, use and withholding taxes) associated with this Agreement or Reseller’s receipt, use, and distribution of the Licensed Products, except for taxes based on MokaFive’s net income. If Reseller pays any withholding taxes based on the payments made by Reseller to MokaFive hereunder, Reseller will furnish MokaFive with written documentation of all such tax payments, including receipts and other customary documentation.
Interest. Late payments will accrue interest (without the requirement of a notice) at the lower of one and one-half percent (1.5%) per month or the highest rate permissible by law until the unpaid amounts are paid in full. Reseller will promptly reimburse MokaFive for all reasonable costs and expenses (including reasonable attorneys’ fees and collection costs) incurred by MokaFive in connection with collecting any overdue amounts.
Indemnity. Reseller is responsible for, and shall defend, indemnify and hold harmless MokaFive and its directors and officers from, all claims, suits, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by third parties (including any End User) arising from or relating to
- any breach by Reseller of its obligations, duties, or responsibilities under this Agreement;
- any actions or omissions on the part of Reseller in marketing or distributing the Licensed Products;
- MokaFive’s termination of, or refusal to activate, an End User for non-payment;
- any representations and/or warranties to End User outside MokaFive’s standard License Terms;
- failure by Reseller to pay for any accepted order;
- failure to obtain agreement of the End User to the License Terms or licensing under any terms and conditions other than the License Terms or;
- any breach by an End User who receives the Licensed Products from Reseller, of the applicable License Terms.
Note: Policy document on updates to policy for benefits and offers are posted on the partner portal.
Training. MokaFive will provide training to Reseller as described in Exhibit B.
Marketing. MokaFive may, at its discretion, maintain an active list of all authorized resellers, including Reseller, on its website.
Support. MokaFive will provide second-level support to Reseller upon Reseller’s request and investigations about problems. MokaFive support to Reseller will be consistent with and no less than MokaFive’s support levels as described at (http://www.mokafive.com/support/support-center.php) as may be updated from time to time.
Intellectual Property. Each party will own and retain any and all rights to all of its intellectual property, or any enhancements or modifications thereto or derivative works thereof existing prior to the date of this Agreement or originally developed outside the scope of this Agreement.
MokaFive Rights. MokaFive will retain all right, title, and interest in the Licensed Products and all Intellectual Property Rights therein. Reseller shall not remove, modify, or obscure any proprietary rights notices on the Licensed Products or modify the Licensed Products (except for configurable elements enabled within the Licensed Product). Reseller will reproduce and display the proprietary rights notices appearing on the Licensed Products delivered to Reseller on each copy of the Licensed Products made by Reseller. MokaFive hereby reserves all rights not expressly granted to Reseller in this Agreement.
Term. This Agreement will commence on the Effective Date and continue for an initial term of twelve (12) months, unless earlier terminated as provided herein (“Term”). Thereafter, solely upon the parties’ mutual written consent, this Agreement will renew for additional twelve (12) month Terms. Either Party may terminate this Agreement without cause or reason upon sixty (60) days prior written notice. Reseller acknowledges and agrees that (i) MokaFive has no obligation to agree to or approve any renewal or extension of this Agreement; (ii) Reseller has no basis for expecting, and has received no assurance, that its business relationship with MokaFive will continue beyond the stated term of this Agreement or that any investment by Reseller in the promotion of the Licensed Products will be recovered; and (iii) Reseller will not be entitled to any compensation or damages of any nature as a result of the expiration of this Agreement or the termination of this Agreement pursuant to Section 6.2.
Default. If either party defaults in the performance of any of its material obligations and if any such default, if subject to being cured, is not corrected within thirty (30) days after notice in writing, by the other party, then the other party, at its option, may, in addition to any other remedies it may have, thereupon terminate this Agreement by giving written notice of termination to such party. Notwithstanding the foregoing, Reseller acknowledges that breaches of Section 2.3 (“Restrictions”) shall be non-curable.
Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to MokaFive under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and Reseller must promptly discontinue all further use of the Marks and all further use and distribution of the Licensed Products; and Reseller must destroy or return to MokaFive all copies of the Licensed Products and certify in writing signed by an officer of Reseller that Reseller has fully complied with this requirement. End User agreements granted by Reseller in accordance with this Agreement will survive the expiration or termination of this Agreement in accordance with their terms, and MokaFive will assume the rights and obligations of Reseller under any then-current and in force End User agreement.
Survival. The parties’ rights and obligations of Section 1(“Definitions”), 2.3 (Restrictions); 3.2 (“Fees”), 3.3 (“Reports”) (for the period immediately following expiration or termination of this Agreement); 3.5 (“Records; Audit Rights”); 3.6 (“Taxes”), 3.7 (“Interest”); 3.8 (“Indemnity”), 5 (“Intellectual Property”); 6.3 (“Effect of Termination”), 6.4 (“Survival”), 7 (“MokaFive Warranties”), 8 (“Limitation of Liability”), 9 (“Confidentiality”); and 10 (“General”) will survive any termination or expiration of this Agreement.
Risk Allocation. The provisions of this Sections 7 (“MokaFive Warranties”) and 8 (“Limitation of Liability”) allocate risks under this Agreement between MokaFive and Reseller. MokaFive’s pricing to Reseller reflects this allocation of risks and limitation of liability.
MokaFive Warranty Limitations. TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE LICENSED PRODUCT, AND ANY MAINTENANCE, TRAINING, EVALUATION SOFTWARE AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND MOKAFIVE AND ITS THIRD-PARTY SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, IN RESPECT OF ANY OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE DISCLAIMERS AND EXCLUSIONS OF THIS ARTICLE 7 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
MokaFive and Related Third Parties Limitations of Liability. The entire cumulative liability of MokaFive and its third-party suppliers (collectively “Related Third Parties”) for damages or otherwise arising out of or related to this Agreement, subscriptions, or the Licensed Product or services hereunder from any cause whatsoever, and regardless of the form of action or the cause of action, whether in contract or in tort (including negligence), and whether in the nature of a fundamental breach or a breach of a fundamental term, hereunder, shall not exceed the amount of the license fees actually paid to MokaFive within the twelve (12) months preceding the earliest event, occurrence or omission upon which liability is alleged. Multiple events will not increase this limitation.
Other Damages. IN NO EVENT SHALL MOKAFIVE OR ITS RELATED THIRD PARTIES BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES OR LOSS TO EQUIPMENT, PRODUCTS OR DATA, LOSS OF USE, LOST PROFITS OR REVENUE, LOSS OF GOODWILL, INCREASED EXPENSES OF OPERATION, COST OF CAPITAL, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR THE CLAIMS OF THIRD PARTIES, HOWSOEVER CAUSED.
Third-Party Limitations. The limitations of liabilities of MokaFive and its Related Third Parties are not cumulative. Such Related Third Parties are intended beneficiaries of this Section 8.
Definition. “Confidential Information” means (a) the Licensed Products in whatever form provided, as well as any information concerning MokaFive’s current and proposed new products, and (b) the terms and conditions of this Agreement and the financial terms around it.
Non-Disclosure. Confidential Information, in whatever form, may become available or disclosed to a party hereto for the purpose of enabling such party to carry out this Agreement (the “Receiving Party”). The Receiving Party shall keep all such Confidential Information confidential, shall use it only as expressly authorized under this Agreement, and shall not copy it except as permitted herein or disclose it to anyone other than its employees with a need to know, without the prior written consent of the other party (the “Disclosing Party”). The Receiving Party shall employ the same degree of care it employs with respect to its own proprietary information of like importance to prevent disclosure of such Confidential Information to any other person, firm or corporation, but in no event less than due care. Unauthorized use or disclosure of Confidential Information may cause irreparable harm to the party whose information is so disclosed, and each party agrees that the suffering party shall have the right to seek and obtain injunctive relief to enforce the terms of this Agreement.
Exceptions. The confidentiality and non-disclosure obligations of the parties set out in this Article 9 shall not apply to any information that: (a) becomes lawfully available to the general public from a source other than by a breach of this Agreement; (b) is lawfully obtained by the Receiving Party from a third party or parties unconnected with the Disclosing Party, without breach of any confidentiality obligations; (c) is disclosed by Receiving Party with the Disclosing Party’s written approval, but only to the extent of such approval; or (d) is compelled or required to be disclosed by operation of law.
Return of Confidential Information. The Receiving Party will either (at the Disclosing Party’s option) return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 9.4.
Agency. Neither this Agreement nor the performance of its provisions shall be construed to constitute either party as an agent, employee, partner, joint venture, or legal representative of another.
Assertion of Patents. In the event that Reseller or any of Reseller’s affiliates Asserts any patent against MokaFive or any of its affiliates or, with respect to any products or services of MokaFive or its affiliates, against any customer (direct or indirect), distributor (direct or indirect), agent (direct or indirect), or contractor (direct or indirect) of MokaFive or any of its affiliates, then Reseller shall promptly notify MokaFive in writing and MokaFive shall have the right to immediately terminate this Agreement and the Licenses granted to Licensee under Section 2 upon written notice by MokaFive to Licensee. For purposes of this Section, “Assert” means to: (a) sue or prompt, cooperate with or impose an obligation on a third party to sue, the respective entity for infringement; or (b) maintain a financial interest in a suit against the respective entity for infringement.
Assignment. No party may assign any of its rights or delegate any of its obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party; provided, however, that MokaFive may assign this Agreement without such consent: (a) in connection with a merger, corporate reorganization, or sale of all or substantially all of its relevant assets; or (b) to an entity which controls, is controlled by or is under common control with MokaFive. Any attempted assignment in violation of this Section 10.3 shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their successors and permitted assigns.
Entire Agreement, Severability, Amendment and Waiver. This Agreement constitutes the entire agreement between MokaFive and Reseller concerning the subject matter hereof, and may be modified, amended, altered or supplemented only by a mutually signed writing. Notwithstanding the forgoing, MokaFive may modify or replace Exhibit B from time to time in its reasonable discretion with updated, new or different products and pricing each subject to their own License Terms, the License Terms for any product may be updated or modified by MokaFive at any time in its sole discretion. In the event that any provision of this Agreement is held to be unenforceable, , such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
Force Majeure. Neither party will be liable to the other party for any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (except failure to pay monies due) if such delay or failure is caused, in whole or in part, by circumstances beyond the control and without negligence of the party. Such circumstances include, without limitation, acts of God, strikes, lockouts, riots, acts of war, acts of deadly violence, earthquakes, floods, fire and explosion.
Governing Law and Dispute Resolution. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles that would require the application of the laws of another jurisdiction. Any dispute or claim arising out of, in relation to, or in connection with this Agreement, and any subsequent amendments to this Agreement, including without limitation the interpretation, making, performance, breach or termination thereof, must be adjudicated in a federal court in the Northern District of California or in state court in San Mateo County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
Language. This Agreement is in the English language only, which language shall be controlling in all respects. All communications between the parties made or given pursuant to this Agreement shall be in the English language, and any documents and proceedings before any court, arbitration panel or other means of dispute resolution shall be in English, or accompanied by certified translations in English.
Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth beneath such party’s signature above, and will be effective upon receipt or five (5) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
Construction. The headings of sections of this Agreement are for convenience only and are not to be used in interpreting this Agreement. As used in this Agreement, the word, “including” means “including but not limited to”.