M.FOLIO MASTER SUBSCRIPTION AGREEMENT - MacGregor Partners

M.FOLIO MASTER SUBSCRIPTION AGREEMENT 

Last Updated April 17th, 2020

By execution of an Order Form with MacGregor Partners, LLC, a North Carolina limited liability company (“MacGregor”), which specifically incorporates the terms and conditions of this M.Folio Master Subscription Agreement (the “Agreement”), you (hereinafter referred to as “Subscriber”) have agreed to be bound by, and comply with, the terms and conditions of this Agreement.  MacGregor and Subscriber may be referred to in this Agreement individually as a “Party” and together as the “Parties.”  This Agreement is comprised of the Recitals, General Terms and Conditions and any and all Exhibits that the Parties may agree upon that make reference to this Agreement.  When used herein the term “Agreement” is meant to include any and all of the foregoing.  If a conflict arises between the General Terms and Conditions set forth below and any Order Form, attachment, exhibit, or schedule hereto, except with regard to an express amendment to these General Terms and Conditions, the General Terms and Conditions shall control. 

RECITALS 

A. MacGregor has developed a subscription-based, online platform to electronically sign and store documents commonly known as M.Folio, which may be updated by MacGregor from time to time. 

B. Subscriber wishes to access and use M.Folio, as more fully described in one or more written Order Forms (as defined in Section 2.1). 

C. In connection with this Agreement and any applicable Order Forms, MacGregor will provide access to M.Folio, and MacGregor may also provide certain materials and services related to M.Folio (collectively, the “M.Folio Services”). 

D. Subscriber may request certain professional services (the “Professional Services”) from MacGregor, including, but not limited to, Support Services (as defined in Section 5), customization, implementation, and training services, all as more particularly described herein and in such written Statements of Work (as defined in Section 2.4) as the Parties may mutually agree upon. The M.Folio Services and Professional Services may be referred to herein, collectively, as the “Services.” The Statements of Work and Order Forms may be referred to herein, collectively, as the “Orders.” 

GENERAL TERMS AND CONDITIONS 

In consideration of the foregoing Recitals (which are incorporated herein) and the mutual covenants and agreements contained herein, the Parties hereto agree as follows: 

  1. Term. 

This Agreement shall commence as of the effective date of the first Order executed by the Parties and shall remain in effect until expiration of all Orders, unless earlier terminated as provided herein (the “Term”).  The term for the M.Folio Services identified in each Order Form shall commence on the Subscription Start Date and shall continue until the Subscription End Date contained in the Order Form, unless earlier terminated as provided herein.  As used herein, the Subscription Start Date and the Subscription End Date are defined in each applicable Order Form.  Except as otherwise specified in the applicable Order Form, each subscription plan automatically renews unless either Party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the relevant subscription term. 

  1. Services. 

2.1 M.Folio Services.  

During the Term, MacGregor shall provide the Subscriber’s Authorized Users (as defined below) with the M.Folio Services identified in one or more Order Forms (“Order Forms”). Order Forms that make reference to this Agreement, whether attached at the time of execution hereof, or subsequent thereto, shall become valid and enforceable when executed by the Parties.  “Authorized Users” shall mean an individual natural person who:  (i) agrees to be bound by the terms of this Agreement; and (ii) is specifically authorized and registered by Subscriber to access the M.Folio Services.  An Authorized User must be identified by a unique email address and username with an accompanying password.  Two or more persons may not use M.Folio as the same Authorized User.  Authorized Users must only use the M.Folio Services in and for the Subscriber’s own internal purposes and business operations to electronically sign and store documents (the “Approved Purpose”).  Subscriber acknowledges and agrees that Subscriber shall be responsible and liable for all acts and omissions of Authorized Users, including any act or omission by an Authorized User, which, if undertaken by Subscriber, would constitute a breach of this Agreement. 

2.2 Physical Control of M.Folio. 

MacGregor shall host and retain physical control over M.Folio Services and make M.Folio Services available only through the Internet for access, use, and operation by Subscriber through a web-browser.  MacGregor shall have no obligation to deliver or otherwise make available to Subscriber any copies of computer programs or code, whether in object code or source code form. 

2.3 Locally Installed Software.  

To the extent MacGregor delivers any software to Subscriber in connection with this Agreement for installation on Subscriber servers, Subscriber will have a non-exclusive license to use the software solely in connection with the Services as contemplated hereunder. Subscriber shall not disassemble, decompile, or reverse engineer the software or remove any proprietary notices thereon. The software will be deemed part of and included in the definition of the “M.Folio Services.” 

2.4 Statements of Work.  

Additional Professional Services may be agreed upon by the Parties and described in Statement(s) of Work that make reference to this Agreement (“Statement of Work”). MacGregor shall perform those Professional Services, have the obligations to Subscriber, produce and deliver the “Deliverables,” and achieve the “Milestones” identified in one or more Order Forms or Statement(s) of Work. The terms “Deliverables” and “Milestones” have the meanings set forth in such Order Forms or Statements of Work. Statements of Work that make reference to this Agreement, whether attached at the time of execution hereof, or subsequent thereto, shall become valid and enforceable when executed by the Parties.  Each Statement of Work shall set forth (a) the specific Professional Services to be performed by MacGregor, (b) the payment details for such services, and (c) any other applicable details. 

2.5 Service Levels.  

In providing the Services, MacGregor shall achieve the service levels and performance standards (collectively, the “Service Levels”) set forth in Exhibit A (Service Levels and Performance Standards) and the relevant Order Forms. 

2.6 Change Orders.  

In the event Subscriber desires to make changes to the M.Folio Services or the Professional Services being rendered under any Order Form or Statement of Work, Subscriber will submit a written change order to MacGregor describing such changes in appropriate detail (a “Change Order”). If a Change Order does not require MacGregor to incur any additional costs or expenses, then it will make such modification within fifteen (15) business days of its receipt of Subscriber’s Change Order. If a Change Order does require that MacGregor incur additional costs or expenses, then MacGregor in good faith will provide Subscriber with a written, high level, non-binding assessment of such costs and expenses and the time required to perform the modifications required by the Change Order, within fifteen (15) business days of its receipt of Subscriber’s Change Order. Subscriber will notify MacGregor in writing within fifteen (15) days after receipt of the Change Order response from MacGregor as to whether Subscriber wishes MacGregor to implement such Change Order based on such response. Subscriber will compensate MacGregor for implementation of a Change Order in accordance with the terms and conditions of the relevant Change Order and MacGregor’s statement, as provided prior to MacGregor’s implementation of the Change Order, if any. MacGregor’s implementation of a Change Order shall not delay the performance of Services and/or the delivery of any Deliverables not reasonably affected by a Change Order. 

2.7 Copyright Protection; Restrictions on Use. 

Subscriber agrees that the M.Folio Services, including without limitation the editorial coding and the metadata contained therein, are the property of MacGregor.  The works and databases included in the content of the M.Folio Services are protected by applicable copyright laws.  Subscriber agrees that only Authorized Users shall be permitted access to the M.Folio Services.  Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the M.Folio Services, including, without limitation, all copyright and proprietary right notices.  Subscriber may not, and may not permit others to: 

A. Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, M.Folio or the M.Folio Services; 

B. Modify, translate, adapt, alter, or create derivative works from M.Folio or the M.Folio Services; 

C. Obfuscate, remove, or alter any of the logos, trademarks, links, patent or copyright notices, confidentiality or proprietary legends, or other notices or markings from M.Folio or the M.Folio Services; 

D. Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit M.Folio or the M.Folio Services; 

E. Distribute, sublicense, rent, lease, loan, transfer, or grant access to or use of M.Folio or the M.Folio Services to any third party; 

F. Access or use M.Folio or the M.Folio Services for the purpose of developing or operating products or services intended to be offered to third parties in competition with M.Folio or the M.Folio Services; 

G. Use M.Folio or the M.Folio Services in a way that violates or infringes upon the rights of a third party, including those pertaining to contract, intellectual property, privacy, or publicity; 

H. Use M.Folio or the M.Folio Services in a way that effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene; 

I. Use or allow access to M.Folio or the M.Folio Services in a manner that circumvents contractual usage restrictions or that exceeds Subscriber’s authorized use, or the usage metrics set forth in this Agreement or in any of the Subscriber’s Order Forms; or 

J. Use M.Folio or the M.Folio Services in a way that interferes with or disrupts the integrity, operation, or performance of M.Folio or the M.Folio Services or interferes with the use or enjoyment of it by others by using it to create, use, send, store, or run viruses or other harmful computer codes, files, scripts, agents, or other programs or by circumventing or disclosing the user authentications or security of M.Folio or the M.Folio Services or any host, network, or account related thereto, or use any aspect of M.Folio or the M.Folio Services other than those specifically identified in the subscription. 

  1. Acceptance. 

MacGregor will make the M.Folio Services available to Subscriber as indicated in the Order Form.  The M.Folio Services will be deemed accepted upon the Subscription Start Date.  Any updates, bug fixes, or upgrades (“Corrections”) to the M.Folio Services will be deemed accepted by Subscriber on the day such Corrections are delivered.  

  1. Documentation. 

At no additional charge to Subscriber, MacGregor shall provide Subscriber with all Documentation relating to the Services. “Documentation” shall mean all of MacGregor’s training course materials, system specifications, and technical manuals, and all other user instructions regarding the capabilities, operation, and use of the Services, including, but not limited to, online help screens contained in the Services. If the Documentation for the Services is revised or supplemented at any time, MacGregor shall promptly deliver a copy of such revised or supplemental Documentation to Subscriber, at no additional cost to Subscriber. To the maximum extent available, MacGregor shall deliver the Documentation in electronic form to Subscriber.  

  1. Support Services. 

MacGregor shall provide the support services described in this Section and in any applicable Orders (collectively, the “Support Services”). There shall be no additional charge to Subscriber for the Support Services listed in Section 5.1 below. 

5.1 Support Responsibilities.  

For no additional charge to Subscriber, MacGregor shall: 

A. Correct any failure of the M.Folio Services, including without limitation, defect repair, programming corrections, and remedial programming, and provide such services and repairs required to maintain the M.Folio Services, so that they operate properly. 

B. Provide support from 8:00 A.M. to 5:00 P.M., Monday through Friday. 

C. Provide online access to technical support bulletins and other user support information and forums; 

D. Achieve the required Service Levels, and provide the remedies set forth in Exhibit A (Service Levels and Performance Standards). 

5.2 Additional Paid Support Services. 

Subscriber may request certain additional support services to be provided by MacGregor, which Subscriber will be required to pay for at MacGregor’s retail hourly rate, which may include applicable travel expenses, for the services specified.  Additional support services shall be agreed upon by the Parties and described in an Order Form or Statement of Work that makes reference to this Agreement. 

  1. Changes and Upgrades

MacGregor may from time to time make material enhancements and changes to the M.Folio Services. In the event of such material enhancements or changes, (i) the new version of the M.Folio Services will include at least the functionality, level, or quality of M.Folio Services that Subscriber previously received and shall continue to comply with all of the requirements of this Agreement, and (ii) Subscriber shall be provided notice of such changes. During the Term, Subscriber shall receive access to all new versions, releases, updates, and enhancements of the M.Folio Services at no additional charge. 

The prices, features, and options of the M.Folio Services depend on the subscription plan Subscriber chooses, as well as any additional services Subscriber selects.  MacGregor does not warrant that a particular subscription plan will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular subscription plan without notice. 

  1. Training. 

MacGregor shall provide the training set forth in the relevant Orders.   

  1. Price and Payments. 

8.1 Fees for Services.  

The fees for the M.Folio Services are set forth in the relevant Order Forms and fees for Professional Services in the relevant Order Forms or Statements of Work (collectively, the “Fees”). Except as provided in an Order Form or a Statement of Work or in the event of a written amendment signed by both Parties, (i) there are no other fees or charges to be paid by Subscriber for the Services and/or Deliverables to be provided in connection with this Agreement; and (ii) there are no other Services and/or Deliverables to be provided to Subscriber in connection with this Agreement.  All payments made by Subscriber pursuant to this Agreement are non-refundable except as expressly provided in this Agreement. 

MacGregor reserves the right to increase the price per document or hourly rate for any Services subscribed for upon each renewal by no more than ten percent (10%) above the applicable pricing in the prior subscription term.  Notwithstanding the foregoing, any renewal in which document volume has increased or decreased from the prior term will result in re-pricing at renewal to reflect the revised usage. 

Additionally, if Subscriber’s reported usage exceeds the number of documents that Subscriber was entitled to store in any given subscription term, Subscriber shall be subject to an overage charge.  The overage charge shall be calculated by multiplying the number of excess documents by the unit price paid by Subscriber for the subscription term.  The overage charge shall be added to the Fees for the next subscription term, upon renewal, or shall be invoiced to Subscriber upon termination of the subscription.   

8.2 Recurring Charges. 

BY SIGNING AN ORDER FORM TO RECEIVE A M.FOLIO SERVICES SUBSCRIPTION, THE SUBSCRIBER AUTHORIZES MACGREGOR OR ITS AGENT TO CHARGE SUBSCRIBER’S PAYMENT METHOD ON THE RECURRING BASIS SPECIFIED IN THE APPLICABLE ORDER FORM (THE “AUTHORIZATION”).  SUBSCRIBER MUST PROVIDE ACCURATE AND COMPLETE INFORMATION FOR A VALID PAYMENT THAT MACGREGOR IS AUTHORIZED TO USE.  SUBSCRIBER MUST PROMPTLY NOTIFY MACGREGOR OF ANY CHANGE IN SUBSCRIBER’S BILLING INFORMATION AND MUST UPDATE SUBSCRIBER’S ACCOUNT WITH ANY CHANGE RELATED TO SUBSCRIBER’S PAYMENT METHOD.  MACGREGOR OR ITS AGENT WILL CHARGE: (A) THE APPLICABLE RECURRING FEE ON THE BASIS SPECIFIED IN THE ORDER FORM (E.G. MONTHLY, QUARTERLY, OR YEARLY); (B) ANY AND ALL APPLICABLE TAXES; AND (C) ANY OTHER CHARGES INCURRED IN CONNECTION WITH THE SUBSCRIBER’S USE OF M.FOLIO.  THIS AUTHORIZATION CONTINUES DURING THE ORDER FORM TERM, INCLUDING ANY RENEWAL TERM, AS SPECIFIED IN THE ORDER FORM. 

8.3 Non-Recurring Charges. 

For any non-recurring charges for any of the M.Folio Services or any fees owed pursuant to this Agreement, Subscriber shall pay MacGregor within thirty (30) days of the date of the invoice for such amounts, without deduction, setoff, defense, or counterclaim for any reason. 

8.4 Late Payments. 

If MacGregor does not receive payment from Subscriber in accordance with Sections 8.2 and 8.3 of this Agreement, Subscriber agrees to pay all amounts due upon demand.  MacGregor may withhold or block Subscriber’s access to M.Folio when any amount required to be paid by Subscriber remains unpaid for a period of thirty (30) days beyond the date when such amount is due.  Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. 

8.5 Taxes.  

Subscriber shall be responsible for the payment of all sales, use, excise, value-added or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of MacGregor that is in accordance with the direction or request of Subscriber) that are based on or with respect to any Services provided by MacGregor to Subscriber, or the amounts payable to MacGregor therefore.  Subscriber shall pay all applicable taxes to MacGregor at the time the recurring subscription payment is made, or MacGregor will invoice such taxes with any other non-recurring amounts due. MacGregor shall remit taxes to the appropriate taxing authorities.  

  1. Independent Contractor. 

At all times, the parties are acting as independent contractors under this Agreement and not as agents, employees, or partners of the other. This Agreement is not intended to create a joint venture, partnership, or franchise relationship between the parties. 

  1. Representations and Warranties.

10.1 MacGregor’s Warranties.  

MacGregor represents and warrants as follows: 

(a) Authority.  MacGregor has the full power, capacity and authority to enter into and perform this Agreement and to make the grant of rights contained herein, including without limitation, the right to license any ancillary or third party programs licensed to Subscriber under this Agreement, and MacGregor’s performance of this Agreement does not violate or conflict with any agreement to which MacGregor is a party; MacGregor further represents that there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement; 

(b) Conformance to Documentation and Specifications.  All M.Folio Services shall substantially conform to the Documentation and specifications set forth in the applicable Order Forms during the term of such Order Form.  Subscriber’s sole and exclusive remedy for any breach by MacGregor of the foregoing is to require MacGregor to use commercially reasonable efforts to repair the M.Folio Services and/or the Subscriber may terminate the applicable Order Form and receive a full refund from MacGregor within thirty (30) days of Subscriber’s demand for same of the fees paid by Subscriber to MacGregor for the current term of the applicable Order Form; 

(c) Non-Infringement.  The M.Folio Services and any Deliverables (excluding any Subscriber Property) shall not infringe upon or violate the intellectual property rights of any third party; and 

(d) Compliance with Laws and Regulations.  MacGregor shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement. 

10.2 Disclaimer of Other Warranties.  

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, MACGREGOR MAKES NO REPRESENTATIONS AND GIVES NO WARRANTIES, GUARANTEES, OR ASSURANCES OF ANY KIND, EITHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), INCLUDING ANY WARRANTY OF MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE. MACGREGOR DOES NOT WARRANT THAT ANY HOSTING SERVICES OR CONSULTING SERVICES, SOFTWARE, UPDATES, UPGRADES, OR ANY OTHER INFORMATION OR MATERIALS PROVIDED TO SUBSCRIBER HEREUNDER WILL SATISFY SUBSCRIBER’S REQUIREMENTS, OR BE UNINTERRUPTED OR FREE OF OMISSIONS, ERRORS OR DEFECTS.  MACGREGOR DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR SERVICES.  M.FOLIO, DOCUMENTATION, AND THE WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. 

Except as otherwise stated in this Agreement, MacGregor further disclaims all responsibilities for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of, or in any way related to (a) any third party web sites or content therein directly or indirectly accessed through links provided in or in connection with the M.Folio Services, (b) Subscriber’s or any Authorized User’s use of the M.Folio Services or the information accessible therefrom or any decision made using the M.Folio Services, or (c) unauthorized access to the M.Folio Services or information provided therein. 

10.3 Subscriber’s Warranty.  

Subscriber represents and warrants that Subscriber shall have the full power to enter into and perform this Agreement and to make the grant of rights contained herein, and Subscriber’s performance of this Agreement shall not violate or conflict with any agreement to which Subscriber is a party.  Subscriber shall also be solely responsible to (a) ensure that it and its Authorized Users use the M.Folio Services only for the Approved Purpose; (b) configure its M.Folio account and the account of any and all Authorized Users; (c) ensure Authorized Users exit or log off at the conclusion of each session; (d) supervise each Authorized User’s use of M.Folio; and (e) maintain necessary confidentiality and security for Subscriber Data and account information. 

Except as otherwise stated in this Agreement, Subscriber assumes the full and sole responsibility and liability as to the use of the M.Folio Services.  Subscriber shall have the sole responsibility to verify that the M.Folio Services are usable for any particular project and comply with any regulations, laws, conventions, or requirements, and to ensure the accuracy of Subscriber Data. MacGregor is not responsible for determining the suitability or legality of an electronic signature for any specific document, and that responsibility will rest solely with the Subscriber and its Authorized Users. 

  1. Limitation of Liability. 

Except as otherwise set forth in this Agreement, in no event shall MacGregor (including its officers, employees, and agents) be responsible or liable for any loss of profit, business, revenue, use, data, opportunity or any indirect, special, consequential, incidental, punitive or other damages whatsoever, including downtime costs, failure to realize expected savings, loss or unavailability of or damage to data, or software restoration, arising out of this Agreement or Subscriber’s possession or use of M.Folio, regardless of the theory of liability, whether under contract, warranty, strict liability, or in tort (including negligence) or otherwise, even if such damage may have been foreseeable or MacGregor may have been previously advised of the possibility of such damage. 

Notwithstanding the foregoing, and except for (i) claims for a breach of confidentiality pursuant to Section 12 and (ii) claims with respect to which MacGregor is obligated to provide indemnity pursuant to Section 16, in no event shall MacGregor’s liability arising out this Agreement exceed, in the aggregate, the total Fees paid hereunder by Subscriber to MacGregor during the twelve-month period preceding the event giving rise to the claim.  The limitations specified in this Section shall survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. 

Subject to applicable law, Subscriber acknowledges and agrees that the limitations of liability and restrictions set forth in this Agreement are reasonable under the circumstances. 

  1. Confidentiality. 

12.1 Confidential Information.  

Except as provided in Section 12.3, each Party agrees that all information supplied by one Party and its affiliates and agents (collectively, the “Disclosing Party”) to the other (“Receiving Party”) including, without limitation, (i) source code, prices, trade secrets, databases, designs and techniques, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials; and (ii) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, information relating to Subscriber’s customers, business partners, and personnel, Personal Data (as defined in Section 15.1), and unpublished financial information, including information concerning revenues, profits and profit margins will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”).  Subscriber acknowledges that M.Folio and its supporting Documentation constitute and incorporate MacGregor’s Confidential Information. 

12.2 Exclusions.  

Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement, obligation or duty; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party. It will be presumed that any Confidential Information in a Receiving Party’s possession is not within exceptions (b), (c) or (d) above, and the burden will be upon the Receiving Party to prove otherwise by records and documentation. 

12.3 Treatment of Confidential Information.  

Each Party recognizes the importance of the other’s Confidential Information. In particular, each Party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither Party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section 12 and elsewhere in this Agreement. Accordingly, each Party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance, which shall not be less than the standard of care imposed by applicable laws and regulations relating to the protection of such information and, in the absence of any legally imposed standard of care, the standard shall be that of a reasonable person under the circumstances; (b) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; and (c) the Receiving Party currently has, and for so long as it possesses Confidential Information of the Disclosing Party, it will maintain in effect and enforce, rules and policies to protect against access to or use or disclosure of Confidential Information other than in accordance with this Agreement, including without limitation written instruction to and agreements with employees and agents who are bound by an obligation of confidentiality no less restrictive than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information. The Receiving Party will instruct and require its employees and agents not to disclose Confidential Information to third parties, including without limitation customers, subcontractors or consultants, without the Disclosing Party’s prior written consent; and will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect all proprietary rights in and ownership of its Confidential Information. 

12.4 Compelled Disclosures.  

To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed. 

12.5 Return of Confidential Information.  

Upon expiration or termination of this Agreement for any reason, MacGregor shall promptly: (a) return or destroy all originals and copies of all documents and materials it has received containing Subscriber’s Confidential Information; and (b) deliver or destroy all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by MacGregor, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (a). On termination or expiration of this Agreement, Subscriber shall promptly:  (a) return or destroy all originals and copies of all documents and materials it has received containing MacGregor’s Confidential Information; and (b) deliver or destroy all originals and copies of all summaries, records, descriptions, modifications, negatives, drawings, adoptions and other documents or materials, whether in writing or in machine-readable form, prepared by Subscriber, prepared under its direction, or at its request from the documents and materials referred to in subparagraph (a). 

12.6 Non-Exclusive Equitable Remedy.  

Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies and may seek and obtain injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss or posting of a bond or other security, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 12 will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching Party. 

  1. Intellectual Property and Data. 

13.1 Definitions. 

  1. Subscriber Property” means any property or intellectual property provided by Subscriber or its agents to MacGregor for use in connection with the Services, including, but not limited to, any data, images, programming, computer code, photographs, illustrations, graphics, audio clips, video clips, or text. Subscriber grants MacGregor a non-exclusive, non-transferable, non-sublicensable, terminable at-will license to use the Subscriber Property solely for Subscriber’s benefit in performing the Services. Upon Subscriber’s written request or upon expiration of this Agreement or termination of this Agreement for any reason, the foregoing license shall immediately terminate. All Subscriber Property shall be deemed Subscriber Confidential Information.
  2. MacGregor Property” means any property or intellectual property provided by MacGregor to Subscriber for use in connection with M.Folio and the Services, including but not limited to all rights, including future rights in inventions, patents, designs, copyrights, trademarks, service marks, databases, and typography rights (whether or not any of those is registered and including applications for registrations of the foregoing), together with all trade secrets, know-how and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of those which may subsist anywhere in the world without limiting the foregoing. All MacGregor Property shall be deemed MacGregor Confidential Information.
  3. Pre-Existing Property” means all property, including intellectual property owned, invented, developed, or obtained by either Party prior to or independent of this Agreement.
  4. Subscriber Data” means any and all Subscriber information provided, inputted, or uploaded to M.Folio by or on behalf of Subscriber.

13.2 Ownership of Property. 

All Pre-Existing Property owned by each Party and any enhancements to such property thereto, shall remain the property of such Party.  If the non-owner party creates an enhancement to such Pre-Existing Property, such party shall promptly disclose such enhancement to the owner-party and take all actions necessary to vest rights in such enhancement with the applicable owner.  For clarity, MacGregor shall retain ownership of all Pre-Existing Property provided to Subscriber in any Deliverables and in any other items provided in performance of its obligations, excluding any Confidential Information of Subscriber or Subscriber Property.   

13.3 MacGregor’s Ownership of Property 

All feedback provided by Subscriber related to any Pre-Existing Property of MacGregor, including suggested improvements, modifications, or enhancements shall be deemed to be Confidential Information of MacGregor.  MacGregor may use such feedback for any purpose, including improving and modifying the Services or creating new products and services.  MacGregor shall own all rights, title, and interests in and to any improvements and modifications to existing Services and any new products and services created using the feedback of Subscriber.  Subscriber shall not take any action that jeopardizes or could jeopardize any MacGregor property.  Upon MacGregor’s request, Subscriber shall execute and deliver to MacGregor all instruments and other documents and shall take such other actions reasonably requested by MacGregor, so that MacGregor may protect and defend its right in and to the MacGregor Property.  Furthermore, Subscriber acknowledges that as a part of performing its obligations hereunder, MacGregor may utilize proprietary software, methodologies, tools, specifications, drawings, sketches, models, samples, records, documentation, works of authorship or creative works, ideas, knowledge, data or other materials which have been originated or developed by MacGregor or its affiliates or by third parties under contract to MacGregor or its affiliates to develop same, or which have been purchased by, or licensed to, MacGregor (collectively, MacGregor Proprietary IP”) and that all MacGregor Proprietary IP and  MacGregor’s administrative communications, records, files and working papers relating to performance of MacGregor’s obligations hereunder are and shall remain the sole and exclusive property of MacGregor, excluding any Confidential Information of Subscriber or Subscriber Property. 

13.4 Subscriber’s Ownership of Property. 

Subscriber shall retain and own all rights in or related to the Subscriber Property; provided, however MacGregor may, at its sole discretion, aggregate, make anonymous, and use Subscriber Data for its internal business purposes and other marketing-related activities. 

13.5 Subscriber Data. 

Subscriber acknowledges and agrees that MacGregor shall have no obligation to monitor Subscriber Data and that MacGregor shall have no liability (including no liability for damages caused by viruses and other malicious code contained in Subscriber Data) to Subscriber or any third party for same. 

Subscriber shall ensure that Subscriber’s Data does not:  (a) violate any foreign, federal, state or local law or regulation; (b) infringe, misappropriate or otherwise violate any copyright, trademark or other intellectual property or other proprietary right of any third party; (c) in any way infringe upon or violate any third party’s privacy right, right of publicity or any other right of any person or entity; (d) contain any material which is unlawful, hateful, obscene, libelous, threatening or defamatory; or (e) contain any virus or other malicious code (collectively, “Prohibited Acts”).  In the event that either Party becomes aware that any item of Subscriber Data constitutes or may constitute a Prohibited Act, the Parties shall notify each other of, and work together promptly and in good faith to remedy, any such Subscriber Data issues; provided, however, that MacGregor shall have the right to remove such item of Subscriber Data until the Parties agree on a resolution.  Subscriber agrees to incorporate commercially reasonable measures to screen for viruses and other malicious code before Subscriber provides, inputs, or uploads any Subscriber Data. 

  1. Security.

MacGregor will maintain and enforce safety and physical security procedures with respect to its access, use, and possession of Subscriber’s Confidential Information, including Personal Data, that are (a) at least equal to industry standards for such types of locations, and (b) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of such information. Without limiting the generality of the foregoing, MacGregor will take all reasonable measures to secure and defend its location and equipment against “hackers” and others who may seek, without authorization, to modify or access MacGregor systems or the information found therein. MacGregor will periodically test its systems for potential areas where security could be breached. MacGregor will immediately report to Subscriber any breaches of security or unauthorized access to Subscriber’s Confidential Information, including Personal Data, that MacGregor detects or becomes aware of. MacGregor will use diligent efforts to remedy such breach of security or unauthorized access in a timely manner and will investigate and deliver to Subscriber an incident report detailing MacGregor’s findings. MacGregor agrees not to notify any regulatory authority nor any customer or consumer, on behalf of Subscriber unless Subscriber specifically requests in writing that MacGregor do so. MacGregor and Subscriber will work together to formulate a plan to rectify all security breaches. 

Notwithstanding the foregoing, Subscriber acknowledges and agrees that MacGregor shall have no obligation to monitor Subscriber’s Personal Data and that MacGregor shall have no liability to Subscriber or any third party for any damages or claims arising out of any viruses or malicious code contained in Subscriber’s Data, through no fault of MacGregor. 

  1. Personal Data. 

15.1 Personal Data.  

In connection with this Agreement and performance of the Services, MacGregor may be provided or obtain, from Subscriber or otherwise, Personal Data, as defined below, pertaining to Subscriber’s personnel, directors and officers, agents, subcontractors, investors, and customers and (ii) may need to process such Personal Data and/or transfer it, all subject to the restrictions set forth in this Agreement and otherwise in compliance with all applicable foreign and domestic laws and regulations for the sole purpose of performing the Services. For purposes of this Agreement, “Personal Data” shall mean any information relating to an identified or identifiable individual. For the avoidance of doubt, Personal Data shall include, but not be limited to, all “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 United States Code (“U.S.C.”) § 6801 et seq.), “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d), “cardholder information” under the Payment Card Industry (“PCI”) Data Security Standard, and “Personal Data” as that term is defined in EU Data Protection Directive (Directive 95/46/EEC) on the protection of individuals with regard to processing of personal data and the free movement of such data. “Process” or “Processing” shall mean any operation or set of operations performed upon the Personal Data, whether or not by automatic means, including collection, recording, organization, use, transfer, disclosure, storage, manipulation, combination and deletion of Personal Data. 

15.2 Treatment of Personal Data.  

Without limiting any other warranty or obligation specified in this Agreement, and in particular the confidentiality provisions of Section 12, during the Term and thereafter in perpetuity, except as set forth in Section 13.4, MacGregor will not gather, store, log, archive, use or otherwise retain any Personal Data in any manner and will not disclose, distribute, sell, share, rent or otherwise transfer any Personal Data to any third party, except as expressly required to perform its obligations under this Agreement or as MacGregor may be expressly directed in advance in writing by Subscriber. MacGregor represents, covenants, and warrants that MacGregor will use Personal Data only in compliance with (i) this Agreement and (ii) all applicable local, state, federal, and international laws and regulations (including but not limited to all current and future laws and regulations relating to privacy, confidentiality, consumer protection, advertising, electronic mail, data security, data destruction, and other similar laws, rules, and regulations).  

MacGregor will notify Subscriber of any actual or suspected breach of confidentiality or security with regard to Personal Data as soon as practicable, but no later than twenty-four (24) hours after MacGregor becomes aware of such actual or suspected breach. MacGregor shall promptly take all necessary and advisable corrective actions and shall fully cooperate with Subscriber in all reasonable and lawful efforts to prevent, mitigate, or rectify such actual or suspected breach.  MacGregor shall assist the Subscriber to notify the relevant governmental authority and affected individuals of the actual or suspected breach, where required.  MacGregor will make no filings, notices, or public statements in relation to any actual or suspected breach without Subscriber’s prior written consent.  MacGregor shall be responsible for any reasonable costs and expenses associated with the performance of its obligations described in this paragraph. 

15.3 Retention of Personal Data.  

MacGregor will not retain any Personal Data for any period longer than necessary for MacGregor to fulfill its obligations under this Agreement. As soon as MacGregor no longer needs to retain such Personal Data in order to perform its duties under this Agreement, MacGregor will promptly return or destroy or erase all originals and copies of such Personal Data. 

  1. Indemnification. 

16.1 MacGregor’s Indemnity.  

MacGregor shall defend, indemnify, and hold harmless Subscriber and its directors, officers, agents, and employees (“Subscriber Indemnitees”) from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs as provided herein arising out of or relating to (a) any alleged act or failure to act by MacGregor or its directors, officers, agents, or employees, including, without limitation, negligent or willful misconduct, alleged to infringe the intellectual property rights of a third person, including infringement claims relating to Subscriber’s authorized use of the M.Folio Services or any Deliverables or (b) any breach of the provisions of Section 12 (Confidentiality) or Section 13 (Intellectual Property), (collectively referred to for purposes of this Section 16.1 as “Claim(s)”), including the payment of all amounts that a court or arbitrator awards or that MacGregor agrees to in settlement of any Claim(s) as well as any and all reasonable expenses or charges as they are incurred by Subscriber or any other party indemnified under this Section 16.1 in cooperating in the defense of any Claim(s). Subscriber shall: (i) give MacGregor prompt written notice of such Claim; and (ii) allow MacGregor to control, and fully cooperate with MacGregor in, the defense and all related negotiations. Notwithstanding the foregoing, MacGregor shall have no indemnity obligation for intellectual property infringement claims arising from (i) specifications provided by Subscriber; (ii) use of the Services in combination with software and/or hardware that is not approved or provided by MacGregor, or otherwise inconsistent with the Documentation; (iii) any modification, alteration, or enhancement to M.Folio or its Documentation by any person or entity other than MacGregor; or (iv) Subscriber’s failure to discontinue the allegedly infringing activity after being notified thereof or Supplier’s failure to implement an update or enhancement to the Services, provided MacGregor provides Subscriber with notice that implementing the update or enhancement would avoid the infringement. 

16.2 Additional Remedy.  

If the M.Folio Services or any Deliverables become the subject of an infringement claim under Section 16.1 (MacGregor’s Indemnity), or is likely to become the subject of such a claim, MacGregor shall have the right, at its option and in its sole discretion, to: (a) immediately replace or modify M.Folio to become non-infringing but functionally equivalent; or (b) remove the infringing or violative aspect of M.Folio. If MacGregor fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim (and such time has not been extended by Subscriber in writing), MacGregor shall refund to Subscriber all sums paid by Subscriber under this Agreement or the applicable Order for the infringing deliverable or Professional Service, within thirty (30) days of Subscriber’s demand for same. 

16.3 Subscriber Indemnity. 

Subscriber shall defend, indemnify, and hold harmless MacGregor and its directors, officers, agents, and employees from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees and court costs as provided herein arising out of or relating to:  (a) any breach of the provisions of Section 13 (Intellectual Property), including damages caused by viruses and other malicious code contained in Subscriber Data uploaded to M.Folio by Subscriber, (b) any breach of the provisions of Section 12 (Confidentiality), (c) any other violation of this Agreement by Subscriber or its Authorized Users, and (d) Subscriber’s use of the M.Folio Services by Subscriber or its Authorized Users. 

  1. Termination. 

17.1 Termination Upon Breach.  

Either Party (the “Non-Breaching Party”) may, without prejudice to any other right or remedy, terminate this Agreement upon written notice to the other Party if any of the following events occur by or with respect to such other Party (the “Breaching Party”): (a) the Breaching Party commits a material breach of any of its obligations hereunder and fails to cure such breach within 30 days after receipt of notice of such breach or fails to reach an agreement with the Non-breaching Party regarding the cure thereof; or (b) any insolvency of the Breaching Party, any filing of a petition in bankruptcy by or against the Breaching Party, any appointment of a receiver for the Breaching Party, or any assignment for the benefit of the Breaching Party’s creditors.  

17.2 Restriction on Access.  MacGregor may suspend or otherwise restrict Subscriber’s or any Authorized User’s access to the M.Folio Services if MacGregor, in good faith, believes Subscriber or an Authorized User has violated this Agreement.  MacGregor shall provide notice to the affected party unless:  (a) MacGregor is prohibited from doing so under applicable law or under legal process or (b) it is necessary to delay notice in order to prevent imminent harm to MacGregor or a third-party, given that once there is no further risk of imminent harm to MacGregor or a third-party, MacGregor shall then provide notice. 

17.3 Effect of Termination.  

Upon termination of this Agreement or of any Order: 

A. All rights granted to Subscriber shall cease; 

B. Subscriber and each Authorized User shall immediately cease any and all access to and use of the M.Folio Services or the Documentation; 

C. MacGregor shall cease to perform the Services under the applicable Order(s); 

D. Subscriber will pay to MacGregor all sums due to MacGregor for Services performed through the Term.  If this Agreement or any Order is terminated before the end of its then current term for any reason other than by Subscriber pursuant to Section 17.1, then Subscriber will pay to MacGregor the amount due by Subscriber for the remainder of the then current term within thirty (30) days after such termination.   

E. Expiration or termination of this Agreement for any reason will not release either Party from any liabilities or obligations set forth in this Agreement which (i) the Parties have expressly agreed in writing will survive any such expiration or termination or (ii) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination; 

F. Each Party shall return to the other or destroy any Confidential Information of the other; 

G. Upon written request and upon payment of the transfer fee (“Transfer Fee”), MacGregor shall transfer to Subscriber a copy of the most recent backup of Subscriber’s Data.  If Subscriber does not submit this written request within forty-five (45) days of termination, the backup will no longer be available, and all Subscriber Data hosted by MacGregor will be permanently deleted.  The Transfer Fee shall not exceed three (3) times the average monthly amount of Fees paid by Subscriber during the then-applicable subscription term; and 

H. Upon written request, either Party shall deliver to the other an affidavit from an appropriate officer which certifies compliance with these termination obligations.   

17.4 Survival.  

Sections 9 (Independent contractor), 10 (Representations and Warranties), 11 (Limitation of Liability), 12 (Confidentiality), 13 (Intellectual Property), 16 (Indemnification), 17.3 (Effect of Termination), 17.4 (Survival), and 18 (Miscellaneous) shall survive any termination or expiration of this Agreement. 

  1. Miscellaneous. 

18.1 Third-Party Programs. 

The M.Folio Services may include software under license from third parties, including, without limitation, third party and open source components, and any such third-party software and related documentation is licensed to Subscriber subject to the terms and conditions of the corresponding third-party license.  By entering into this Agreement, Subscriber agrees to accept the additional terms and conditions, if any, set forth therein.  Generally, the third-party software is located in a .txt or readme file in the software. 

18.2 Force Majeure.  

Neither Party shall liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, pandemic, or acts of God, in which event the non-performing Party shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.  Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within three (3) business days of its occurrence. 

18.3 Notices.  

All notices under this Agreement shall be given in writing to the other Party.  Notices shall be effective when received as indicated on the registered mail, or other delivery receipt.  All notices shall be given by one Party to the other at its address stated below unless a change thereof previously has been given to the Party giving notice. Either Party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective. 

If to MacGregor, to: 

 MacGregor Partners, LLC 

Attention:  Jason Ziegler 

4509 Creedmoor Road, Suite 201 

Raleigh, NC 27612 

If to Subscriber, to the address set forth on the signature page of the applicable Order Form. 

18.4 Exhibits, Orders and Addenda.  

All Exhibits, Orders, and Addenda that are referenced herein and appended hereto, or are signed by the Parties on or after the date of this Agreement, are hereby incorporated by reference. The following Exhibits are attached hereto and incorporated herein: 

Exhibit A – Service Levels and Performance Standards 

18.5 Entire Agreement.  

This Agreement, which is comprised of General Terms and Conditions, Exhibits, addenda, attachments, and Orders, contains all of the covenants and agreements between the Parties with respect to the rendering of the Services and any other matter hereunder, and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the Parties with respect to the rendering of such Services and any other matter hereunder. Each Party acknowledges that no representations, inducements, promises or agreements, orally or otherwise have been made by any Party. No other agreement, statement or promise not contained in this Agreement, and no changes or modifications to this Agreement, shall be effective unless it is in writing and signed by both Parties. 

18.6 Binding Effect and Assignment. 

This Agreement is not transferable, assignable, delegable, or sublicensable by Subscriber in whole or in part, without the prior written permission of MacGregor.  This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors, trustees, administrators, and assigns. 

18.7 Third Party Beneficiary. 

This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns. 

18.8 Legal Fees.  

If any dispute arises between the Parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded. 

18.9 Waivers.  

All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. 

18.10 Governing Law; Venue.  

The interpretation and enforcement of this Agreement shall be governed by the law of the State of North Carolina without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed.  The Parties hereby agree that their respective rights and obligations hereunder shall be solely and exclusively set forth herein and that the Uniform Computer Information Transactions Act (UCITA), whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, shall not apply to this Agreement and is hereby disclaimed.  The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in Raleigh, North Carolina. This choice of venue is intended by the Parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the Parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each Party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section. 

18.11 Severability.  

If any provision of this Agreement or the application thereof to any persons or circumstances is, to any extent, held invalid or unenforceable by a court of competent jurisdiction, or if the Securities and Exchange Commission or Federal Trade Commission impose any obligations on either Party that cause any provision of this Agreement to be invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable will not be affected thereby to the extent the benefits conferred upon the Parties by this Agreement remain substantially unimpaired, and each provision of this Agreement will be valid and enforceable to the extent permitted by law. If severability of the provision(s) would materially change the benefits of this Agreement to either Party, the Parties shall modify such provision(s) to obtain legal, enforceable and valid provision and provide benefits to the Parties that most nearly effects the Parties’ intent in entering into this Agreement. 

18.12 Agreement Drafted By All Parties.  

This Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party. 

18.13 Headings. 

The section and paragraph headings contained in this Agreement are for convenience of reference only and shall not affect, define, or limit in any way the meaning or interpretation of the Agreement. 

18.14 Counterparts.  

Any Orders, Exhibits, addenda, or attachments may be executed in one or more counterparts, each of which shall be deemed an original. 

18.15 Electronic Signatures and Facsimiles – Binding.  

Any Orders, Exhibits, addenda, or attachments and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and MacGregor’s acceptance will be deemed binding between the parties. MacGregor acknowledges and agrees it will not contest the validity or enforceability of any Orders, Exhibits, addenda, or attachments and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. MacGregor further acknowledges and agrees that it will not contest the validity or enforceability of a signed facsimile copy of any Orders, Exhibits, addenda, or attachments and related documents on the basis that it lacks an original handwritten signature. Facsimile signatures shall be considered valid signatures as of the date hereof.