Except as expressly set forth herein, words and phrases used in this Agreement have the definitions given in this Agreement or, if not defined herein, have their plain English meaning as commonly interpreted in the United States

(a) The term “Confidential Information” is defined as follows: all information (whether written, including on electronic media, or oral) furnished (whether before or after the date hereof) by MC² or by its directors, officers, employees, affiliates, non-employee representatives (including financial advisors, attorneys and accountants), or agents to you or your representatives for, relating to, or in conjunction with the Services or MC²’s business operations in general, including: (i) computer programs; (ii) employee, customer, supplier, and competitor information; (iii) blueprints, drawings, and other product designs and concepts; (iv) know-how and other manufacturing methods; (v) purchasing, cost, pricing, profitability, and other financial information; (vi) research and development, marketing, sales, contractual and other business plans and techniques; (vii) policies and training materials; (viii) inventions (whether patentable or not); (ix) works of authorship (whether copyrightable or not); (x) trade secrets, including but not limited to designs, sketches and renderings; (xi) any other confidential or proprietary information, and; (xii) all notes, reports, analyses, compilations, forecasts, studies or other documents prepared by either party or its representatives in connection with the Services or relating to MC²’s business operations in general which contain or reflect, or are based in whole or in part on, any such information.

(b) Notwithstanding anything herein to the contrary, it is understood that Confidential Information does not include information that:

(i)  is or subsequently becomes publicly available without the breach of any obligation owed to MC²; or

(ii) was received by you on a non-confidential basis and not in contravention of applicable law prior to the date of this Agreement and you can document such prior knowledge.

(c) You agree (i) to hold Confidential Information in confidence and to take all necessary precautions to protect Confidential Information, including all precautions you employ with respect to your own confidential materials; (ii) not to divulge any Confidential Information or any information derived therefrom to any person other than your employees or contractors who are required to use the Confidential Information for purposes of this Agreement and who are bound by agreement to keep such information confidential (and you will be responsible for any acts or omissions of such persons, as if they were parties hereto); and (iii) not to make any use whatsoever at any time of such Confidential Information except as reasonably necessary to further or facilitate the Services. You understand that this Agreement does not constitute a license or right to use the Confidential Information other than as specified herein. You agree and acknowledge that the Confidential Information is our personal property. We do not make any representations or warranties as to the accuracy, sufficiency or completeness of Confidential Information.

(d) If requested by us, you shall immediately return to us or destroy, at our option, all Confidential Information, including all copies, extracts, or other reproductions in whole or in part, and to certify the same by a writing executed by an authorized officer.

All Deliverables will, upon delivery to us, become our property. If any Service or Deliverable does not meet its specifications or is defective, you will (at your sole expense) re-perform such Service or repair or replace such Deliverable. In the event that you are unable to re-perform such Service or repair or replace such Deliverable to our satisfaction, you shall return to us all amounts paid by us to you for such Service or Deliverable and we may terminate this Agreement. This Agreement is not intended to govern the development of custom work product by you for us; in such cases, the parties would enter into a separate written agreement that contains terms appropriate therefor. To the extent that we do not acquire unrestricted rights to the Deliverables through purchase thereof, you hereby grant to us a perpetual, non-exclusive, royalty-free worldwide, license under your intellectual property rights for us to make use of the Deliverables as we desire in our sole discretion.

You represent, warrant and covenant to us that:

(a)     You are fully authorized to enter into and perform your obligations under this Agreement and are not bound by any agreement or obligation that may infringe on your ability to perform any of the duties that may be required of you under this Agreement;

(b)    All Services and Deliverables will be original and will not infringe upon the rights of any third party, and will not have been previously assigned, licensed or otherwise encumbered;

(c)     Exploitation of any Deliverable by us in any manner throughout the world, in perpetuity will not infringe on any rights of any third party including copyright, trademark, unfair competition, contract, defamation, and privacy or publicity rights;

(d)    You shall have sole and exclusive responsibility for the withholding and payment of any and all federal, state and local income, social security and other taxes due arising out of any monies paid to you for Services ;

(e)     You will comply with all of our written instructions and policies, and all applicable federal, state and local laws, rules and regulations relating to the provision of the Services and the delivery of the Deliverables under this Agreement;

(f)     You will maintain in effect, at your expense, all workers’ compensation, employee liability, comprehensive general liability and any other insurance as may be required by law or which is necessary to fully protect both you and us from any and all claims and damages that may arise from your performance under this Agreement;

(g)    The Services and Deliverables will be in conformity with all requirements set forth in the General Terms;

(h)     You will provide immediate notice to us in in the event that any of the representations and warranties set forth in this Agreement becomes untrue

Services in a professional and timely manner in accordance with the best industry standards and to our reasonable satisfaction;

(i)    You will perform the Services and provide the Deliverables using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet your obligations.

In the event that we provide Personal Data to you in connection with the Services, you agree to comply with the data processing addendum set forth at https://www.mc-2.com/faq-page (“DPA”). “Personal Data” means information or data that identifies or can be used to directly or indirectly identify, describe, contact, locate, or otherwise be related to or associated with an individual or household.

You hereby agree to indemnify, defend, and hold harmless us and our affiliates and our and their officers, directors, members, managers, shareholders, employees, agents, contractors, providers, licensees, successors-in-interest, and assigns (“Indemnified Parties”) from and against any and all claims, suits, demands, actions, losses, liabilities, damages, judgments, settlements, fines, penalties, fees, expenses and costs (including attorneys’ fees) (collectively, “Claims”) arising in any manner from: (a) our access to, or use of, the Services or Deliverables, (b) your gross negligence or more culpable act or omission, (c) the payment or non-payment of any taxes relating to any monies paid to you for Services; or (d) your breach of any representation, warranty, or other provision of this Agreement. We will provide you with notice of any Claim, and we will have the right to participate in the defense of any Claim and hire counsel of our choosing. You shall be required to pay to the Indemnified Parties, in advance of the final disposition of any Claim, all reasonable costs, fees, and expenses incurred by the Indemnified Parties in respect of such Claim (including, for purposes of clarity, all attorney’s fees and court costs). You may not settle any Claim without our consent. If you fail to diligently prosecute the defense of a Claim, then we may upon notice to you undertake to manage and control the defense of such Claim and its settlement at your expense. The indemnified parties are third-party beneficiaries of this Agreement and may enforce it. We will have the right to set off against all sums payable to you under this Agreement, any and all sums payable to us under this section.

(a) Venue And Governing Law. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against any other party in any way arising from or relating to this Agreement and all contemplated transactions, in any forum other than the United States District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction, the courts of the State of New York located in the Borough of Manhattan (the “Specified Courts”). If any matter is to be heard in court, each party irrevocably and unconditionally submits to the exclusive jurisdiction of, and agrees to bring any such action, litigation or proceeding only in, the Specified Courts. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

(b) Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

(c) Attorney Fees. In the event of any legal action relating to this Agreement, the substantially prevailing party (in addition to any other relief to which it may be entitled) shall be entitled to reimbursement of its reasonable attorney fees, costs, and expenses from the non-prevailing party (to the extent such fees, costs, and expenses were not previously paid in accordance with Section 6).

(a) Notices. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing and if delivered personally or if sent by registered mail, courier service or email requiring acknowledgment of receipt to our office or your place of business as set forth on the signature page to the General Terms (or, if not set forth there, to the place of business address or email address used in connection with entering into the General Terms). Notices sent by registered mail shall be deemed received three (3) days from the date of mailing. Notices sent by email shall be deemed received upon acknowledgement by return email. Either Party may change its address for notices under this Agreement by giving the other Party written notice of such change in accordance with this Section.

(b) Independent Contractor. Your relationship with us shall be that of an independent contractor and nothing in this Agreement shall constitute you as our employee, joint venturer, or partner. You shall have no authority to bind us in any respect. You agree to abide by the terms and conditions of any and all contracts and other agreements of us that you have been delegated obligations under pursuant to this Agreement. Without limiting your obligations hereunder, at all times, you are free to perform services for any other company or person as long as it does not violate your obligations under the this Agreement. You shall control the detail, manner and method of providing the Services.

(c) Equal Opportunity Employer. MC² is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.

(d) Assignment. The rights conferred by this Agreement shall not be assignable by you, by assignment, operation of law, change of control or otherwise, without our prior written consent. Any attempted assignment without such consent will be null and void. We may freely assign this Agreement.

(e) Entire Agreement; Survival; Interpretation. This Agreement constitutes the entire agreement between us and you as to the subject matter hereof, and supersedes all prior discussions and writings. All provisions of this Agreement, which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

(f) Amendment; Waiver. We may make any amendment, modification, or supplement to these TOS and any documents that these TOS expressly incorporate by reference. If we make such amendment, modification, or supplement to this Agreement, we shall notify you in writing of such. Any waiver or exemptions to any term, condition, or provision of this Agreement may only occur if such waiver or exemption is made in writing and signed by us. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of such term, condition, or provision.

(g) Invalidity. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, such term, provision, covenant or condition will be changed and interpreted to accomplish the objectives thereof to the greatest extent possible under applicable law, and the validity and enforceability of the remaining terms, provisions, covenants and conditions of this Agreement shall not in any way be affected, impaired or invalidated.

(h) Counterparts. The General Terms may be accepted by the parties using any method under applicable law, including electronic signature and email with scan attachment. Executed General Terms may be in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.