Steelhead Technologies Software license agreement

SOFTWARE LICENSE AGREEMENT THIS SOFTWARE LICENSE AGREEMENT (this “Agreement”) is entered into as of this Monday, March 28, 2022 (the “Effective Date”) by and between by and between [Steelhead Technologies Inc, a Michigan corporation] (“Steelhead”) and [«Customer»] (“Licensee”).  Steelhead and Licensee may collectively be referred to herein as the “Parties” or individually as a “Party.”   BACKGROUND WHEREAS, Steelhead is in the business of developing and offering innovative manufacturing and business solutions and technology, and has developed a proprietary [business management and manufacturing plant operations software] [further described in Exhibit A hereto] (the “Software”); and  WHEREAS, Steelhead has agreed to grant to Licensee a limited license to the Software, on the terms and subject to the conditions set forth in this Agreement. NOW THEREFORE, in consideration of the foregoing premises and the mutual representations, warranties, covenants and undertakings set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:  1. Software License.  1.1 Grant of License.  Subject to the terms and conditions of this Agreement, Steelhead hereby grants to Licensee a limited, non-exclusive, non-transferable, non-assignable, non-sublicenseable license during the Term (as defined herein) to install and use the Software and any related user manuals, handbooks, and installation guides relating to the Software as may be provided by Steelhead (“Documentation”) solely for Licensee’s internal business use.  The total number of “Concurrent Users” (as defined in Section 1.2 below) will not exceed the number set forth in Exhibit A, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees (as defined herein) payable hereunder.  1.2 Use Restrictions.  Licensee will not use the Software for any purposes beyond the scope of the license granted in this Agreement.  Except as otherwise expressly permitted herein, and without limiting the generality of the foregoing, Licensee will not: (i) authorize or permit use of the Software by persons other than the employees of Licensee granted access to the Software by Licensee (“Concurrent Users” or “End User”); (ii) distribute, publish, display or copy the Software; (iii) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Licensee’s rights under the licenses granted in this Agreement; (iv) modify or create any derivative works of the Software (or any component thereof), without the prior express written consent of Steelhead; (v) reverse engineer, decompile, disassemble, or otherwise attempt to obtain or perceive the source code of the Software (or any component thereof); and/or (vi) remove, alter, or obscure any proprietary notice or legend of Steelhead, its suppliers, or licensors on any copy of the Software.  Licensee acknowledges and agrees that it is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, by itself or by unrelated third parties, whether such access or use is permitted by or in violation of this Agreement. For the avoidance of doubt, Licensee shall be responsible and liable for the acts and omissions of each End User to the same extent as if such acts or omissions were by Licensee. 2. Support and Services. 2.1 Updates.  During the Term, Steelhead may provide Licensee, in its sole discretion, with any updates, bug fixes, patches, or other error corrections to the Software that Steelhead may make generally available to its licensees at no additional charge (“Updates”).  All Updates provided by Steelhead to Licensee are deemed Software and subject to the terms of this Agreement.  Licensee will install all Updates as soon as practicable after receipt.  Licensee does not have any right hereunder to receive any new version of the Software that Steelhead may from time to time introduce and market generally as a distinct licensed product or new enhancements or features to the Software provided at an additional cost.  Except as expressly set forth in this Agreement or as mutually agreed in writing between the Parties, this Agreement does not entitle Licensee to any support for the Software. 2.2 Professional Services.  Subject to these terms and conditions of this Agreement, including any applicable fees set forth on Exhibit A, Steelhead shall provide certain implementation, configuration, data loading, advisory, consulting, and training services in the quantity as may be listed on Exhibit A , which in Steelhead’s sole opinion is reasonably necessary for Licensee to install, access, and use the Software (the “Professional Services”). To the extent Licensee wishes to engage Steelhead to conduct an additional quantity of Professional Services beyond the quantity contemplated hereunder, the Parties shall agree to the terms for such additional quantity of Professional Services in a separate statement of work, which shall constitute an addendum to Exhibit A of this Agreement, as mutually agreed upon and executed by the Parties.   3. Payment Terms.   3.1 Fees.  Fees for the license of the Software and related services (the “Fees”) during the Initial Term (as defined herein) of this Agreement are set forth on Exhibit A hereto, and are based on the number of Concurrent Users during the Term; provided, that Licensee shall provide prior written notice to Steelhead of any proposed increase in the number of Concurrent Active Users during the Term and shall pay any additional fees due for the proposed adjusted number of total Concurrent Active Users on a pro-rata basis for the remainder of the Term.  All Fees shall be invoiced in advance and in full and are payable as set forth in this Section 3.  Following each completed Term (as defined in Section 7.1 below, at Steelhead’s sole discretion, the Fees may be subject to an increase upon seven (7) days written notice thereof to Licensee. 3.2 Payment Terms.  All amounts due from Licensee to Steelhead under this Agreement shall be paid within thirty (30) days of the invoice date.  Any amount not received by Steelhead when due shall be subject to an interest charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.  Except as expressly provided in this Agreement, all payments made by Licensee to Steelhead hereunder are non-refundable. 3.3 Taxes.  Licensee shall pay all taxes, duties or charges of any kind (including withholding or value added taxes) imposed by any federal, state, or local governmental entity for Software provided under this Agreement, excluding only taxes based solely on Steelhead’s net income.  Licensee shall hold Steelhead harmless from any and all claims or liabilities arising from Licensee’s failure to support or pay any such taxes, duties, or charges. 3.4 Auditing Rights and Required Records.  Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.  Steelhead may, at its own expense, on reasonable prior notice, periodically inspect and audit Licensee’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Licensee has underpaid Steelhead with respect to any amounts due and payable during the Term, Licensee shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 3.2. Licensee shall pay for the costs of the audit if the audit determines that Licensee’s underpayment equals or exceeds 5% for any quarter.  Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two (2) years after the termination or expiration of this Agreement. Licensee shall provide Steelhead with all reasonable assistance necessary to perform an audit pursuant to this Section, and Licensee acknowledges and agrees that time is of the essence with respect to its performance relative to the same. 4. Warranties.   4.1 Mutual Warranties.  Each Party represents and warrants to the other that (i) it is duly formed and subsisting in good standing as of the Effective Date under the laws of its jurisdiction; (ii) that its entry into this Agreement was neither induced by nor done in reliance upon any express or implied understanding, promise, inducement, statement, representation, warranty or other matter not set forth in writing in the express terms and conditions of this Agreement; and (iii) the execution, delivery and performance of this Agreement will not conflict with or result in any breach of any covenant or agreement contained in, or constitute a default under, any agreement or other obligation to which a Party is bound. 4.2 Licensee Warranties. Licensee represents and warrants to Steelhead: (a) its use of the Software, all Updates thereto, and all Documentation will be in conformance with all applicable state, federal, and international laws, including but not limited to any applicable privacy laws and regulations; (b) it acknowledges and agrees that the Software and all Updates thereto may rely on the internet to function properly, and that Steelhead does not warrant the performance of the Software and all Updates thereto to the extent that the same malfunction, fail, or are interrupted by a lack of internet services or connectivity.   4.3 No Other Warranties.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, STEELHEAD MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE WITH RESPECT TO THE SOFTWARE, SERVICES, DOCUMENTATION, OR OTHER MATERIALS PROVIDED BY STEELHEAD IN CONNECTION WITH THIS AGREEMENT.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STEELHEAD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  STEELHEAD DOES NOT WARRANT THAT THE SOFTWARE, SERVICES, OR ANY OTHER INFORMATION OR MATERIALS PROVIDED UNDER THIS AGREEMENT WILL MEET LICENSEE’S OR ANY THIRD PARTY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 5.   Proprietary Rights.   5.1 Ownership of Software.  Licensee acknowledges that Steelhead retains all rights, title and interests in and to the original, and any copies of, the Software, all Updates thereto, and all Documentation.  For the avoidance of doubt, the Software is licensed, not sold, and ownership of all patents, copyrights, trademarks, trade names, trade secrets, technology, ideas, know-how, and other intellectual property and proprietary rights (collectively, “Intellectual Property Rights”) pertaining thereto shall be, and remain, the sole and exclusive property of Steelhead.  Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to the Software. 5.2 Feedback.  If Licensee or any of its employees or End Users sends or transmits any communications or materials to Steelhead by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Licensee hereby assigns to Steelhead on Licensee’s behalf, and on behalf of its employees and End Users, all right, title, and interest in, and Steelhead is free to use, without any attribution or compensation to any party, any Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Steelhead is not required to use any Feedback. 5.3 Licensee Data. As between the Parties, Licensee shall own all Intellectual Property Rights in any data input into or collected, processed, or stored using the Software by Licensee or an End User (“Licensee Data”).  Licensee represents and warrants that Licensee owns or otherwise has and shall maintain the necessary rights and consents in and relating to the Licensee Data so that, as input into and processed by the Software, such Licensee Data does not and shall not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party, or violate any applicable law. 6. Confidentiality. 6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all non­public, confidential or proprietary information disclosed before, on or after the Effective Date, by either Party or its affiliates, the receiving Party or to any of the receiving Party’s affiliates' employees, officers, directors, partners, shareholders, agents, attorneys, accountants or advisors (collectively, "Representatives"), whether disclosed orally or disclosed or accessed in written, electronic  or  other  form  or  media,  and  whether  or  not  marked,  designated  or  otherwise  identified  as "confidential,"  including,  without  limitation: (a) the terms and conditions of this Agreement, the Software, the Updates, and the Documentation; (b)  all  information  concerning  the  disclosing  Party's  and  its affiliates',  and  their  customers',  suppliers'  and  other third parties' past, present and future  business affairs including, without limitation, finances, business model, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and  business,  marketing,  development,  sales, pricing, costs,  and  other  commercial  strategies;  (c) all trademarks, service-marks, brands, domain names, website, logos, identifiers, copyrighted works, unpatented inventions, ideas, methods and discoveries, trade secrets, know­how, unpublished patent applications and other confidential intellectual property; (d) all designs, specifications, documentation, components, source code, object code, images,  icons,  audiovisual  components  and  objects,  schematics,  drawings,  protocols, processes,  and  other  visual  depictions,  in  whole  or  in  part,  of  any  of  the  foregoing;  (e) any third-party confidential information included with, or incorporated in, any information provided by a disclosing Party to the receiving Party or its Representatives;  and (f) all  notes,  analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (the "Notes") prepared by or for the receiving Party or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing. The Parties also acknowledge that Confidential Information shall also include any Trade Secrets of the disclosing Party, including but not limited to ideas, concepts, products, business plan, business relationships, product design, product configuration, product formulation, packaging, and other information (hereinafter referred to as “the Trade Secrets”), which may be disclosed to the receiving Party, all of which also constitute Trade Secrets under the Michigan Uniform Trade Secret Act.  6.2 Confidentiality Obligations.  The receiving Party shall not disclose or use any Confidential Information of the disclosing Party for any purpose outside the scope of this Agreement, except with the disclosing Party’s prior written permission.  Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).  Except as otherwise provided herein, the receiving Party may disclose the Confidential Information of the disclosing Party to its own officers, directors, affiliates, attorneys, accountants and End Users who have been informed in writing of the receiving Party’s confidentiality obligations hereunder and solely as necessary to perform for the receiving Party to perform its obligations hereunder. As a result of the unique nature of such Confidential Information and Trade Secrets of each Party, the Parties acknowledges and agrees that the disclosing Party may suffer irreparable harm if the receiving Party fails to comply with any of the obligations under this Agreement and that monetary damages will be inadequate to compensate the disclosing Party for any breach.  Accordingly, the receiving Party agrees that the disclosing Party shall be entitled to injunctive relief to enforce the terms of this Agreement, pursuant to MCL §445.1903, in addition to all other remedies available at law or in equity. 6.3 Compelled Disclosure.  Notwithstanding the foregoing, if the receiving Party is compelled by law, regulation or judicial order to disclose Confidential Information of the disclosing Party, it shall provide the disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. 6.4 Upon Termination.  Upon termination or expiration of this Agreement, each Party shall promptly return or destroy the Confidential Information of the other Party together with all copies thereof.  This Section 6 shall survive any expiration or earlier termination of this Agreement. 7. Term and Termination. 7.1 Term.  This Agreement will commence upon the Effective Date and continue for a period of [one month] (the “Initial Term”).  Upon the expiration of the Initial Term, this Agreement will automatically renew for successive [one-month terms] (each, a “Renewal Term”), unless either Party provides prior written notice of its intent not to renew the Agreement ten (10) days prior to the expiration of the then-current term.  The Initial Term and the Renewal Term shall be referred to herein collectively as the “Term”.   7.2 Termination for Cause.  Except as otherwise set forth herein, if either Party materially defaults in its performance or breaches any material term or condition of this Agreement, this Agreement may be terminated immediately after written notice of such breach or default by the non-defaulting Party to the defaulting Party, if the breaching Party has not cured such breach or default within thirty (30) days after such written notice. For purposes of this Section 7.2 written notice shall be considered effective on the date it is sent to the breaching Party regardless of when it is actually received. 7.3 Termination for Insolvency.  This Agreement may be terminated immediately upon written notice as follows: by either Party upon (i) the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of that Party’s debts; (ii) the other Party making an assignment for the benefit of creditors; or (iii) the other Party’s dissolution.  To the extent reasonably practicable and consistent with a Party’s confidentiality obligations, the Parties agree to use reasonable efforts to notify each other of the prospective occurrence of any of the above events thirty (30) days or more before the actual occurrence of such event. 7.4 Effect of Termination.  Upon the expiration or earlier termination of this Agreement: (i) except as expressly provided in this Agreement, all rights and obligations of the Parties hereunder will immediately terminate; (ii) Licensee will return all copies of the Confidential Information disclosed by Steelhead which remain in Licensee’s possession or under its control pursuant to Section 6.4 and otherwise comply with Section 6 hereof; (iii) Licensee will return or destroy, as directed by Steelhead, all instances of the Software, any Updates, and the Documentation in Licensee’s possession or under its control; and (iv) each Party’s obligation to pay all amounts due to the other accrued prior to termination (or, where applicable, as a result of or after termination) will not be affected.  Notwithstanding the foregoing, termination of this Agreement will not entitle Licensee to reimbursement or refund of any amounts already paid to Steelhead. 7.5 Survival.  The termination of this Agreement will not affect Sections 1.2, 3, 4, 5, 6, 7.5, 7.6, 8, 9 and 10, each of which will survive. 8. Indemnification. 8.1 Steelhead Indemnity. Steelhead shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Licensee resulting from any third-party claim, demand, suit, arbitration, action, or proceeding that the Software, or any use of the Software in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. If such a claim is made or appears possible, Licensee agrees to permit Steelhead, at Steelhead’s sole discretion, to (i) modify or replace the Software, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Licensee to continue use. If Steelhead determines that none of these alternatives is reasonably available, Steelhead may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.  This Section 8.1 will not apply to the extent that the alleged infringement arises from: (a) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Steelhead; (b) modifications to the Software not made by Steelhead; or (c) Licensee’s failure to install or use any Updates delivered to Licensee. THIS SECTION 8.1 SETS FORTH LICENSEE’S SOLE REMEDIES AND STEELHEAD’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. 8.2 Licensee Indemnity. Licensee shall indemnify, defend (at Steelhead’s sole option), and hold harmless Steelhead and any of its directors, officers, shareholders, employees, and agents from and against any Losses resulting from any and all causes of action, losses, liabilities, claims, damages, obligations, fees, costs, expenses (including but not limited to reasonable attorney’s fees and costs) based on Licensee’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement or in combination with data, software, hardware, equipment or technology not provided by Steelhead; (iii) modifications to the Software not made by Steelhead; or (iv) Licensee’s failure to install or use any Updates delivered to Licensee. Licensee shall not enter into any settlement or compromise with respect to such claim that would (a) impose any costs, obligations, or limitations on Steelhead, or (b) admit fault by Steelhead without Steelhead’s prior written consent. 9. Limitations of Liability. 9.1 Limit on Certain Damages.  EXCEPT FOR A PARTY’S BREACH OF SECTIONS 1.2 (USE RESTRICTIONS), 5 (PROPRIETARY RIGHTS), 6 (CONFIDENTIALITY), OR 8.2 (LICENSEE’S INDEMNITY), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECULATIVE, EXPECTATION, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOSS OF DATA, ARISING IN ANY WAY OUT OF THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.   9.2 Limit on Total Liability.  IN NO EVENT SHALL STEELHEAD’S TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER BASED ON ONE CLAIM OR MULTIPLE RELATED OR UNRELATED CALIMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNTS ACTUALLY PAID BY LICENSEE HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY. 9.3          STEELHEAD IS NOT LIABLE FOR ANY BUSINESS DECISIONS MADE BY LICENSEE OR ANY END USER, BASED OFF THE DATA DISPLAYED IN THE STEELHEAD SOFTWARE. 9.4          STEELHEAD WILL MAKE EVERY EFFORT TO BACKUP LICENSEE DATA BUT IS NOT RESPONSIBLE AND/OR LIABLE FOR THE LOSS OF CUSTOMER DATA. 10.          Miscellaneous.    10.1 Independent Contractors.  The Parties hereto understand and agree that this Agreement does not make either of them an agent or legal representative of the other for any purpose whatsoever.  Neither Party is granted, by this Agreement or otherwise, any right or authority to assume or create any obligation or responsibilities, express or implied, on behalf of or in the name of the other Party, or to bind the other Party in any manner whatsoever.  The Parties expressly acknowledge (i) that Steelhead is an independent contractor with respect to Licensee in all respects, including, without limitation, the provision of the Software and Services, and (ii) that the Parties are not partners, joint venturers, employees or agents of or with each other. 10.2 Further Assurances.  The Parties covenant and agree that, without any additional consideration, each of the Parties shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate this Agreement. 10.3 Force Majeure.  Neither Party will be held liable to the other for any delay or failure of performance where such delay or failure results from events beyond that Party’s control, including without limitation acts of God, earthquakes, fires, floods, civil disturbance, strikes, labor disputes, pandemics, and lawful governmental action. 10.4 Confidential Pre-Litigation Mediation.  As a condition precedent to the filing of a lawsuit by either Party, except when a Party seeks temporary or preliminary equitable relief or when delay will unduly prejudice a Party or either Party seeks to make a claim pursuant to the Construction Lien Act, the Parties agree to engage in a confidential and good faith mediation with a mediator to be chosen upon mutual agreement of the Parties. Unless mutually agreed to the contrary, the Parties will schedule the mediation to take place within fourteen (14) days of the date the dispute arises, or where are a Party seeks temporary or preliminary equitable relief, within thirty (30) days of the date the dispute arises. The Parties will comply with all confidentiality and other agreements reasonably required by the mediator. The Parties also agree to confer on the voluntary exchange of information, documents and other data that will assist the confidential mediation process reasonably required by the mediator. It is the express intent of the Parties that the mediation described in this Section supplant and supersede any other pre-litigation dispute resolution procedures, including those imposed by the court, by statute, or otherwise. 10.5 Governing Law and Venue.  This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of Michigan without regard to conflicts of laws principles.  Subject to Section 10.4., the Parties agree that the forum, jurisdiction and venue to bring any claims, controversies, or disputes arising from or related to this Agreement shall be exclusively in either the state courts for Houghton County, Michigan or the United States District Court for the Eastern District of Michigan, and the Parties hereby expressly agree to submit to the exclusive venue and jurisdiction of such courts. 10.6 Amendment; Waiver.  This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by both Parties.  No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and executed by the Party so waiving.  Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, or a failure or delay by any Party in exercising any power, right or privilege under this Agreement shall be deemed to constitute a waiver by the Party taking such action of compliance with any representations, warranties, covenants, or agreements contained herein, and in any documents delivered or to be delivered pursuant to this Agreement.  The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. 10.7 Notices.  Unless otherwise stated in this Agreement, all communications provided for hereunder shall be in writing and shall be deemed to be given when delivered in person or by private courier with receipt, when telefaxed and received, or three (3) days after being deposited in the United States mail, first-class, registered or certified, return receipt requested, with postage paid, If to Licensee: «Customer» «Street» ATTN: [«Contact»] If to Steelhead: Steelhead Technologies Inc 300 Hecla Street, Laurium MI 49913 ATTN: [«Sales_Name»]  , or to such other address as any such Party shall designate by written notice to the other Party. 10.8 Assignment.  Neither Party may assign or transfer any of its rights hereunder without the prior written consent of the other Party; provided, that Steelhead may assign or transfer its rights under this Agreement in the event of a change of control, merger, sale of all or substantially all of Steelhead’s assets, reorganization, or operation of law without the prior written consent of Licensee. 10.9 Construction.  Capitalized terms used in this Agreement have the meanings ascribed to them by definition in this Agreement This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. 10.10 Counterparts; Effectiveness.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.  Copies of executed counterparts transmitted by telecopy, telefax or other electronic transmission service shall be considered original executed counterparts for purposes of this Section. 10.11 Section Headings.  The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 10.12 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Licensee, Section 1.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 10.13 Severability.  If any provision of this Agreement shall be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement shall not be affected and shall remain in full force and effect, and Steelhead and Licensee shall negotiate in good faith to replace such illegal, void or unenforceable provision with a provision that corresponds as closely as possible to the intentions of the Parties as expressed by such illegal, void or unenforceable provision. 10.14 Entire Agreement; Privacy Policy.  This Agreement and the Privacy Policy (which may be located at gosteelhead.com) constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersede all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter hereof.   10.15 No Third-Party Beneficiary:  No person or entity not a party to this Agreement shall be deemed a third-party beneficiary of this Agreement for any purpose. 10.16 Attorney Fees: In the event of any legal or equitable action, including any voluntary arbitration, appeals or extraordinary writs, which may arise hereunder between or among the Parties hereto, the prevailing Party shall be entitled to recover a reasonable attorney fees and litigation costs.