This Legal shall be effective as of November 22, 2022.
This Terms of Service Agreement (the “Agreement”) is between You and MKG Enterprises Corp (“MKG Enterprises Corp”). MKG Enterprises Corp is willing to grant you rights to establish an account and to access and use the Platform Services (as defined below) upon the condition that you accept all terms contained in this Agreement. Please read the terms carefully.
Stripe Treasury (Stripe), a third-party provider, is MKG Enterprises Corp’s backend software provider, and a partner of Evolve Bank & Trust (“Evolve”), a member bank of the Federal Deposit Insurance Corporation. Stripe Treasury, and its relationship with Evolve, enables MKG Enterprises Corp to offer online banking services and products. By agreeing to the MKG Enterprises Corp Terms of Service and Privacy Policy, you also agree to Stripe Treasury terms and policies below:
- Terms of Service
(the above-listed agreements collectively referred to herein as the “Ancillary Agreements”)
If you open a bank account or purchase any other financial products using the MKG Enterprises Corp Platform Services (“Bank Account”), you agree that the Bank Account is administered by Evolve with MKG Tax Consultants acting as technical intermediary between MKG Enterprises Corp and Evolve, in accordance with your Cardholder Agreement and/or Deposit Agreement. Bank services are provided through our banking software provider, SynapseFI. To report a complaint relating to the bank services, email [email protected].
BY SIGNING THE MKG Enterprises Corp ORDER FORM (EITHER IN DIGITAL OR PAPER FORMAT AND REFERRED TO HEREIN AS THE “ORDER FORM”) OR BY ACCESSING OR USING THE MKG Enterprises Corp PLATFORM AND SERVICES, YOU INDICATE YOUR AGREEMENT WITH THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THEM.
1. AGREEMENT.
1.1. Authority to Bind. If you are entering into this Agreement not as an individual but on behalf of your company, then “You” or “Customer” means your company and you are binding your company to this Agreement. Your acceptance of these terms represents that you have the authority to bind your company to these terms. Where you are entering into this agreement on behalf of a company or other legal entity and your subscription allows for access by authorized employees or contractors, you may accept this Agreement on behalf of all such employees and contractors provided (a) you have authority to do so and to bind each of them to the terms and conditions of this Agreement; (b) you agree to manage access to this Site and to restrict access only to employees and contractors authorized to do so under the terms of your subscription; and (c) you hereby represent and warrant that all employees and contractors granted access to this Site and the Platform Services (as defined below) are aware of these terms and conditions and have agreed to comply fully therewith as a condition of access and use.
1.2. Scope of this Agreement. This Agreement governs your initial subscription or purchase as well as any future purchases made by you that reference this Agreement. This Agreement includes our Privacy Policy, any Order Forms, and other referenced documents. The parties to this Agreement are you and MKG Enterprises Corp. If you are not acting on behalf of yourself as an individual, then “you”, “your” and “yourself”, “Client” or “Customer” means your company or organization and persons authorized by your subscription to access the Platform Services (as defined below). All references to “we”, “us”, or “our” shall be construed to mean MKG Enterprises Corp.
2. LICENSE.
2.1. User License. MKG Enterprises Corp hereby grants to Customer (identified on the Order Form), for internal use by Customer, its authorized agents, contractors, employees and suppliers (collectively, the “Users”) a revocable, non-transferable, non-exclusive, non-sub-licensable right and license (the “License”) to access MKG Enterprises Corp’s financial services software platform (the “Platform Services”) (being software, data and applications of MKG Enterprises Corp to facilitate online banking) during the Term (as outlined on the Order Form). The Platform Services shall be made available on-line at https://mkgtaxconsultants.com (or such other URL as MKG Enterprises Corp may designate from time to time) (the “Site”) from a third party hosted facility, located in the country specified on the Order Form, and/or other systems used by MKG Enterprises Corp to host the Platform Services in the country specified on the Order Form (collectively, the “Systems”). Platform Services may be amended, enhanced or modified from time to time by MKG Enterprises Corp.
2.2. Account. Users shall access the Platform Services by means of a specific account (the “Customer Account”) using individual User login names and passwords (“Passwords”) provided by MKG Enterprises Corp. MKG Enterprises Corp shall enable the Platform Services and provide the Passwords on the Plan Start Date (identified on the Order Form). The Customer is responsible for the confidentiality and use of its Passwords and Customer Account, and in no event shall MKG Enterprises Corp be liable for any loss of information of the Customer or other claims arising from unauthorized access to the Platform Services as a result of the failure by Customer to protect the confidentiality of its Passwords and Customer Account. MKG Enterprises Corp is also responsible for the confidentiality of the Passwords and Customer Account provided to Customer and shall in all events be liable and indemnify Customer for any breach of this provision. Depending on the Customer’s administrative settings, Users may only be able to use certain Platform Services associated with its Account status.
3. USE. The License is granted exclusively for Customer’s internal use, and the Customer is solely and exclusively responsible:
a. For the collection, accuracy, currency, quality, legality, completeness and use of Customer Data (as defined in Section 5.2 below) that is stored on the Systems, disclosed to or used by Customer or Users in connection with the Platform Services;
b. To ensure that the use of the Platform Services by any User is limited to the rights outlined herein; and the Customer shall not permit Users, directly or indirectly, to do (and shall be responsible for any violation of) any of the following acts:
i. Reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Platform Services;
ii. Modify, translate, or create derivative works from the Platform Services;
iii. Rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit the Platform Services;
iv. Publish or disclose to third parties any evaluation of the Platform Services without MKG Enterprises Corp’s prior written consent;
v. Violate any local, state / provincial, federal or foreign law, treaty, regulation or convention applicable to the Customer in connection with Users’ use of the Platform Services;
vi. Access data or log into a server or account on the Systems that the Customer is not authorized to access, or access or tamper with other customer accounts of MKG Enterprises Corp; or
vii. Willfully tamper with the security of, or probe, scan or test the vulnerability of, any of the Systems, or render any part of the Systems unusable.
4. FEES, PAYMENT AND TAXES.
4.1. Fees. Fees for the License and Platform Services (collectively the “Fees”) are based on the plan type selected by the Customer as defined on the Order Form.
4.2. Payment.
a. General. All Fees are quoted in American currency unless otherwise stated on the Order Form and are non-refundable except as may otherwise be provided in this Agreement. The Fees in an Order Form shall be subject to MKG Enterprises Corp’s right to change the Fees at its own discretion, and at any time, upon providing notice to you (a “Fee Change Notice”). Such revised Fees will apply beginning on such dates as indicated in a given Fee Change Notice.
b. Invoicing. When you initiate a transaction, Fees will be invoiced for the corresponding transaction type, as outlined in the Order Form or subsequent Fee Change Notice. Fees shall be automatically deducted from your Bank Account balance upon completion of a given transaction.
c. Insufficient Funds. If there are insufficient funds in your Bank Account to pay process a transaction and pay the corresponding Fees, the transaction will not be completed. You must deposit sufficient funds into your Bank Account to pay for the corresponding Fees to complete the transaction.
d. Taxes. Unless otherwise stated, MKG Enterprises Corp’s Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all applicable Taxes associated with its purchases hereunder. If MKG Enterprises Corp has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
e. Suspension of Service. If Fees on any Customer Account are not paid by the due date, in addition to any other rights and remedies MKG Enterprises Corp may have (including interest owing, and the termination rights set forth herein), MKG Enterprises Corp reserves the right to suspend the Customer Account without liability to MKG Enterprises Corp, until such account is paid in full. “Suspended Account” means that all attempts to make transactions in MKG Enterprises Corp will be blocked and all support will cease until the Customer makes the full payment due and owing, including any interest and other charges accruing during the suspension period. A Suspended Account does not remove the Customer’s obligation to pay those amounts outstanding to the date of such suspension or thereafter for the remainder of the Term, as the case may be.
f. Right of Set Off. We reserve the right to use any funds in the Bank Account associated with the Customer Account(s) to pay any debts or other obligations (including any contingent obligations) you owe us whether in the same or other currency (known as a “Set-Off”). You agree to allow us to use some or all of the money in your Bank Account to buy any currencies that may be necessary to pay debts that you owe us.
5. OWNERSHIP AND CONFIDENTIALITY.
5.1. Intellectual Property. The Customer acknowledges and agrees that the Platform Services, and all intellectual property rights therein (including without limitation, copyrights, patents, trade secrets, trademarks, moral rights and other intellectual property rights, in and to the Platform Services, and all modifications, changes, enhancements, or additions thereto (whether initiated by the Customer or otherwise), and all intellectual property rights relating to the provision of support in respect of the Platform Services (collectively, “MKG Enterprises Corp IP“), are owned or licensed by MKG Enterprises Corp. Except for the License granted hereunder, nothing in this Agreement gives the Customer any right, title or interest in, to or under any of the MKG Enterprises Corp IP, and to the extent the Customer acquires rights in the MKG Enterprises Corp IP, Customer assigns such rights to MKG Enterprises Corp and waives any moral rights it may have in the MKG Enterprises Corp IP to and in favour of MKG Enterprises Corp. All MKG Enterprises Corp IP shall be deemed to be Confidential Information (as defined below), and the Customer shall be bound by all confidentiality provisions.
5.2. Customer Data. “Customer Data” means any data, information or other materials of any nature recorded in any form whatsoever, disclosed or provided to MKG Enterprises Corp by the Customer and by the Users in the course of using the Platform Services, including all information generated by the Users’ use of the Platform Services. The Customer retains all right, title and interest in and to all Customer Data. The Customer Data shall be deemed to be Confidential Information (as defined below) of the Customer, and MKG Enterprises Corp will restrict access to Customer’s Confidential Information to those MKG Enterprises Corp employees, consultants and/or subcontractors who have a need to access the Customer Data in order to provide the Platform Services and support and have agreed to be bound by the confidentiality provisions outlined herein. The Customer agrees that it is solely and exclusively responsible for the collection, accuracy, currency, quality, legality, completeness and use of Customer Data that is stored on the Systems, disclosed to or used by Customer or Users in connection with the Platform Services, and for compliance with all applicable laws and regulations in the appropriate jurisdiction, including without limitation with respect to privacy, non-disclosure and confidentiality.
5.3. MKG Enterprises Corp Access and Use. MKG Enterprises Corp shall have the right, in its sole discretion, to access, use, copy, display, and create derivative works from Customer Data during the Term, for purposes of support, administration, anonymized data aggregation, invoicing and to inspect the Customer’s utilization of the Platform Services so as to ensure Customer’s compliance with the provisions of this Agreement. Any aggregated and anonymized data derived from combining Customer Data with other services data and/or data of other customers (“Aggregated Data”) shall be exclusively owned by MKG Enterprises Corp.
5.4. Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party that is disclosed to the other party pursuant to this Agreement, and includes without limitation all Passwords, Customer Account information, Customer Data, MKG Enterprises Corp IP, and the terms and conditions of this Agreement. Each party agrees to keep all Confidential Information disclosed to it by the other party strictly confidential, in the same manner as it protects the confidentiality of its own information and data (at all times exercising at least a reasonable degree of care in the protection of the Confidential Information). Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of a party, subsequent to disclosure by the other party; or (d) has been otherwise lawfully known or received by a party. This section will not be construed to prohibit the disclosure of Confidential Information if required by law or order of the court or other governmental authority, provided that a party shall give the other party prompt notice of such request, so that the other party has a reasonable time to attempt to limit or prevent such disclosure. Upon termination of this Agreement, all copies of all Confidential Information shall be either returned to the applicable party or destroyed, at the discretion and written direction of the other party.
6. PERSONAL INFORMATION.
6.1. Definition and Permitted Use.
a. For this Agreement, “Personal Information” means any information that MKG Enterprises Corp collects, receives, or obtains, from or on behalf of Customer or any of its Authorized Users that identifies a specific individual or by or from which a specific individual may be identified, such as the individual’s name, address, or social security number, and any other information relating to an identified or identifiable individual. Personal Information includes the information of, or pertaining to, Customer’s personnel, directors, officers, agents, providers, contractors, investors, or customers.
b. MKG Enterprises Corp shall not cause or permit any Personal Information to be processed in any manner or for any purpose other than the performance of the Services in compliance with the restrictions in this Agreement and all applicable laws.
6.2. Ownership and Treatment of Personal Information. As between Customer and MKG Enterprises Corp, Customer is and shall remain the sole and exclusive owner of all right, title, and interest in and to Personal Information. MKG Enterprises Corp shall:
a. Process Personal Information for the sole purpose of performing the Services and in compliance with: (i) this Agreement or as Customer may expressly direct in advance in writing; and (ii) all applicable data protection laws; and
b. Notify Customer in writing if MKG Enterprises Corp becomes aware of any unauthorized access, use or other unauthorized act respecting Personal Information.
6.3. Customer as Controller. Customer agrees that if Customer, or any personal data submitted by Customer to the Platform Services, is subject to the General Data Protection Regulation (“GDPR”), or related laws including related laws of European Union member states: (a) Customer is the data controller of such personal data and MKG Enterprises Corp is a data processor of such data; (b) Customer will enter into a Data Processing Agreement with MKG Enterprises Corp as required by the GDPR; and (c) Customer further represents that Customer has undertaken all requirements to comply with all privacy and data protection laws including but not limited to GDPR. Such requirements may include but are not limited to maintaining adequate records and registration requirements with supervising or other regulatory authorities.
6.4. Legitimate purpose/consent. Customer agrees and represents to MKG Enterprises Corp that all Personal Information Customer collects, provides, or otherwise uses in any way in relation to the MKG Enterprises Corp Service is necessary for Customer’s legitimate interest and is not overridden by fundamental rights of the subject individual, and otherwise that Customer has all rights and obtained all necessary consents to collect, provide, manage, all Personal Information Customer provides to MKG Enterprises Corp for any purpose.
7. ELECTRONIC FUND TRANSFER DISCLOSURE STATEMENT.
The following disclosures are required on behalf of MKG Tax Consultantsand made in accordance with U.S. federal law regarding electronic payments, deposits, transfers of funds and other electronic transfers to and from your account(s). There may be limitations on account activity that restrict your ability to make electronic fund transfers. Any such limits are disclosed in the appropriate agreements governing your account.
7.1. Definitions. For the purposes of this Agreement, (a) an “Electronic Fund Transfer” is any transfer of funds, other than a transaction originated by check, draft or similar paper instrument, that is initiated through an electronic device or computer to instruct us to debit or credit an account. Electronic Fund Transfers include such electronic transactions as direct deposits or withdrawals of funds, transfers initiated via telephone, website or mobile application; and (b) a “Preauthorized Electronic Fund Transfer” is an Electronic Fund Transfer that you have authorized in advance to recur at substantially regular intervals; for example, direct deposits into or withdrawal of funds out of your account.
7.2. Your Liability.
a. Authorized Transfers: You are liable for all Electronic Fund Transfers that you authorize, whether directly or indirectly.
b. Unauthorized Transfers: Tell us at once if you believe your account or PIN or Access Information (as defined below) is lost or stolen or has been or may be subject to unauthorized Electronic Fund Transfers. Contact us immediately to keep your possible losses to a minimum. You could lose all the money in your account(s). If you tell us within two (2) business days after learning of the loss or theft of your account access device, or after learning of any other unauthorized transfers from your account involving your account access device, you can lose no more than $50 if Electronic Fund Transfers are made without your permission. For these transactions, if you DO NOT tell us within two (2) business days after learning of the loss, theft or unauthorized use, and we can establish that we could have prevented the unauthorized transfer(s) if you had told us in time, you could lose as much as $500. Also, if your periodic account statement shows unauthorized transfers and you DO NOT tell us within sixty (60) days after the statement was delivered to you, you may not get back any money you lose after the sixty (60) day period if we can prove that we could have prevented the unauthorized transfer(s) if you had told us in time. If an extenuating circumstance (such as extended travel or hospitalization) prevents you from promptly notifying us of a suspected lost or stolen access device or of any other suspected unauthorized transfer(s), the time periods specified in this Section 7.2 may be extended for a reasonable period.
8. REMOTE DEPOSIT CHECK DISCLOSURE STATEMENT.
8.1. Remote Deposit Capture. Via our remote deposit capture services (“Remote Deposit Capture”) we allow you to make deposits into your Bank Account by using the mobile application to take a legible picture of the front and back of a negotiable check and transmitting such images. We will attempt to collect the item by presenting the image or converting the image into a digital representation of the original check (“Substitute Check”). Unlike traditional check deposits, you retain the original paper check when you use Remote Deposit Capture. We request you to retain the original check for at least thirty (30) days after you submit the check image to us.
8.2. Necessary Endorsement. The checks to be deposited via Remote Deposit Capture shall be properly endorsed in the same manner in which it is made payable to you and with the restrictive endorsement “For mobile deposit only.”
8.3. Cut-Off Time. Your check image must be received by 4:00 pm PST to be considered deposited in such day. Any check image received by us after 4:00 pm PST will be considered as deposited in the following business day.
8.4. Availability. The amount shall be made available in your account no later than two (2) business days after the day you made the remote deposit using Remote Deposit Capture. We may place a hold on your deposited check for a longer period of time if we have reasonable cause to doubt collectability of the check. In case you deposit remotely a check in an amount higher than $200 (two hundred dollars) we will make $200 available to you no later than one (1) business day after the day after the day you made the deposit and the excess amount in no later than two (2) business days.
8.5. Longer Delays. In other circumstances, a longer hold period may apply before funds deposited by check are available in your Bank Account. For example, a longer delay may apply in the following cases: (i) we believe a deposited check will not be paid; (ii) you deposit one or more checks totaling $5,000 or more in one day; (iii) you redeposit a check that has been previously returned unpaid; (iv) your Bank Account had a negative balance anytime in the previous six (6) months; and (v) we experience an emergency, such as failure of communication or computer delays. We can delay the availability of your check if your deposit account was opened 30 days or less from the date you remotely deposited your check. In such cases, we will send you an electronic notice informing if your ability to withdraw funds is delayed for any reason and when your funds may be available. Generally, funds will be available no later than ten (10) business days after the deposit is accepted for processing.
9. WIRE TRANSFERS.
9.1. Security Procedures. All Users are required to use a Two-Factor Authentication control, in addition to their login, to authorize a wire transfer using MKG Enterprises Corp. You agree that Two-Factor Authentication is an appropriate security procedure, designed to verify the authenticity of the order, and not to detect errors in transmission.
9.2. Cutoff Times. All domestic wire requests are subject to a cutoff time of 12:00pm PST and shall be processed on business days only.
9.3. No Cancellation. All wire requests are final and are not subject to recall orders or stop payments.
9.4. Payment Order. Users may only initiate a wire transaction via MKG Tax Consultants website. The User is solely responsible for the accuracy of the information contained in the payment order. The wire transaction will be completed relying exclusively on the information provided by the User.
9.5. Authorization. By initiating any wire transaction via the Platform Services, you authorize Evolve to execute payment orders on your behalf and to debit the account you specify in the payment order for the amount of the wire transfer.
10. LIMITATIONS ON TRANSACTIONS
10.1. Transaction Limits. Your Bank Account is subject to the transaction limits detailed in the Order Form (the “Transaction Limits”). MKG Enterprises Corp reserves the right to amend the Transaction Limits in its sole discretion, and at any time, upon providing notice to you (a “Limit Change Notice”). Such revised Transaction Limits will apply beginning on such dates as indicated in a given Limit Change Notice.
10.2. Fraud and Legal Compliance. MKG Enterprises Corp reserves the right to cancel or suspend transactions due to concerns over fraud or legal compliance.
11. TERM AND TERMINATION.
11.1. Term. The License shall commence on the Plan Start Date (as outlined on the Order Form) and shall continue until terminated in accordance with the provisions of this Agreement.
11.2. Suspension of Service. MKG Enterprises Corp may, at its sole option, and in addition to any other right herein, notify the Customer that it has a Suspended Account effective immediately in the event of any failure to pay Fees as outlined in Section 4.2 above, or a breach of any provisions related to intellectual property or Confidential Information.
11.3. Termination. This Agreement may be terminated as follows upon the occurrence of any of the following events:
a. Immediately by MKG Enterprises Corp, if the Customer fails to make payment of undisputed Fees within 45 days of receiving written notice from MKG Enterprises Corp;
b. Immediately by MKG Enterprises Corp for any reason MKG Enterprises Corp may determine in its sole discretion, and upon whose occurrence MKG Enterprises Corp shall return all funds held in Customer’s Bank Account that are not subject to Set-Off, or lawful court, law enforcement, or governmental order.
c. Immediately by either party, if the other party breaches any of the obligations or provisions of this Agreement (and in the case of Customer, if Customer breaches any obligations under the Ancillary Agreements) and fails to remedy such breach within 30 days of written notice from the party of such default;
d. Immediately on written notice by either party if the other party (i) ceases or threatens to cease to carry on its business, commits an act of bankruptcy, makes an assignment or bulk sale of its assets, or proposes a compromise or arrangement to its creditors, or (ii) is subject to any proceeding that is taken to (A) compromise or make an arrangement with that party’s creditors, (B) obtain an order to assign that party into bankruptcy or winding-up that party, or (C) obtain an order to appoint a receiver over any part of that party’s assets, and in each case, such proceeding is not dismissed within 60 days of such proceeding being initiated; and
e. Immediately on written notice by either party if the other party breaches or threatens to breach any provision of Section 5 of this Agreement.
11.4. Effect of Termination. Upon the effective date of termination, the License and all support shall terminate and:
a. Each of the parties shall deliver or destroy, at the direction of the other party, all Confidential Information of the other party which is in its possession, care or control, provided that the MKG Enterprises Corp, on request by Customer, shall be permitted 10 business days to provide Customer with a backup copy of all Customer Data located on the Platform Services;
b. Customer shall pay to MKG Enterprises Corp all undisputed Fees accrued and owing up to the effective date of termination or MKG Enterprises Corp shall reimburse to Customer all pre-paid Fees on a pro rata basis for that portion of the Term following the effective date of termination; and
c. The provisions dealing with intellectual property, Confidential Information, liability and indemnification of this Agreement shall continue in force following effective termination; and
d. Each of the parties shall have all remedies which are available to it at law or in equity.
12. DISCLAIMERS AND LIMITATIONS OF LIABILITY.
12.1. Disclaimer. There are no warranties or conditions (whether implied or arising by statute or otherwise in law or from a course of dealing or usage of trade) for the Platform Services or support, and MKG Enterprises Corp DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES AND CONDITIONS INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE. MKG Enterprises Corp does not warrant that the functions contained in the Platform Services will meet the Customer’s requirements or that the operation of the Platform Services will be uninterrupted.
12.2. Limitations of Liability. UNLESS PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL MKG Enterprises Corp OR ITS AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, WHETHER OR NOT FORESEEABLE INCLUDING WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF MKG Enterprises Corp FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE. YOU WILL BE RESPONSIBLE FOR ANY LOSS, COST OR LIABILITY (INCLUDING REASONABLE LEGAL CHARGES) INCURRED BY US AS A RESULT OF YOUR FAILURE TO COMPLY WITH THIS AGREEMENT.
13. GENERAL PROVISIONS.
13.1. Entire Agreement. This Agreement, and any amendments or additions thereto from time to time, constitute the entire agreement and set forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersede all prior or other agreements, covenants, arrangements and discussions with respect thereto. In the event of an inconsistency between the terms and conditions of this Agreement and any other document or agreement between the parties with respect to the subject matter hereof, the terms and conditions of this Agreement shall prevail and govern to the extent necessary to remedy such inconsistency.
13.2. Relationship of Customer and MKG Enterprises Corp. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other.
13.3. Export and control restrictions. The Customer acknowledges that this Agreement and the provision of all products hereunder shall be subject to the export control laws and regulations of California as are in force from time to time and the Customer shall comply with all such laws and regulations.
13.4. Non-Exclusivity. Nothing in this Agreement will be construed to prevent MKG Enterprises Corp from marketing, licensing, selling or otherwise providing the Platform Services or Systems, or any aspects of MKG Enterprises Corp or services to any third party. Nothing in this Agreement will be construed to prevent the Customer from obtaining services similar to the Platform Services from a third party.
13.5. Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. The exercise or failure to exercise any remedy shall not preclude the exercise of that remedy at any time. The waiver of any breach hereof or default in any payment shall not be deemed to constitute a waiver of any succeeding breach or default.
13.6. No Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the Customer without first obtaining MKG Enterprises Corp prior written approval. MKG Enterprises Corp may transfer or assign its rights and obligations hereunder without prior written approval of the Customer. This Agreement shall be binding upon and shall inure to the benefit of MKG Enterprises Corp and the Customer and each of their successors and permitted assigns.
13.7. Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Ontario, and all courts competent to hear appeals therefrom.
13.8. Notices. Any notices, demands and other communications hereunder shall be in writing and shall be delivered, sent by electronic transmission, or by mail, registered or certified, return receipt requested, postage prepaid, and addressed to the parties as outlined on the Order Form. All notices shall be effective and deemed to be delivered (a) if mailed, on the fifth business day following such mailing, unless there is an interruption in the mail, in which case it shall be deemed to have been given when received; or (b) if delivered or sent by facsimile, on the business day following the date of dispatch or the date of transmission, as the case may be. Either party may change the address for notice by giving written notice of such change to the other party in the manner provided in this Section.
13.9. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
13.10. Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
13.11. English Language. It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que tous les documents y afférents soient rédigés en anglais.
