TERMS & CONDITIONS
MODULAR MOBILIZATION CO.
MMC PROJECT LEAD SHARING NON-CIRCUMVENTION AND NON-DISCLOSURE
UPDATED JULY 11TH, 2021
This non-circumvention and non-disclosure agreement (the “Agreement”) is made and entered into by and between, MODULAR MOBILIZATION CO. (“MMC”), with its principal place of business at 1521 Concord Pike, Ste. 301, Wilmington, DE 19803, and you (“You” and “Your”). As of the date, you accept this Agreement as provided in this preamble. PLEASE READ THIS AGREEMENT CAREFULLY, BY ACCESSING OR USING MMC’S WEBSITE (THE “WEBSITE”), CLICKING ON THE “I ACCEPT” BUTTON, OR ACCEPTING INFORMATION PERTAINING TO THIS BUSINESS SOURCE PROVIDED TO YOU VIA THE MMC WEBSITE YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH MMC, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THIS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT PARTICIPATE IN MMC’S PROJECT LEAD SHARING PROGRAM AS DESCRIBED BELOW.
MODIFICATIONS
Please note that MMC may modify these terms and conditions at any time, and such modifications shall be effective immediately upon posting of the modified version on the Website for Business Sources (defined below) received after such modifications have been posted. MMC will also update the “Last Updated” date at the top of this Agreement. If MMC makes any material changes, and You have registered with MMC to create an Account (as defined below), MMC may also send You an email to the last email address You provided pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new participants in the Program (as defined below) and will be effective thirty (30) days after posting or providing notice of such changes on the Website for existing users (whichever is earlier). MMC may require You to provide consent to the updated Agreement in a specified manner before further use of the Website and/or participation in the Program is permitted. If You do not agree to any change(s) after receiving a notice of such change(s), You shall stop using the Website and/or participating in the Program. Otherwise, Your continued use of the Website and/or participation in the Program shall be deemed Your conclusive acceptance of the modified terms and conditions.
DEFINITION
PROJECT LEAD SHARING PROGRAM (the “Program”). MMC hosts and maintains an online platform available at the Website that enables MMC to share potential modular project lead information (each, a “Business Source”) with MMC’s Manufacturing Partners (each, a “Manufacturer”). As a participant in the Program, You will have a right to receive Business Sources from MMC, for the potential to manufacture defined scopes of work (the “Potential Transactions”) pertaining to said Business Source. To execute a Potential Transaction, You are required to provide MMC with a ‘Rough Order of Magnitude’ estimate (the ROM) and delineated scope of work to be performed (the “Scope”).
ROUGH ORDER OF MAGNITUDE ESTIMATE (the “ROM”). The ROM will be a non-binding price generated by the Manufacturer and provided to the Business Source by MMC in order to help the Business Source identify and select a Manufacturer. Upon Manufacturer selection by the Business Source and MMC, the Manufacturer will provide a final estimated proposal to the Business Source (the “Quote”), prior to entering into a contract with the respective Business Source.
PROGRAM REGISTRATION. In order to participate in the Program, You may be required to register for an account on the Website (“Account”). In registering for the Program, You agree to (1) provide true, accurate, current, and complete information about Yourself and Your manufacturing capabilities as prompted by the Websites’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under Your Account. You may not share Your Account or password with anyone, and You agree to (x) notify MMC immediately of any unauthorized use of Your password or any other breach of security; and (y) exit from Your Account at the end of each session. If You provide any information that is untrue, inaccurate, not current or incomplete, or MMC has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, MMC has the right to suspend or terminate Your Account and refuse any and all current or future use of the Website and Program (or any portion thereof).
NO EXPECTATION OF POTENTIAL TRANSACTION.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RECEIVED ANY ASSURANCE THAT YOU WILL OBTAIN ANY PARTICULAR NUMBER OF POTENTIAL TRANSACTIONS AS A RESULT OF THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM. MMC WILL INCUR NO LIABILITY WHATSOEVER FOR ANY DAMAGES, LOSSES OR EXPENSES OF ANY KIND SUFFERED OR INCURRED BY YOU ARISING FROM OR INCIDENT TO YOUR PARTICIPATION IN THE PROGRAM, OR ANY TERMINATION OF THIS AGREEMENT BY MMC, WHETHER MMC IS AWARE OF SUCH DAMAGES, LOSSES OR EXPENSES.
NON-DISCLOSURE: MMC agrees to disclose information relating to the Business Sources (the “Confidential Information”). Confidential Information includes, without limitation, all trade secrets, business methods, know-how, inventions, and other financial, business or technical information. Confidential Information may be in writing, oral, visual, or in other tangible, or intangible, form. Confidential Information shall be marked, or otherwise identified, as confidential or proprietary, or consist of information which reasonably should be considered as confidential or proprietary from its nature or from the circumstances surrounding its creation or disclosure. MMC IS PROVIDING CONFIDENTIAL INFORMATION ON AN “AS IS” BASIS FOR USE BY THE MANUFACTURER AT ITS OWN RISK. MMC DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THAT THE INFORMATION IS ACCURATE AND COMPLETE. ANY WARRANTY WILL ONLY BE AS AGREED IN A SUBSEQUENT WRITTEN AGREEMENT BETWEEN THE PARTIES.
Manufacturer agrees not to disclose, reveal or make use of any Confidential Information of MMC during discussion or observation regarding methods, concepts, ideas, product/services, business models, or proposed business plan or services, nor to do business with any of the revealed contacts without the prior written consent of MMC.
NON-CIRCUMVENTION: Neither the Manufacturer nor any of its Affiliates shall, in any manner access, contact, solicit, or conduct any business with a Business Source that has been made available by and through the MMC. “Affiliate” as used herein is any entity which directly or indirectly controls, is controlled by, or is under common control with the Manufacturer. The Manufacturer shall not in any way whatsoever circumvent or attempt to circumvent MMC and shall not enter into direct or indirect offers, negotiations or transactions with a Business Source revealed by MMC.
COMMUNICATION WITH BUSINESS SOURCES: Manufacturer shall not deal directly with such referred person or company without the prior written consent of MMC. Manufacturer agrees that any introduction by MMC to any Business Sources, with respect to any project, or confidential information necessary to any transaction, including the Transactions (collectively referred to as a “Potential Transaction”), and no such Potential Transaction shall be concluded without the involvement of MMC, unless MMC expressly waives its specific involvement in writing. Manufacturer further agrees that it shall keep MMC informed with respect to the status of the negotiations of any Potential Transaction, and unless MMC expressly waives its specific involvement in writing, MMC shall be invited to all meetings, included in all conference calls and copied on all correspondence and email.
RELATIONSHIP TO MMC: Manufacturer agrees that any introduction by MMC to any Business Sources, shall entitle MMC to compensation in the event of a Potential Transaction; unless and until an agreement outlining the terms and conditions of the compensation payable to MMC has been executed in good faith, the Potential Transaction shall not conclude. Compensation shall be negotiated separately and through a subsequent agreement by the Manufacturer and MMC. Both parties agree that any Potential Transaction between the Manufacturer and MMC will not be conducted without prior agreement of MMC’s compensation for such Potential Transactions.
NOTICES: All notices, requests, consents, and other communications hereunder shall be in writing and shall be delivered in person or by registered or certified mail, return receipt requested, postage and fees prepaid, or by overnight courier, receipt signature required, or by telecopier transmission, with verification of the transmission received by the sender, to the parties as set forth below or at such other place as either party may, by written notice to the other, direct:
If to MMC:
Modular Mobilization Co.
1521 Concord Pike, Ste. 301,
Wilmington, DE 19803
Attn: Colby Swanson
Email: Cswanson@mmc-us.org
DISCLAIMERS
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE IS PROVIDED “AS IS,” AND MMC MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE WEBSITE (IN WHOLE OR IN PART) OR ANY OTHER SERVICES PROVIDED TO YOU BY MMC. MMC DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE WEBSITE SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNIFICATION
You will indemnify, defend, and hold harmless MMC, its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, the “MMC Parties”) against any and all costs, expenses (including reasonable attorneys’ fees), losses, damages, claims, liabilities, demands, penalties, forfeitures, suits and judgments, which the MMC Parties may hereafter incur, become responsible for or pay, as a result of (a) Your breach or other violation of this Agreement; (b) Your negligent or willful acts, errors or omissions; or (c) any death or bodily injury to any person, destruction or damage to any property. MMC reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with MMC in asserting any available defenses. You agree that the provisions in this section will survive any termination of Your Account, this Agreement, or Your access to the MMC Website.
GOVERNING LAW: This Agreement shall be governed by and construed under and in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its choice of law provisions. Each party hereby (i) submits to the exclusive jurisdiction of any state or federal court sitting in Philadelphia County with respect to any action brought to enforce or interpret this agreement, (ii) waives any claim of an inconvenient forum regarding any such court, and (iii) agrees that a final judgment or order in any such proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
AMENDMENTS: This Agreement may only be amended, supplemented, or otherwise altered with the express written consent of all parties hereto.
ENTIRE AGREEMENT: This Agreement represents the entire agreement between the Parties hereto, and supersedes all prior communications and agreements, concerning its subject matter. Unless otherwise mutually agreed to in writing by the Parties, this Agreement shall not supersede, terminate or cancel any non-circumvention agreement currently in effect between the Parties made prior to the Effective Date of this Agreement. This Agreement shall be binding on the Parties and their successors and assigns.