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SUBSCRIPTION AND SERVICES AGREEMENT
This subscription and services agreement (the “Agreement”), the relevant terms of the Documentation, and any executed Orders and/or SOWs between the parties, are incorporated herein and shall govern the provision of the Services. Customer and its Affiliates may place orders under this Agreement by submitting separate Order(s) and SOW(s). This Agreement shall commence on the Effective Date of Customer’s first executed Order or SOW (“Effective Date”) and will continue until otherwise terminated in accordance with Section 12 below.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Ancillary Programs” means certain enabling software or tools, which Miura Development makes available to Customer for download as part of the Subscription Services for purposes of facilitating Customer access to, operation of, and/or use with the Subscription Services.
“Authorized Contractors” means independent contractors, licensors, or subcontractors.
"Customer Data" means all data, records, files, images, graphics, audio, video, photographs, reports, forms and other content and material, in any format, that are submitted, stored, posted, displayed, transmitted, or otherwise used by or for Customer to the Subscription Services.
“Data Center Region” refers to the geographic region in which the Customer Data is housed.
“Deliverable” means any work product, deliverables, programs, interfaces, modifications, configurations, reports, or documentation developed or delivered in the performance of Professional Services.
“Documentation” means Miura Development ’s product guides and other end user documentation for the Subscription Services and Ancillary Programs available online as a product or through the Subscription Services, as may be updated by Miura Development from time to reflect the then-current Subscription Services.
“Order” or “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Miura Development and Customer from time to time, including any supplements thereto. Customer Affiliates may purchase Services subject to this Agreement by executing Orders hereunder.
“Professional Services” means fee-based migration, implementation, training or consulting services that Miura Development performs as described in an Order.
"Services" means the Subscription Services and Professional Services that Customer may purchase under an Order.
“Subscription Services” means the cloud platform made available by Miura Development to Customer, the software made available by Miura Development to Customer online via the applicable customer logins and/or associated Support Services, as ordered by Customer under an Order, as applicable.
“Support Services” means the level of support services purchased by Customer pursuant to an Order.
“Subscription Term” means the term of Subscription Services purchased by Customer which shall commence on the start date specified in the applicable Order and continue for the subscription term specified therein and any renewals thereto.
"Third Party Marketplace" means any non-Miura Development products or services made available as an accommodation through Miura Development ’s website, which are subject to change during the Subscription Term.
2. SUBSCRIPTION SERVICES
2.1. Provision of Subscription Services.
Miura Development will make the Subscription Services available to Customer pursuant to this Agreement, the
Documentation, and the relevant Order Form during the Subscription Term, solely for Customer’s internal business
purposes. Miura Development ’s Affiliates and its Authorized Contractors may perform certain aspects of the Services
and access Customer Data and Customer Applications provided that Miura Development remain fully liable for same
and responsible for ensuring that any of Miura Development ’s obligations under this Agreement performed by its
Affiliates and its Authorized Contractors are carried out in accordance with this Agreement.
Customer’s Affiliates and its Authorized Contractors may access certain aspects of the Services hosted or provided
through such Services provided that Customer remain fully liable for same and responsible for ensuring that any of
Customer’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out
in accordance with this Agreement. Customer's use of the Subscription Services includes the right to access all
functionality available in the Subscription Services during the Subscription Term. So long as Miura Development does
not materially degrade the functionality, as described in the Documentation, of the Subscription Services during the
applicable Subscription Term
(i) Miura Development may modify the systems and environment used to provide the Subscription Services to
reflect changes in technology, industry practices and patterns of system use, and
(ii) update the Documentation accordingly. Subsequent updates,upgrades, enhancements to the Subscription
Services made generally available to all subscribing customers will be made available to Customer at no
additional charge, but the purchase of Subscription Services is not contingent on the delivery of any future
functionality or features. New features, functionality or enhancements to the Subscription Services may be
marketed separately by Miura Development and may require the payment of additional fees. Miura Development
will determine, in its sole discretion, whether access to such new features, functionality or enhancements will
require an additional fee.
2.2. Third Party Marketplace.
As part of the Subscription Services, Miura Development may provide access to the Third Party Marketplace solely as
an accommodation to Customer. Customer may choose to use any, all or none of the offerings on such Third Party
Marketplace at its sole discretion. Customer’s use of any offering on the Third Party Marketplace is subject to the
applicable provider’s terms and conditions and any such terms and conditions associated with such use are solely
between Customer and such third party provider. Miura Development does not provide any Support Services for Third
Party Marketplace products and services.
2.3 Ancillary Programs.
As part of the Subscription Services, Miura Development may provide Customer with access to download certain
Ancillary Programs for use with the Subscription Services. Miura Development grants Customer during the Subscription
Term a non-exclusive, non-transferable non-assignable, limited licensed to use such Ancillary Programs in object code
(machine readable) format only on each site hosted by Miura Development under an Order or for Subscription Service
to facilitate Customer access to, operation of, and/or use of the Subscription Services subject to the terms of this
Agreement. Ancillary Programs shall only be used to upload, download and synchronize files between Customer’s
computer or other Customer owned or controlled devices and the Subscription Services.
3. DATA PRIVACY
3.1. Security and Internal Controls.
access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement.
3.2. Data Privacy.
discretion; however, Miura Development policy changes will not result in a material reduction in the level of protection
provided for Customer Data during the Subscription Term. Except with respect to Trial Services, the terms of the Miura
Development GDPR Data Processing Addendum (“DPA”) are hereby incorporated by reference and shall apply to the
extent Customer Data includes Personal Data, as defined in the DPA. To the extent Customer’s use of the Subscription
Services includes the processing of Customer Data by Miura Development that are subject to the General Data
Protection Regulation (EU) 2016/679 or the UK GDPR, as defined in the Data Protection, Privacy and Electronic
Communications (Amendments etc) (EU Exit) Regulations 2019 (jointly “GDPR”), such data processing by Miura
Development as data processor complies with the requirements of the aforementioned regulation and any Personal Data
transfer out of the European Union, the European Economic Area, the United Kingdom, and Switzerland shall be
governed by the Standard Contractual Clauses as attached to the DPA, unless the Customer has opted out of those
clauses. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data
exporter, and Customer's acceptance of this Agreement, and an applicable Affiliate's execution of an Order Form, shall
be treated as its execution of the Standard Contractual Clauses and Appendices. Miura Development shall process
personal data and personal information on behalf of and in accordance with Customer’s instructions consistent with this
Agreement and as necessary to provide the Subscription Services and will reasonably cooperate with Customer in its
efforts to respond to requests by data subjects to exercise their rights under the GDPR and to otherwise comply with the
3.3. Compliance with Law.
Miura Development will comply with all laws applicable to the provision of the Subscription Services, including
applicable security breach notification laws, but not including any laws applicable to the Customer’s industry that is not
generally applicable to information technology services providers.
4. CUSTOMER OBLIGATIONS
(i) access and use the Services in accordance with this Agreement, applicable laws and government
(ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Miura
Development promptly of any such unauthorized access or use, and
(iii) take commercially reasonable steps necessary to ensure the security and compliance of the Customer
4.2. Customer Data.
Customer has and shall maintain all rights as are required to allow Miura Development to provide the Subscription
Services to Customer as set forth in this Agreement, including without limitation to send the Customer Data to Miura
Development pursuant to this Agreement and to allow Miura Development to access, use, and store Customer Data to
provide the Subscription Services pursuant to this Agreement. Customer is responsible for its legal and regulatory
compliance in its use of any Subscription Services and shall make Miura Development aware of any Customer Data
processed, stored, or transmitted through the Subscription Services for which regulations apply. If, in the course of
providing Subscription Services, Miura Development agrees in writing to process such Customer Data and Customer
has subscribed to any applicable Subscription Services, Miura Development shall process it only as permitted under this
Agreement and in compliance with data protection legislation to which Miura Development is subject as a service
Customer shall not
(i) license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Subscription
Services or Ancillary Programs),
(ii) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain
the security of the Subscription Services,
(iii) copy, create a derivative work of reverse engineer, reverse assemble, disassemble, or decompile the
Subscription Services, Ancillary Programs, or any part thereof or otherwise attempt to discover any source code or
modify the Subscription Services or the Ancillary Programs),
(iv) create a competitive offering based on the Subscription Services, and
(v) disclose any benchmark or performance tests of the Subscription Services.
5. PROFESSIONAL SERVICES
5.1. Standard Professional Services.
A description of Miura Development ’s standard Professional Services offerings, including training, and workshops, may
be found in the Documentation. Standard Professional Services may also be identified in an Order.
6. PROPRIETARY RIGHTS
6.1. Subscription Services.
Except for the rights expressly granted under this Agreement, Miura Development and its licensors retain all right, title
and interest in and to the Subscription Services and Documentation, including all related intellectual property rights
therein. Miura Development reserves all rights in and to the Subscription Services and Documentation not expressly
granted to Customer under this Agreement. Customer will not delete or in any manner alter the copyright, trademark,
and other proprietary notices of Miura Development.
6.2 Ancillary Programs, Third Party Software. The Subscription Services (including Ancillary Programs) may interoperate
with certain software products, including open-source software, owned by third parties and licensed directly to the
Customer by such third party (“Third Party Software”). Such Third Party Software is provided to the Customer without
liability or obligation by Miura Development and is governed by a license agreement directly between the Customer
and the respective owner of the Third Party Software.
7.1. Definition of Confidential Information.
"Confidential Information" means all confidential or proprietary information of a party ("Disclosing Party") disclosed to
the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or reasonably should
be understood to be confidential given the nature of information and the circumstances of disclosure. Without limiting
the coverage of these confidentiality obligations, the parties acknowledge and agree that Confidential Information of
each party shall include the terms and conditions of this Agreement, related benchmark or similar test results, other
technology and technical information, security information, security audit reports, and business and marketing plans,
except that Miura Development may reference and use Customer’s name, logos and the nature of the Services provided
hereunder in Miura Development ’s business development and marketing efforts.
Confidential Information shall not include information that
(i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party,
(ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of
any obligation owed to the Disclosing Party,
(iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without
breach of any obligation owed to Disclosing Party, or
(iv) is independently developed by Receiving Party without reference to or use of the Disclosing Party’s Confidential
7.3. Protection of Confidential Information.
The Receiving Party shall use the same degree of care used to protect the confidentiality of its own Confidential
Information of like kind (but in no event less than reasonable care), and, except with Disclosing Party’s written consent,
(i) not use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement and
(ii) limit access to Confidential Information of Disclosing Party to those of its and its Authorized Contractors,
Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement
and who have a duty or obligation of confidentiality no less stringent than that set forth herein.
7.4. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable
law, regulation or legal process, provided that the Receiving Party
(i) provides prompt written notice to the extent legally permitted,
(ii) provides reasonable assistance, at Disclosing Party's cost, in the event the Disclosing Party wishes to oppose the
(iii) limits disclosure to that required by law, regulation or legal process.
8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
8.1. Miura Development Representations & Warranties.
Miura Development represents and warrants that
(i) Miura Development has the legal authority to enter into this Agreement,
(ii) the Subscription Services will materially conform with the relevant Documentation,
(iii) the functionality and security of the Subscription Services will not be materially decreased during a Subscription
(iv) Professional Services will be performed in a competent and workmanlike manner consistent with generally
accepted industry standards.
For any failure of any Subscription Services or Professional Services, as applicable, to conform to their respective
warranties, Miura Development ’s liability and Customer’s sole and exclusive remedy shall be for Miura Development, in
the case of a breach of the warranty set forth in Section 9.1 (ii), (iii), and/or (iv), to use commercially reasonable efforts
to correct such failure; or, in the case of a breach of the warranty set forth in Section 9.1 (iv) to re-perform the affected
Professional Services. If the foregoing remedies are not commercially practicable, Miura Development may, in its sole
discretion, terminate the applicable Order upon providing Customer with written notice thereof, and, as Customer’s sole
and exclusive remedy, refund to Customer
(a) in the case of breach of the warranty set forth in Section 9.1(ii) or (iii), any Subscription Services fees paid by
Customer with respect to the unexpired portion of the current Subscription Term for the non-conforming
Subscription Services; or
(b) in the case of breach of the warranty set forth in Section 9.1(iv), any fees paid by Customer for the portion of
Professional Services giving rise to the breach.
8.3. Customer Representations & Warranties.
Customer represents and warrants that
(i) it has the legal authority to enter into this Agreement, and
(ii) it will use the Services in accordance with the terms and conditions set forth in this Agreement and in compliance
with all applicable laws, rules and regulations.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, MIURA DEVELOPMENT MAKES NO WARRANTIES OF ANY KIND,
WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, AND MIURA DEVELOPMENT HEREBY
DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY
WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY OR FUNCTIONALITY OF THE SERVICES
OR THAT THE SERVICES ARE OR WILL BE ERROR FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Miura Development.
Miura Development shall indemnify, defend and hold Customer harmless from and against any judgments, settlements,
costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit, or
proceeding made or brought against Customer by a third party alleging that the use of the Subscription Services
hereunder infringes or misappropriates the valid intellectual property rights of a third party (a "Claim Against Customer");
provided that Customer
(a) promptly gives Miura Development written notice of the Claim Against Customer;
(b) gives Miura Development sole control of the defense and settlement of the Claim Against Customer (provided
that Miura Development may not settle any Claim Against Customer unless the settlement unconditionally releases
Customer of all liability); and
(c) provides to Miura Development all reasonable assistance, at Miura Development ’s
expense. In the event of a Claim Against Customer, or if Miura Development reasonably believes the
Subscription Services may infringe or misappropriate, Miura Development may in Miura Development ’s sole
discretion and at no cost to Customer
(i) modify the Subscription Services so that they no longer infringe or misappropriate, without breaching Miura
Development ’s warranties hereunder,
(ii) obtain a license for Customer’s continued use of Subscription Services in accordance with this Agreement,
(iii) terminate Customer’s subscriptions for such Subscription Services and refund to Customer any prepaid fees
covering the remainder of the term of such subscriptions after the effective date of termination.
Notwithstanding the foregoing, Miura Development shall have no obligation to indemnify, defend, or
hold Customer harmless from any Claim Against Customer to the extent it arises from
(i) Customer Data Applications,
(ii) use by Customer after notice by Miura Development to discontinue use
of all or a portion of the Subscription Services,
(iii) use of Services by Customer in combination with equipment or software not supplied by Miura
Development where the Service itself would not be infringing,
(iv) or Customer’s breach of this Agreement.
9.2. Indemnification by Customer.
Customer shall indemnify, defend and hold Miura Development harmless from and against any judgments, settlements,
costs and fees reasonably incurred (including reasonable attorney’s fees) resulting from any claim, demand, suit or
proceeding made or brought against Miura Development by a third party alleging that Customer Data or Customer
Application violates applicable law or a third party’s rights (a "Claim Against Miura Development "); provided that Miura
(a) promptly gives Customer written notice of the Claim Against Miura Development ;
(b) gives Customer sole control of the defense and settlement of the Claim Against Miura Development (provided
that Customer may not settle any Claim Against Miura Development unless the settlement unconditionally releases
Miura Development of all liability); and
(c) provides to Customer all reasonable assistance, at Customer’s expense.
9.3. Exclusive Remedy.
This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the
other party for any type of claim described in this Section.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability.
EXCEPT FOR (I) EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 10 (MUTUAL INDEMNIFICATION), (II)
INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, INCLUDING
TRADE SECRETS, (III) DAMAGES FOR BODILY INJURY, DEATH, DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY;
OR (IV) ANY OTHER LIABILITY THAT MAY NOT BE LIMITED UNDER APPLICABLE LAW (THE “EXCLUDED MATTERS”), IN
NO EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY RELATING TO THIS AGREEMENT (WHETHER IN
CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNT PAID OR PAYABLE BY
CUSTOMER FOR THOSE SERVICES GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE ORDER FORM AND/OR
SOW IN THE 12 MONTHS PRECEDING THE APPLICABLE INCIDENT.
10.2. Exclusion of Consequential and Related Damages.
EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY
FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER
OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF
LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. TERM AND TERMINATION
11.1. Term of Agreement.
This Agreement commences on the Effective Date and continues until otherwise terminated, by written agreement of the
parties, in accordance with Section 12.3 or upon the expiration of the last Subscription Term or renewal thereof.
11.2. Renewal of Subscription Services.
Except as otherwise specified in the applicable Order, the Subscription Services shall automatically renew for successive
monthly periods, unless and until terminated by either party in accordance herewith or unless either party provides written
notice of non renewal to the other party at least thirty (30) days prior to the end of the then-current Subscription Term.
Miura Development may increase pricing applicable to the renewal of any then-current Subscription Term by providing
Customer with notice thereof, including by email, at least thirty (30) days prior to the end of such term.
A party may terminate this Agreement (or, at such party’s option, the individual Order Forms or SOWs affected by the
applicable breach), for cause
(i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the
expiration of such same 30 day period, or
(ii) automatically if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to
insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon termination of an Order or
SOW for cause by Customer and upon Customer’s written request, Miura Development shall refund, on a pro
rata basis, any fees paid thereunder that cover the remainder of the applicable Subscription Term after the
effective date of termination. Upon termination of an Order or SOW for cause by Miura Development , all
amounts owed by Customer thereunder shall become due and payable. In no event shall any termination relieve
Customer of the obligation to pay all fees payable to Miura Development for the period prior to the effective
date of termination. Upon termination of an Order Form or this Agreement for any reason, Customer’s right to
access and use the Subscription Services (including any Ancillary Programs) terminates. Upon such termination,
(a) immediately destroy all copies of the Ancillary Programs, and
(b) immediately and, upon Miura Development's request, provide Miura Development with written certification of
Section 7 (Proprietary Rights), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of
Liability), 12.4 (Refund upon Termination), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) and
any other rights and obligations of the parties hereunder that by their nature are reasonably intended to survive
termination or expiration, shall survive any termination or expiration of this Agreement.
11.5. Governing Law and Jurisdiction.
If Customer is entering into this Agreement then this Agreement is governed by the laws of England and subject to the
exclusive jurisdiction of the courts of England and Wales. Each party consents to the jurisdiction of such court in any such
civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal
proceeding in such court. Notwithstanding the foregoing, the parties acknowledge that any unauthorized disclosure of
Confidential Information or any actual or alleged infringement of such party’s or third party’s intellectual property rights
might cause the other party to suffer irreparable harm for which damages would be an inadequate remedy and that, in
such event, the aggrieved party may seek, in addition to any other available remedies, injunctive and other equitable
12. GENERAL PROVISIONS
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from
any of the other party’s employees or agents in connection with this Agreement. If a party learns of any violation of the
above restriction, such party will use reasonable efforts to promptly notify the other party.
12.2. Subscription Service Analyses.
Miura Development may
(i) compile statistical and other information related to the performance, operation and use of the Subscription
(ii) use, and share data from the Subscription Services environment in aggregated form for security and operations
management, to create statistical analyses, and for research and development purposes (clauses i and ii are
collectively referred to as ‘Subscription Service Analyses”). Subscription Service Analyses will not incorporate any
information, including Customer Data, in a form that could serve to identify Customer or an individual. Miura
Development retains all intellectual property rights in Subscription Service Analyses.
Customer agrees that during the term of each Order Form and/or SOW and for twelve (12) months thereafter, it will not
recruit or otherwise solicit for employment any person employed by Miura Development who participated in the
performance of Services under the applicable Order Form and/or SOW. Nothing in this clause shall be construed to
prohibit individual Miura Development employees from responding to public employment advertisements, postings or job
fairs of Customer, provided such response is not prompted by Customer intentionally circumventing the restrictions of this
12.4. No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
12.5. Public Relations.
Customer agrees that Miura Development may identify Customer as an Miura Development customer in advertising,
media relations, trade shows, the website, and other similar promotional activities, using Customer’s name and
trademarks in accordance with Customer’s trademark guidelines.Customer shall also assist Miura Development in
preparing a press release announcing Customer as a new Miura Development Customer, with the view to publishing
within 60 days following the Effective Date and in preparing a case study for external use that details Customer’s use of
the Services within 6 months following the Effective Date. Miura Development shall not publish such press release or
case study without Customer’s prior, written approval as to its contents.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver
of that right.
12.7. Force Majeure.
Neither party shall be liable under this Agreement for delays or failures to perform the Services or this Agreement due to
causes beyond its reasonable control. Such delays include, but are not limited to, fire, natural catastrophe, government
legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence
of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable
control of the delayed party. The delayed party shall use its best efforts to minimize the delays
caused by any such event beyond its reasonable control. If the force majeure event continues for more than thirty (30)
calendar days, then either party may terminate the Agreement upon written notice to the other party.
12.8. Entire Agreement.
This Agreement constitutes the entire agreement between the parties as it relates to the subject matter and supersedes all
prior and contemporaneous agreements, proposals, or representations, written or oral, concerning or relating to the
same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement
shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the
provisions of this Agreement, the Documentation, any Order Form or SOW, the terms of such Order Form or SOW shall
prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a PO, payment system,
other order documentation or otherwise (excluding Order Forms and/or SOWs) shall be incorporated into or form any
part of this Agreement, and all terms or conditions shall be null and void
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