Videonor

Videonor Master Services Agreement

THIS MASTER SERVICES AGREEMENT (“AGREEMENT“) GOVERNS USE OF THE VIDEONOR SERVICES AND ASSOCIATED SOFTWARE. PLEASE REVIEW CAREFULLY. BY CLICKING “I AGREE”, OR PURCHASING OR USING THE VIDEONOR SERVICES, YOU (“CUSTOMER”) ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS OR A GOVERNMENT AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED THE AGREEMENT OF THAT ENTITY. IN THAT EVENT, “YOU” AND “YOUR” REFER HEREIN TO THAT ENTITY. THE VIDEONOR SERVICES AND SOFTWARE ARE LICENSED AND NOT SOLD TO YOU. VIDEONOR, INC. (“VIDEONOR”) PERMITS YOU TO ACCESS AND USE THE VIDEONOR SERVICES AND SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT AND THE APPLICABLE ORDER FORM(S). IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE VIDEONOR SERVICES OR SOFTWARE IN ANY MANNER.

  1. Definitions.

 

1.1            “Acceptable Use Policy” means Videonor’s acceptable use policy located at http://www.videonor.com/newcustomerterms as may be updated from time to time by Videonor following thirty (30) days notice in order to comply with applicable law and industry standards. The terms of the Acceptable Use Policy are incorporated herein by this reference.

 

1.2            “Content” means any data, packets, information, communications or other materials transmitted, uploaded, transferred, downloaded, recorded or otherwise made available or existing in conjunction with Customer’s use of the Services, whether introduced by Customer, a User or any participant in a conference using the Services, including without limitation any and all documents, articles, transcripts, audio clips, caricatures, computer programs, designs, icons, illustrations, images, multimedia, photographs, sounds, text, video clips, Personal Information, identities and likenesses of individuals, recordings, and any other spoken, written or electronic expressions or works. Content may include personal information of individuals.

 

1.3            “Documentation” means user guides and other end user documentation for the Services and Software provided by Videonor, as updated by Videonor from time to time.

 

1.4            “Equipment” means all equipment and third party services, not provided by Videonor, that are required in order to enable Customer and its Users to access and use the Services, including Internet and telephone service video-enabled devices, video communication services, modems, hardware, servers, software, and web servers. All Equipment shall be obtained and maintained by Customer at Customer’s own expense.

 

1.5            “Order Form” means the ordering document, in a format specified by Videonor, signed by both parties, pursuant to which Customer shall place orders for the Services to be provided by Videonor under this Agreement. Order Forms shall include, without limitation, the Services ordered, capacity licensed (i.e. the number of Users, etc.), pricing, billing information, and the Term of the subscriptions purchased. Order Forms shall be subject to and incorporate by reference the terms of this Agreement.

 

1.6            “Privacy Policy” means Videonor’s privacy policy located at http://www.videonor.com/newcustomer/terms  as may be updated from time to time by Videonor following thirty (30) days notice. The terms of the Privacy Policy are incorporated herein by this reference

 

1.7            “Services” means the on-line communications services provided to Customer by Videonor, as specified on an Order Form.

 

1.8            “Software” means the software applications made available for download by Videonor for use with the Services, as well as any modifications, improvements, patches, fixes, updates and upgrades thereto.

 

1.9            “Support” means technical support services provided by Videonor in connection with the Services.

 

1.10          “Term” means the subscription period identified on an Order Form, or on a renewal document, during which Customer’s Users are authorized to access and use the Services pursuant to the terms set forth in this Agreement, subject to Section 11 below.

 

1.11          “Users” means individuals who are authorized by Customer to use the Services, for whom a subscription to the Service has been procured by Customer. Users may include but are not limited to Customer’s and Customer’s affiliates’ employees, consultants, clients, external users, contractors and agents. Customer may reassign User subscriptions from time to time to new Users who replace former Users who no longer use or need access to the Services. Customer, however, may not allow more than one individual to use or otherwise share a single User subscription.

 

  1. Provision of Services and Support.

 

2.1            Access Rights. Subject to compliance with the provisions of this Agreement and the applicable Order Form, Videonor grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term to allow its Users to access and use the Services in accordance with the Documentation and Acceptable Use Policy, solely for Customer’s business purposes.  Customer’s rights to access the Services will be limited to those expressly granted in this Section 2, and Videonor reserves all other rights, title, and interest therein.

 

2.2            Software License. Subject to compliance with the provisions of this Agreement and the applicable Order Form, Videonor grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable license during the Term to download, install and use (and allow its Users to download, install and use) the Software, solely in conjunction with authorized use of the Services as set forth in Section 2.1 above. Customer’s rights in the Software will be limited to those expressly granted in this Section 2, and Videonor reserves all other rights, title, and interest therein.

 

2.3            Customer Responsibilities; Legal Compliance. Customer shall be responsible for any non-compliance with this Agreement by its Users. Customer shall be responsible for maintaining the security of its User’s logins and passwords, Equipment and files, and for all activities conducted under its and its Users’ logins on the Services. Customer and its Users shall use the Services and Software in compliance with the Acceptable Use Policy and all applicable federal, state, local and international laws, including, without limitation, all applicable export restrictions, laws or regulations of any U.S. or foreign agency or authority, and all laws related to data protection and privacy, intellectual property, consumer and child protection, obscenity, defamation, marketing, advertising, and intercepting, monitoring, recording and sending of communications. Without limiting the foregoing, Customer and its Users shall be solely responsible for compliance with all applicable federal, state, local and international laws governing the privacy of communications for all parties to a conversation, including, when required, advising all participants in a recorded audio or video conference that the conference is being recorded and otherwise making all required disclosures and obtaining all necessary consents concerning the recording and transmission of Content. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Content, and for creating and retaining back-up copies of Content (if desired). Videonor shall have no obligation to store, and shall have no liability for failure to store, any Content.

 

2.4            Restrictions. Customer shall not, directly or indirectly: (i) rent, sell, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software, or any part thereof, (ii) use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of any third party, or make the Services or Software available to anyone other than its Users; (iii) publish, post, upload, record, link to or otherwise distribute or transmit any Content that infringes or violates the intellectual property rights, privacy rights, or other rights of any third party, contains or includes harmful, illegal or unsolicited communications or content, or otherwise violates the Acceptable Use Policy; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Services or any communications on the Services; (v) copy, modify or create derivative works based on the Services or Software, or any portion thereof; (vi) access the Services for the purpose of building a competitive product or service or copying its features or user interface; (vii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure or algorithms of the Services or Software, or (viii) delete, alter, add to or fail to reproduce in and on the Services or Software the name of Videonor and any copyright or other notices appearing in or on the Services or Software except as expressly authorized in writing by Videonor. Customer may use the Services only for sessions or meetings in which Customer is an active participant.

 

2.5            Suspension. If in Videonor’s reasonable determination Customer is using the Services in a manner that violates applicable laws or threatens the availability and stability of the Services, in addition to any of its other rights or remedies, Videonor may, without liability, immediately suspend Customer’s access to the Services. In such event, Videonor will use commercially reasonable efforts to provide Customer prior notice, and assist Customer to resolve the issues causing such suspension of Services.

 

  1. Security; Support; and Service Levels. Videonor shall: (i) maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Services in accordance with then-current applicable industry standards, provided however, Customer acknowledges and agrees that the Services are conducted and provided electronically over the Internet and that Videonor cannot guarantee the security or privacy of any electronic communications in which Customer participates; (ii) use commercially reasonable efforts to provide Support for the Services to Customer during the Term in accordance with Videonor’s then-current Support policies; and (iii) use commercially reasonable efforts to make the Services available to Customer 24 hours per day, 7 days per week, excluding unavailability due to scheduled maintenance or causes beyond Videonor’s reasonable control.

 

  1. Confidentiality. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Videonor Software, Documentation, technology, and technical information, product designs, business and marketing plans, and business processes. Confidential Information shall not include, or shall cease to include, as applicable, information or materials that Receiving Party can demonstrate (a) are or become generally known to the public, other than as a result of the act or omission of the Receiving Party; (b) are rightfully known to the Receiving Party prior to its receipt thereof from the Disclosing Party; (c) are disclosed by the Disclosing Party generally without restriction on disclosure; (d) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (e) are independently developed by the Receiving Party. The Receiving Party shall not: (i) 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, (ii) disclose or make the Disclosing Party’s Confidential Information available to any party, except those of its employees, contractors, and agents that have a “need to know” in order to carry out the purposes of this Agreement and are legally bound to maintain the confidentiality of such Confidential Information consistent with the terms of this Section 4. 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 shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled to disclose Confidential Information of the Disclosing Party in order to comply with applicable law, regulation, legal process or governmental request it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance at Disclosing Party’s request and expense should the Disclosing Party wish to seek a protective order or other relief.

 

  1. Proprietary Rights and Analytical Data.

 

5.1            Proprietary Rights. Except for the rights expressly granted under this Agreement, Videonor retains all right, title, and interest (including all related intellectual property rights) in and to the Services and Software, and all other products, works, software and technology created, used, or provided by Videonor in connection with this Agreement. Customer hereby grants to Videonor, solely for the purpose of providing the Services, a non-exclusive, worldwide, royalty-free, fully-paid up, transferable license to host, copy, display, transmit, transfer (including transfer outside the country of residence of Customer, its Users or participants in a conference), process and record Content, and to permit Videonor’s third party service providers to do so, in connection with Videonor’s provision of the Services to Customer. Further, if Customer or its Users provide Videonor any suggestions, input or other feedback relating to the Services or Software, Videonor shall have the right to freely and fully exercise and exploit the foregoing in connection with its business.

 

5.2            Analytical Data. Videonor shall be permitted to use any data generated in connection with the provision and use of the Services for its business purposes, provided, however, in the event Videonor provides such data to unaffiliated third parties, it shall be anonymized and presented in the aggregate so that it cannot be linked specifically to Customer or any User. The foregoing shall not limit in any way Videonor’s confidentiality obligations pursuant to Section 4 above.

 

  1. Delivery, Fees, Payment, and Taxes.

 

6.1            Delivery. Customer agrees that the Services purchased hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Videonor regarding future functionality or features.

 

6.2            Fees. Customer shall pay Videonor the fees set forth on the applicable Order Form (“Fees”) in accordance with this Agreement and the Order Form. In the event Customer exceeds the capacity licensed pursuant to the applicable Order Form(s), including without limitation by exceeding the number of participants permitted per User, Customer shall purchase additional licenses in a sufficient number to cover the excess use, and Videonor will charge Customer fees for such additional licenses at the unit price applicable to the then-current Order Form and pro-rated for the remaining term of the Order Form.

 

6.3            Payment. If not otherwise specified on an Order Form, Fees will be due within thirty (30) days of date of invoice. Customer will provide Videonor with and shall maintain valid and updated billing information. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to Videonor hereunder are non-cancelable and non-refundable. If Customer fails to pay any amounts due under this Agreement by the due date, Videonor will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that Videonor will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue.

 

6.4            Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Videonor’s net income or property). If Videonor is legally obligated to pay or collect Taxes for which Customer is responsible under this Agreement, Videonor will invoice and Customer will promptly pay such amounts (or Customer will reimburse Videonor for any Taxes paid on Customer’s behalf). The limitations set forth in Section 8 shall not apply to Customer’s payment obligations under this Section 6.

 

  1. Warranty and Disclaimer.

 

7.1            Warranty. Each party represents and warrants that it has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder. Subject to Section 7.2 below, Videonor warrants that during the Term: (a) the Services shall perform materially in accordance with the applicable Documentation, and (b) Videonor will employ then-current industry standard measures to test the Services and Software to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Services. As Customer’s exclusive remedy and Videonor’s entire liability for a breach of the warranties set forth in this Section 7.1, Videonor shall use commercially reasonable efforts to correct the non-conforming Services, and in the event Videonor fails to successfully correct the Services within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Services and receive an immediate refund of any prepaid, unused Fees for the remaining Term of the non-conforming Services.

 

7.2            Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH UNDER SECTION 7.1, THE SERVICES, SOFTWARE AND SUPPORT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. VIDEONOR AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) FURTHER WARRANTIES RELATING TO THE SERVICES, SOFTWARE, SUPPORT, OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  VIDEONOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. VIDEONOR DOES NOT WARRANT THAT THE SERVICES OR ANY CONTENT ARE SECURE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, EXCEPT FOR THE WARRANTIES SET FORTH UNDER SECTION 7.1.  VIDEONOR MAKES NO WARRANTY REGARDING ANY THIRD PARTY SERVICE WITH WHICH THE SERVICES MAY INTEROPERATE.

 

  1. Limitation of Liability.

 

8.1            NEITHER CUSTOMER, VIDEONOR, NOR VIDEONOR’S SUPPLIERS, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA OR COMMUNICATIONS, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

 

8.2            SUBJECT TO SECTION 8.3 BELOW, IN NO EVENT WILL VIDEONOR’S, ITS SUPPLIERS’, OR CUSTOMER’S LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNTS PAID TO VIDEONOR BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION THAT GAVE RISE TO THE LIABILITY.

 

8.3            There is no limitation on direct loss, claims or damages arising out of: (a) breach of Sections 2.3 or 2.4, (b) gross negligence or willful misconduct, (c) fraud, or (d) obligations of indemnity under Section 9.  There is no limitation on Customer’s obligation to pay Fees and Taxes as set forth in Section 6.

 

  1. Indemnification. Customer shall indemnify, defend and hold harmless Videonor and its affiliates against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action by a third party arising from Customer’s Content or Customer’s use of the Services in violation of the Acceptable Use Policy, Documentation or this Agreement.

 

  1. Customer Mention. Videonor may use Customer’s name to identify Customer as a Videonor customer of the Services, including on Videonor’s public website. Videonor agrees that any such use shall be subject to Videonor complying with any written guidelines that Customer may deliver to Videonor regarding the use of its name and shall not be deemed Customer’s endorsement of the Services.

 

  1. Term, Termination, and Effect of Termination.

 

11.1          Term. This Agreement shall commence on the Term Start Date specified on the applicable Order Form and, unless earlier terminated as provided herein, continue for the Term specified therein.  Upon expiration of the Term, unless otherwise stated on the applicable Order Form, the Agreement will automatically renew for additional Terms of one (1) year each, unless and until either party gives the other notice of non-renewal at least sixty (60) days prior to the end of the then-current Term. Videonor reserves the right to change the Fees or applicable charges and to institute new charges and Fees effective upon any renewal by providing ninety (90) days’ advance written notice to Customer, including via email.

 

11.2          Termination. Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice. Termination due to Customer’s breach shall not relieve Customer of the obligation to pay any fees accrued or payable to Videonor under the Agreement.

 

11.3          Effect of Termination.  Upon termination, the rights and licenses granted to Customer hereunder shall terminate immediately. The sections titled “Definitions,” “Restrictions”, “Confidentiality,” “Ownership,” “Fees, Payment and Taxes,” “Warranty Disclaimer,” “Limitation of Liability,” “Indemnification,”  “Term; Termination,” and “General” shall survive any termination or expiration of this Agreement.

 

  1. General

 

12.1          Assignment.  Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Videonor without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect.  Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

 

12.2          Controlling Law, Attorneys’ Fees and Severability.  This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.  With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Boston, Massachusetts.  In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.  In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

 

12.3          Notices. All legal notices hereunder shall be in writing and given upon (i) personal delivery, in which case notice shall be deemed given on the day of such hand delivery, or (ii) by overnight courier, in which case notice shall be deemed given one (1) business day after deposit with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries). In addition, Videonor shall have the right to provide notices applicable tot the Services generally via electronic means to the e-mail address associated with Customer’s account and such notices shall be deemed delivered when sent by Videonor.

 

12.4          Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party including but not limited to acts of God, computer related attacks, failure of third party services (including internet and telecommunications services), hacking, or acts of terrorism, the party so affected shall be excused from such performance and liability to the extent of such prevention or restriction.

 

12.5          Equitable Relief.  Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party.  Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.

 

12.6          Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.

 

12.7          Export Compliance. Customer shall not and shall not allow any third-party to (a) use the Services to share or transmit Content in violation of any applicable export control laws or other regulations, or (b) remove or export from the U.S. or allow the export or re-export of any part of the Service or Software or any direct product thereof: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan or Syria (to the extent the U.S. government or any agency thereof restricts export or re-export to such countries); (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.

 

12.8          Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government User as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government End User Section 12.8 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.

 

12.9     Entire Agreement.  This Agreement together with the Order Form(s), Acceptable Use Policy, and applicable Exhibit(s) constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled.  No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (other than with regard to capacity licensed, Term, Service, bill to, ship to, pricing) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.