Terms of Service
Last updated: 02/22/2017
MASTER SERVICES AGREEMENT
THIS HANDSHAKE MASTER SERVICES AGREEMENT (THE "AGREEMENT") GOVERNS THE USE OF THE HANDSHAKE PRODUCTS AND PROFESSIONAL SERVICES (EACH, AS DEFINED BELOW). THIS AGREEMENT IS BETWEEN THE CUSTOMER (AS DEFINED BELOW) AND HANDSHAKE, INC., LOCATED AT 627 Broadway, 9th Floor, New York, NY, 10012. CUSTOMER ACCEPTS AND AGREES TO THE AGREEMENT BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; CLICKS THROUGH A CHECKBOX OR "I AGREE," "I ACCEPT," OR SIMILAR LANGUAGE IN A LINK OR CHECKBOX THAT REFERENCES THIS AGREEMENT, OR OTHERWISE ACCESSES THE HANDSHAKE PRODUCTS OR RECEIVES THE PROFESSIONAL SERVICES. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "CUSTOMER" SHALL ALSO REFER TO SUCH COMPANY OR ENTITY.
Definitions. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1. "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term " control" means the greater than 50% possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.2. "Authorized User" means an employee, individual contractor, or other party having a business relationship with Customer, who has been authorized by Customer to use the Handshake Product.
1.3. "Customer" means the company or other legal entity who has ordered Handshake Products and/or Professional Services pursuant to an Order Form, or any Affiliate(s) that orders the Handshake Products or Professional Services pursuant to an Order Form.
1.4. "Customer Data" means (i) all data, information, content and other materials that Customer or its Authorized Users' store, process, or otherwise transmit through their use of the Handshake Product, including without limitation, the product catalog, product orders, and order notes, and (ii) User Information.
1.5. "Destructive Elements" means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, the operation of the Handshake Product or any other associated software, firmware, hardware, computer system, or network (including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead, or trap door devices).
1.6. "Documentation" means the overview of Handshake product features and functionality and Knowledgebase documentation provided at www.handshake.com.
1.7. "Handshake Product" means: (i) the product that is described on the Order Form; and (ii) any Updates that Handshake makes available to Customer pursuant to the Support Services.
1.8. "Order Form" means a Handshake order form that is entered into by authorized representatives of both Parties and that sets forth: (i) the Handshake Product(s) being ordered; (ii) whether such Handshake Product(s) are being made available as downloadable application (" Downloadable App") or as an Handshake-hosted, web-based service (" SaaS Product"); (iii) the applicable license or subscription term and any applicable Usage Limitations; (iv) the applicable fees; and (v) other mutually-agreed upon terms and conditions.
1.9. "Professional Services" has the meaning set forth in Section 4.
1.10. "Prohibited Content" means content that: (i) is illegal under applicable law; (ii) violates any third party's intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to Handshake in its sole discretion.
1.11. "Support Services" has the meaning set forth in Section 3.
1.12. "Updates" means any corrections, fixes, patches, workarounds, and modifications that Handshake provides to its other customers paying for Support Services.
1.13. "Usage Data" means data concerning the performance and use of the Handshake Product, excluding any Customer Data and any derivatives thereto.
1.14. "Website" means the Handshake website located at handshake.com or any other website through which Handshake provides access to the SaaS Product.
Handshake Product(s); Restrictions on Use.
2.1. License/Subscription to Handshake Product. Subject to the terms and conditions of this Agreement and the Order Form, Handshake grants Customer a non-exclusive, non-transferable (except as permitted under Section 14.3 below) license and/or right, without the right to grant sublicenses, to permit the Authorized Users to access the SaaS Product through the Handshake Product, solely for the internal business purposes of Customer and as necessary for such Authorized Users' to order Customer's products and services. Customer shall be responsible to Handshake for any and all acts or omissions of the Authorized Users.
2.2. License/Subscription Term; Usage Limitations. The term of each license or subscription set forth in Section 2.1 as it applies to a particular item of Handshake Product will be for the period set forth in the Order Form, subject to early termination pursuant to Section 8.2 below. The applicable usage limitations for a particular item of Handshake Product, will be are set forth in the Order Form (" Usage Limitations").
2.3. Documentation. Customer may copy and use (and permit the Authorized Users to copy and use) the Documentation solely in connection with the use of the Handshake Product under this Agreement.
2.4. Restrictions on Use. Customer will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Handshake Product, or the Website; (ii) allow an Authorized User to share with any third party his or her Access Credentials to the Handshake Product; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Handshake Product or the Website; (iv) modify, adapt, or translate the Handshake Product or the Website; (v) make any copies of the Handshake Product or the Website; (vi) resell, distribute, or sublicense the Handshake Product or the Website, or use any of the foregoing for the benefit of anyone than Customer and Authorized Users; (vii) use the Handshake Product, the Website, or the Usage Data in violation of any applicable law or regulation, in order to build a competitive (or substitute) product or service, or for any purpose not specifically permitted in this Agreement; or (viii) introduce, post, or upload to the Handshake Product or the Website any Prohibited Content.
2.5. Title. As between Handshake and Customer, Handshake retains title to and ownership of the Handshake Product, the Website, the Usage Data, the Documentation, and any improvements or derivative works thereof, together with all copyrights and other intellectual property rights relating thereto. Customer will have no rights with respect to the Handshake Product, the Website, the Usage Data, or the Documentation other than those expressly granted under this Agreement. Unless otherwise set forth in an Order Form or Statement of Work, all right, title, and interest to and in any work product developed pursuant to the Professional Services (including, but not limited to, all copyrights, patents, trademarks, and other intellectual property rights relating thereto) (collectively, " Work Product") will be owned by Handshake and will be deemed to be included in the definition of Handshake Product and licenced to Customer on the terms set forth herein.
Support Services. Handshake will use commercially reasonable efforts to provide Customer problem resolution, and technical support in connection with the Handshake Product during the Term (the " Support Services"). For the SaaS Product, Handshake shall also comply with the service levels set forth in the service level agreement located at www/handshake.com (the " SLA").
Professional Services. Handshake offers its customers implementation, configuration, program management, training, and other services relating to the Handshake Product (the " Professional Services"). Any Professional Services to be provided by Handshake to Customer will be set forth in an Order Form and/or a statement of work, which references this Agreement and is executed by authorised representatives of the Parties (each, a " Statement of Work").
Company Account and Onboarding of Authorized Users. Upon the execution of the Order Form, Customer will be provided with access to an account for the Customer's organization for the Handshake Product(s) set forth on the Order Form (the "Company Account"). Depending on the Handshake Product(s) ordered by Customer, Customer will be asked to provide Handshake with information identifying each Authorized User ("User Information"). Handshake shall use the User Information to notify each Authorized User and require them to set up Access Credentials that the Authorized User shall use to access and use the applicable Handshake Product(s). Authorized Users are solely responsible for the confidentiality and use of their Access Credentials, as well as for any use, misuse, or communications entered through their Access Credentials. Handshake reserves the right to delete or change any Access Credentials at any time and for any reason. Customer is responsible for updating the User Information if any Authorized User is no longer employed, engaged, or Authorized by Customer to access and use the Handshake Product.
Fees and Payment Terms. Customer will pay Handshake all fees set forth in the Order Form (the " Fees") and are due in advance, unless otherwise stated in the Order Form. Fees are based on subscription licenses and not usage. All payments of Fees are non-refundable. All Fees and other amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars. If Customer is paying by credit card, Customer warrants and represents that the person submitting the credit card information has the authority to provide Handshake with the information, and Customer authorizes Handshake to bill the credit card for the fees applicable to Customer’s subscription for the initial term and any automatic renewal periods. Upon expiration of the initial term, Handshake will automatically bill Customer for the upcoming renewal term, unless Customer has elected to cancel its subscription as set forth in Section 8.1. Overdue payments will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowable interest under applicable law, from due date until paid. Customer will pay any sales, use, or other tax related to the licenses, subscriptions, and services provided hereunder, exclusive of income taxes and payroll taxes relating to Handshake's employees.
Compliance. Upon Handshake's written request, but no more than once per year during the term of this Agreement, Customer will provide Handshake with a written certification, that Customer is in full compliance with any applicable Usage Limitations and the other provisions of this Agreement. In addition, at any time during the term of this Agreement, Handshake (upon at least ten (10) business days prior, written notice to Customer and during normal business hours, but no more than once per year) will have the right to have its employees, accountants, and/or auditors audit Customer's compliance with the Usage Limitations and other provisions of this Agreement. Customer will provide Handshake with information reasonably requested by Handshake in connection with such audit. Customer will promptly remedy (including, if applicable, through the purchases of additional licenses or subscriptions from Handshake) any non-compliance with this Agreement that is revealed through such audit.
Term and Termination.
8.1. Term. The term of this Agreement begins on the Effective Date and will continue at all times thereafter unless and until terminated in accordance with Section 8.2 below. The license or subscription term for each Handshake Product will be set forth on the Order Form and will automatically renew unless either party gives notice to the other party of its desire to not renew, at least thirty (30) days prior to the end of the applicable term.
8.2. Termination for Material Breach. In the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement, and/or license or subscription to any Handshake Product by giving thirty (30) days prior, written notice to the breaching Party; provided, however, that this Agreement, and license or subscription to any Handshake Product will not terminate if the breaching Party has cured the breach before the expiration of such thirty (30) day period.
8.3. Effect of Expiration or Termination. If this Agreement is terminated under Section 8.2.2, all licenses and/or subscriptions to Handshake Product(s) will also terminate. Upon any termination of this Agreement and/or any termination or expiration of a license or a subscription, the following provisions will apply: (a) Customer will pay Handshake for any amounts payable hereunder as of the effective date of such termination or expiration;(b) all rights, licenses, and subscriptions granted hereunder to Customer (as well as any rights granted to any Authorized Users) will immediately cease, including, but not limited to, all use of the Handshake Product, the Website, the Usage Data, and the Documentation; and (c) each Party will either return to the other Party or provide the other Party with written certification of the destruction of all documents, computer files, and other materials containing any Confidential Information (as defined below) of such other Party that are in the first Party's possession or control.
8.4. Survival. The following provisions will survive any termination or expiration of this Agreement: Section 2.5, 8.2.2, 8.3, 9, 10.3, 11.4, 12, 13, and 14.
9.1. Confidentiality. The Parties acknowledge and agree that each Party has and will have access to certain Confidential Information of the other Party. "Confidential Information" means all information provided by a Party (the " Disclosing Party ) to the other Party (the " Receiving Party") hereunder that is proprietary and/or non-public information related to the past, present and future business activities of the Disclosing Party, its subsidiaries, and its affiliates which isdesignated as proprietary or confidential, herein or otherwise, or which a reasonable person would consider to be proprietary or confidential information. Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Receiving Party; (b) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who, to the Receiving Party's knowledge, does not owe a duty of confidentiality to the Disclosing Party. Receiving Party shall not use the Disclosing Party's Confidential Information except as permitted under this Agreement, and shall not disclose, distribute, or disseminate the Confidential Information to any third party. Receiving Party will, prior to providing an employee or consultant access to any Confidential Information of the Disclosing Party, inform such employee or consultant of the confidential nature of such Confidential Information and require such employee or consultant to comply with the Receiving Party's obligations hereunder with respect to such Confidential Information. It is understood and agreed by the Parties that money damages alone may not constitute a sufficient remedy for any breach by Receiving Party of its confidentiality obligations hereunder and that the Disclosing Party shall be entitled to seek specific performance and injunctive relief, without the necessity of posting a bond, cash or otherwise, as remedies for any such breach.
9.2. Feedback. Customer may elect to provide Handshake with feedback, comments, and suggestions with respect to the Handshake Product, the Website, the Usage Data, or the SaaS Product (" Feedback"). Customer agrees that Handshake shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer, such Authorized User.
10.1. License to Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grant Handshake during the term of this Agreement a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to Handshake (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute to Authorized Users the Customer Data via the Handshake Product and the Website. Handshake and its vendors will use the Customer Data only to perform its obligations hereunder and only as permitted by this Agreement.
10.2. Data Security. Handshake (and any third-party hosting provider that Handshake may engage) shall employ commercially reasonable physical, administrative, and technical safeguards to secure any Customer Data in Handshake's possession, custody, or control from unauthorized use or disclosure.
10.3. Aggregated Data. Handshake collects Usage Data in connection with the Handshake Product. Handshake may combine this Usage Data, with other data (including the Customer Data), and use such combined data, or a subset thereof, in an aggregate and anonymous manner. Customer hereby agrees that Handshake may collect, use, publish, and vend such aggregated and anonymized data provided such usage does not identify Customer.
Representations and Warranties; Disclaimer.
11.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
11.2. Additional Representations and Warranties of Handshake. In addition to the representations and warranties set forth in Section 11.1, Handshake represents and warrants to Customer that the Support Services and the Professional Services shall be performed in a professional and workmanlike manner. 11.3. Additional Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 11.1, Customer represents and warrants to Handshake that the Customer Data contains no Prohibited Content and that Customer has the right to provide Handshake the Customer Data in accordance with this Agreement. Customer further represents, warrants and covenants that each Authorized User agrees to comply with the terms and conditions set forth in this Agreement.
11.4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1 AND SECTION 11.2, THE HANDSHAKE PRODUCTS,THE SAAS PRODUCT, THE WEBSITE, THE USAGE DATA, THEIR COMPONENTS, ANY DOCUMENTATION, THE SUPPORT SERVICES, THE PROFESSIONAL SERVICES, AND ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS," AND NEITHER HANDSHAKE NOR ITS SUPPLIERS DISCLAIMS ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY.
Limitation of Liability. EXCEPT IN CONNECTION WITH CUSTOMER'S FAILURE TO PAY ANY AMOUNTS DUE AND OWING, A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY'S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO HANDSHAKE UNDER THE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
13.1. Indemnification by Handshake. Handshake will defend, hold harmless, and indemnify Customer and its officers, directors, and employees from and against any and all claims, actions, and lawsuits brought by a third party ("Third-Party Claims"), and will pay any settlements entered into by Handshake, awards, and reasonable attorney's fees associated with such Third-Party Claims, to the extent the Third-Party Claim is based on an assertion that the Handshake Product infringes or misappropriates any U.S. patent, copyright, or trade secret of a third party; provided, however, that notwithstanding the foregoing, Handshake will have no obligation with respect to any Third-Party Claim to the extent the Third-Party Claim arises from or relates to: (i) use of the Handshake Product in a manner that is not in accordance with this Agreement or the Documentation; (ii) any modification made to the Handshake Product by Customer or any third party; or (iii) use of the Handshake Product in combination with any other software, system, device, or process. In the event that (i) any Handshake Product is held to infringe or misappropriate the rights of a third party and/or the use of any Handshake Product is enjoined; or (ii) Handshake believes that there is a risk that any Handshake Product could be found to infringe or misappropriate the rights of a third party, Handshake will, if possible on commercially reasonable terms, at its own expense and option: (a) procure for Customer the right to continue to use such Handshake Product; (b) replace the components of such Handshake Product that are at issue with other components with the same or substantially similar functionality; or (c) suitably modify such Handshake Product so that it is non-infringing and includes the same or substantially similar functionality. If none of the foregoing options are available to Handshake on commercially reasonable terms, Handshake may terminate the Order to which such Handshake Product relates without further liability to Customer, and in the event of such termination, Handshake will refund to Customer an amount equal to the license or subscription fee paid by Customer for the infringing version(s) for the then-current period, less a deduction reasonably determined by Handshake to account for Customer's use of such Handshake Product. This Section 13.1, states Customer's sole and exclusive remedy, and Handshake's sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.
13.2. Indemnification by Customer. Customer will defend, hold harmless, and indemnify Handshake and its officers, directors, and employees from and against any and all Third-Party Claims, and will pay any settlements entered into by Customer, awards, and reasonable attorney's fees associated with such Third-Party Claims, to the extent the Third-Party Claim is based on: (i) an assertion that the Customer Data infringes or misappropriates any U.S. patent, copyright, or trade secret of a third party; or (ii) Customer's, its Authorized Users' violation of any laws.
13.3. Procedures. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld).
14.1. Notices. Unless otherwise specified herein, all notices and other communications between the Parties required or permitted by this Agreement or by applicable law (other than routine operational communications), will be deemed properly given, if given by (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) nationally recognized private courier service; to the respective addresses of the Parties set forth above or such other addresses as the respective Parties may designate by like notice from time to time. Notices so given will be effective upon (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.
14.2. Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing herein will constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.
14.3. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
14.4. Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, Internet disruptions, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
14.5. Choice of Law; Forum. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New York, Borough of Manhattan for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and each Party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
14.6. No Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
14.7. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties' intent.
14.8. Publicity. During the term of this Agreement, Handshake may refer to Customer as a customer and user of the Handshake Product, and the Website. In connection therewith, Handshake may use Customer's name and corporate logos.
14.9. Export. Customer shall not export or re-export, either directly or indirectly, the Handshake Product, the Website, the Usage Data, or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval).
14.10. Entire Agreement. This Agreement (including the Appendices attached hereto, and any Orders and Statements of Work) contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. To the extent any provision set forth in the Order Form or Statement of Work conflicts with any provision set forth elsewhere in this Agreement, the provision set forth in this Agreement shall govern, unless expressly stated otherwise. There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in this Agreement. No term included in any confirmation, acceptance, purchase order, or any other similar document from Customer in connection with this Agreement will apply to this Agreement or have any force or effect.