AppComputing Service Agreement (the "Agreement")
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; OR BY CONTINUOUSLY USING THE SERVICES; OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are a direct competitor of AppComputing. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 1, 2017. It is effective between You and AppComputing as of the date of You accepting this Agreement.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and AppComputing from time to time, via either online or offline. Order Forms shall be deemed incorporated herein by reference.
"Services" means AppComputing online, web-based application services and consulting services, including BudgetEngine, VC Portfolio, Audit Trail, Support Service, data integration APIs including Plugins and Addons provided by AppComputing for 3rd party accounting/ERP/CRM/MRP software, and other features and functions, provided by AppComputing to You generally from time to time.
"Purchased Services" means Services that Customer purchases under an Order Form, as distinguished from those provided pursuant to a free trial.
"Documentation" means the user manuals and other materials, subject to change from time to time upon notice to You, including but not limited to user manual and reference guide that describe the use of Services that are provided to You by AppComputing.
"AppComputing" means AppComputing, Inc., a Delaware corporation with primary business locations and contact information as defined in its website at http://www.appcomputing.com.
"Customer", "You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
"Users" means individuals who are authorized by Customer to use the Services, who have been supplied user identifications and passwords by Customer (or by AppComputing at Customer's request). Users may include, but are not limited to, Customer's employees, consultants, contractors and agents; or third parties with which Customer transacts business.
"Customer Data" means all electronic data or information submitted by You and/or Users to the Services.
"Audit Trail Data" means certain Users' activities recorded by the Services from time to time, including, but not limited to, Users login to the Services; Users logout from the Services; Customer Data submitted, or edited, or deleted by Users.
2. FREE TRIAL
We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered or are registering to use the Service or (b) the start date of any purchased Services ordered by Customer. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL. NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.
3. PURCHASED SERVICES
AppComputing shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by AppComputing regarding future functionality or features.
4. USE OF THE SERVICES
4.1 4.1 AppComputing's Responsibilities. AppComputing shall: (i) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, and maintain a Service Level of 99% per each twelve (12) month subscription period (the "SLA Measurement Period"), except for: (a) planned down time (of which AppComputing shall schedule to the extent practicable during the weekend hours from 9:00 p.m. Pacific Time Friday to 3:00 a.m. Pacific Time Monday), or (b) any unavailability caused by circumstances beyond AppComputing's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays; (ii) use commercially reasonable efforts to perform nightly full backup on Customer Data and retain the backup sets for up to seven (7) calendar days; and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations. If the actual Service Level falls below 99% for any given SLA Measurement Period for which Customer has paid the User Fees set forth in the Order Form (the "SLA Shortfall Period"), provided Customer makes a request in writing within thirty (30) days after the end of the SLA Shortfall Period, Customer shall receive a credit towards the following year User Fees in an amount equal to the percentage of the Fees paid for the SLA Shortfall Period corresponding to the number of minutes for which Service Level fell below ninety-nine percent (99%) per such SLA Shortfall Period. The foregoing shall be Customer's sole remedies for AppComputing's failure to deliver Service Level under in this Agreement.
4.2. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which You acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify AppComputing promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the documentation and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. AUDIT TRAIL DATA
5.1. Audit Trail Data Retention. Subject to section 12.5, Deletion of Your Data, AppComputing shall have no obligation to keep any Audit Trail Data which are older than twelve (12) months from the date they were initially recorded (the "Obsolete Audit Trail Data"). AppComputing Services can permanently delete such Obsolete Audit Trail Data at any time without further notice. You shall export and back up such Obsolete Audit Trail Data to an offline storage outside the Services before they are deleted by the Services.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, and (iii) payment obligations are non-cancelable and fees paid are non-refundable.
6.2. Invoicing and Payment. You will provide AppComputing with valid and updated credit card information. You authorize AppComputing to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Services Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at AppComputing's discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Services is ten (10) or more days overdue, AppComputing may, without limiting other rights and remedies, suspend Services to You until such amounts are paid in full.
6.5. Taxes. Unless otherwise stated, AppComputing's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If AppComputing has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, AppComputing is solely responsible for taxes assessable against it based on AppComputing's income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, AppComputing reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Customer Data. As between AppComputing and Customer, Customer exclusively owns all rights, title and interest in and to all of Customer Data.
7.4. Suggestions. AppComputing shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
7.5. Limited Customer Data License. Customer hereby grants to AppComputing a royalty-free, worldwide, non-exclusive, non-transferable limited license to store and use the Customer Data, solely to the extent necessary to (i) provide the AppComputing Services to Customer and its Users; (ii) communicate to Users about AppComputing Services; and (iii) otherwise fulfill AppComputing's obligations to Customer under this Agreement. The Customer Data will be the sole property of Customer, and any goodwill derived from the use of the Customer Data inures solely to Customer.
7.6. Limited Customer Trade Mark and Logo License. Customer hereby grants AppComputing a royalty-free, worldwide, non-exclusive, non-transferable limited license to reproduce the Customer Trade Mark and Logo solely on AppComputing's website for marketing purposes. Except for the license rights expressly granted herein, Customer reserves all right, title and interest to the Customer Trade mark and Logo.
8.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Customer Data; AppComputing Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Protection of Customer Data. Without limiting the above, AppComputing shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. AppComputing shall not (a) disclose Customer Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (b) access Customer Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. AppComputing Warranties. AppComputing warrants that (i) the Services shall perform materially in accordance with the Documentation, and the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.
9.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
9.3. Disclaimer. EXCEPT FOR WARRANTIES AS EXPRESSLY PROVIDED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPCOMPUTING MAKES AND CUSTOMER RECEIVES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND APPCOMPUTING SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SPECIFICALLY, APPCOMPUTING DOES NOT WARRANT THAT THE APPCOMPUTING SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT APPCOMPUTING SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by AppComputing. We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by You in connection with any such Claim; provided, that You (a) promptly give AppComputing written notice of the Claim; (b) give AppComputing sole control of the defense and settlement of the Claim (provided that AppComputing may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to AppComputing all reasonable assistance, at AppComputing's expense. In the event the use of Services as provided to You by AppComputing under this Agreement is, or in AppComputing's sole discretion may be, subject to an infringement claim, then AppComputing may, at its sole option and expense: (i) procure for You the right to continue to use such Services as set forth under this Agreement, or (ii) replace or modify such Services to make them non-infringing. If AppComputing, in its sole discretion, concludes that neither alternative (i) or (ii) above is reasonably available, then AppComputing may terminate this Agreement and the applicable Order Form and pay to Customer a pro-rated refund on any unused subscription fees paid to AppComputing. The foregoing represents Customer's sole and exclusive remedy, and AppComputing's entire liability, with respect to infringement or alleged infringement of third party intellectual property rights.
10.2. Indemnification by You. You shall defend AppComputing against any Claim made or brought against AppComputing by a third party alleging that Customer Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify AppComputing for any damages finally awarded against, and for reasonable attorney's fees incurred by AppComputing in connection with any such Claim; provided, that AppComputing (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release AppComputing of all liability); and (c) provide to You all reasonable assistance, at Your expense.
10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) 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.
11. LIMITATION OF LIABILITY
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. IN NO EVENT SHALL APPCOMPUTING'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased Services Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless AppComputing has given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
12.3. Termination for Cause. A party may terminate this Agreement 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 period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. Upon any termination for cause by You, AppComputing shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to AppComputing for the period prior to the effective date of termination.
12.5. Deletion of Your Data. Upon termination of Service Subscription, AppComputing shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Services or otherwise in AppComputing's possession or under AppComputing's control.
12.6. Surviving Provisions. Section 1 (DEFINITIONS), 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Deletion of Your Data), 13 (Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the account administrator designated by You for Your relevant Services account.
13.2. Agreement to Governing Law and Jurisdiction. Each party agrees that this Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Any dispute arising out of or relating to this Agreement other than a dispute requiring urgent relief or concerning AppComputing's intellectual property rights will be resolved solely by final and binding arbitration as follows. The arbitration will be conducted in San Jose, California before a single arbitrator. The arbitrator will have relevant knowledge and/or experience in online web-based services and will be jointly selected and mutually approved by the parties or, if the parties are unable to agree, will be appointed by the American Arbitration Association ("AAA"). The arbitration will be conducted in accordance with the AAA's rules of commercial arbitration. The parties initially will share equally the fees and expenses of the arbitration. However, the prevailing party (if applicable and as determined by the arbitrator) will be entitled to recover from the non-prevailing party all such fees and expenses (including without limitation reasonable attorneys' fees). Any arbitration decision so rendered will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction.
13.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
14.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
14.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.6. Attorney Fees. You shall pay on demand all of AppComputing's reasonable attorney fees and other costs incurred by AppComputing to collect any fees or charges due AppComputing under this Agreement following Your breach of Section 6.2 (Invoicing and Payment)
14.7. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, AppComputing shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.