MetaPort® End-User Subscription Agreement (MESA)
THIS METAPORT® END-USER SUBSCRIPTION AGREEMENT ("MESA" OR "AGREEMENT") IS EFFECTIVE THE DATE YOU ACCEPT THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AS OF THE EFFECTIVE DATE.
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 TERM "ENTERPRISE" 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 SYSTEM. ACCESS TO THE SYSTEM DURING A "TRIAL PERIOD" IS AT NETOPEX'S SOLE DISCRETION AND MAY BE TERMINATED AT ANY TIME WITHOUT ADVANCE NOTICE.
You may not access the System if you are (or the company you represent is) a direct competitor of Netopex, except with prior written consent. In addition, you may not access the System for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on December 1, 2017. It is effective between you, individually or with respect to the company you represent, and Netopex as of the date of your accepting this Agreement.
1. DEFINED TERMS
- "Active Service Provider" shall mean the Service Provider that is connected to the System in order to update Enterprise Data.
- Effective Date" shall mean the first date you accept the terms of the MESA whether by clicking the box indicating your acceptance or signing an Order Form.
- "End User" shall mean anyone who uses the System.
- "Enterprise" shall mean you or the entity you represent or, once an Order Form has been executed, the person or entity identified in the Order Form.
- "Enterprise Data" shall mean any information, passwords, PINS, other login information, materials, content or other data that Enterprise stores in the System and/or any data included in the System through an Active Service Providers, including customer proprietary network information (CPNI).
- "Enterprise User" shall mean any End User authorized by the Enterprise to use and access the System including access to Enterprise Data.
- "MESA" or "Agreement" shall mean this MetaPort® End-User Subscription Agreement, as amended, and incorporates any Order Forms, schedules, addenda or amendments that are executed by the parties.
- "Malicious Code" shall mean viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
- "Netopex" shall mean Netopex LLC, a Florida Limited Liability Corporation.
- "Order Form" means the ordering documents executed by Enterprise and Netopex for subscribing to the System, including exhibits or addenda thereto that are entered into between the parties from time to time. Order Forms shall be deemed incorporated herein by reference.
- "Parties" shall mean Netopex and Enterprise collectively, each a "Party"
- "Service Provider" shall mean any provider of telecommunications services, network services or other services relevant to the Services.
- "Services" shall mean any Service that Enterprise purchase form Netopex under an Order Form.
- "Subscribed Services" shall mean Services listed on an Order Form and provided and made available through System login.
- "Subscribed User" shall mean an End User with a current paid subscription and authorized access through System login.
- "System" shall mean collectively the MetaPort® application software and the related network, servers, manpower, hardware and other software programs and infrastructure that provide the Subscribed Services.
2. Subscribed Services
During the subscription term (as stated in the relevant order form), Netopex shall make available the Subscribed Services as described in the relevant Order Form and this Agreement. (a) Services are purchased at the Enterprise level and include a number of Subscribed Users and a number of Active Service Provider(s) as specified in the Order Form. Only Subscribed User will have access to the Subscribed Services. Only Active Service Providers will be connected to the System. (b) During the subscription term additional Subscribed Users can be added into the System. Pricing will be according those conditions available at the time such Enterprise User is activated and becomes a Subscribed User. Subscribed User login is for the designated Enterprise User and cannot be used by more than one user or shared among users. (c) During the subscription term Enterprise can add or change Active Service Providers. Pricing for adding or changing Active Service Provider will be according those conditions available at the time such Service Provider becomes an Active Service Provider.
3. Use of Subscribed Services
(a) Netopex will provide access to the System 24 hours per day, 365 days per year, excluding scheduled or emergency maintenance and unexpected downtime. Except for emergency maintenance, scheduled maintenance will be performed Monday through Friday after 8:00 PM Eastern Time and before 9:00 AM Eastern Time or on Saturday or Sunday. If applicable, Enterprise will be notified in advance with respect to scheduled maintenance. Netopex shall maintain appropriate administrative, physical and technical safeguards for security of Enterprise Data.
(b) Enterprise may use the System only for its intended use. Enterprise may not use the System to engage in any illegal, abusive or irresponsible behavior. Enterprise may not send or store spam, unlawful, infringing, obscene, or libelous material, or Malicious Code to or on the System. Enterprise shall take reasonable security precautions in light of its use of the System. Enterprise must protect the confidentiality of its passwords and change such passwords periodically. Enterprise shall be responsible for Enterprise User access to and use of the System. Enterprise shall be responsible for the control of the Enterprise User access to the System. Enterprise shall be responsible for activating or to deactivating Service Providers. Enterprise will comply with, and require Enterprise Users to comply with, laws applicable to the use of the System, and accessing Enterprise Data Enterprise shall report to Netopex any suspected use of the System that might be in violation of this Agreement.
(c) Enterprise shall be responsible for, and indemnify and hold Netopex harmless from, any act or omission of Enterprise Users and of Enterprise Users' compliance with all of the terms of this Agreement. Enterprise waives all of those defenses that Enterprise may have as to why Enterprise should not be liable for Enterprise Users' acts, omissions and noncompliance with this Agreement.
4. Price and Payment Terms; Taxes; Audit.
(a) Price and Payment Terms. Pricing pursuant to this Agreement shall be as described in the Order Form hereunder. Payments are pre-paid yearly for the Subscribed Services fee. Invoicing is on the first calendar day of the month the Subscribed Services are available and is due upon receipt. Enterprise billing and contact information must be provided in Enterprise Order Form and Enterprise is responsible for maintaining its accuracy during the term of the subscription. (a) If any payments are not received from Enterprise within thirty (30) days from the due date, Netopex may, at its own discretion suspend the Subscribed Services. All fees are non-refundable. Overdue amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower. Notwithstanding the foregoing, if the applicable charges are under reasonable and good faith dispute and Enterprise is cooperating diligently to resolve the dispute, Netopex will not exercise its rights set forth under this section.
(b) Taxes. Unless Enterprise is tax exempt, Enterprise shall pay all fees, taxes and charges governmentally imposed arising from the performance of this Agreement. If Netopex pays any of these charges, penalties or fines for Enterprise, Enterprise shall reimburse Netopex upon demand for the entire amount paid by Netopex. If any applicable law requires Enterprise to withhold amounts from any payments to Netopex under this Agreement, (a) Enterprise shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Netopex with tax receipts evidencing the payments of such amounts; and (b) the sum payable by Enterprise upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Netopex receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Netopex would have received and retained absent the required deduction or withholding.
(c) Audit. Enterprise shall maintain accurate records necessary to verify the number of Enterprise Users. Upon Netopex's or its third party appointee's written request, Enterprise shall provide Netopex or its third party appointee with such records within ten (10) days. If Enterprise has more Enterprise Users than Enterprise has paid for, Enterprise shall immediately pay the applicable fees for such additional Enterprise Users, commencing on the effective date of the applicable Order Form, in addition to reasonable costs incurred by Netopex associated with reviewing such records.
5. Rights You Grant to Netopex
(a) Enterprise hereby grants to Netopex a worldwide, non-exclusive, fully-paid, royalty-free, transferable license to use, reproduce and display Enterprise Data in order to provide the Services to Enterprise. By submitting Enterprise Data to Netopex, Enterprise represent that Enterprise or Enterprise Users are entitled to submit it to Netopex for use for this purpose, without any obligation by Netopex to pay any fees or other limitations.
(b) By using the System, you expressly authorize Netopex to access Enterprise Customer Proprietary Network information (CPNI) maintained by Active Service Providers, on your behalf as your agent. When you use the features of the System, the System will be connected to the Service Provider you have activated. Netopex will submit information including usernames and passwords that you provide to log into the Service Provider systems. You hereby authorize and permit Netopex to use and store information submitted by you to the System (such as passwords and user ids) to accomplish the foregoing and to configure the Services so that they are compatible with the Service Providers systems for which you submit your information. ENTERPRISE ACKNOWLEDGE AND AGREE THAT WHEN NETOPEX IS ACCESSING AND RETRIEVING CUSTOMER PROPRIETARY NETWORK INFORMATION(CPNI) AND CUSTOMER SERVICE RECORDS (CSR) FROM SERVICE PROVIDER, NETOPEX IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE SERVICE PROVIDER. Enterprise understands and agrees that the Services are not sponsored or endorsed by any Service Provider accessible through the System. With the System, Enterprise Users may direct Netopex to retrieve their own information maintained online by Service Providers with whom they have customer relationships, maintain accounts or engage in transactions ("Account Information").
(c) Netopex shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into any product or service owned by Netopex, any suggestions, enhancement requests, recommendations or other feedback provided by Enterprise and any of its Enterprise Users, relating to any product or service owned by Netopex.
6. Term and Termination
(a) The term of this Agreement will begin on the date Enterprise accepts this Agreement and will continue until the Subscribed Services provided under this Agreement have expired or have been terminated. (a) Subscribed Services will start of the start date specified on the Order Form and continue for the subscription term as specified therein. Except as otherwise specified in the Order Form, all Subscribed Services should automatically renew for an additional subscription period equal to the expiring subscription term or one (1) year (whichever is shorter), unless either party gives notice of no-renewal at least ninety (90) days before the end of the relevant subscription term. (b) Upon termination for any reason, (i) all of Enterprise right to use any portion of the System shall immediately cease and (ii) Netopex shall no longer be obligated to perform the Services. Notwithstanding termination, Netopex will be entitled to any fees earned or accrued through the date of notice of termination.
(b) Termination by Enterprise or Netopex. Either party may terminate this Agreement prior to the end of a subscription term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
(c) Surviving Provisions. Enterprise's obligation to make a payment of any outstanding, unpaid fees and the terms of Sections 1, 3(c), 4, 5(c), 6, 8(b)-(d), 9, 11-14, and 16-24 shall survive termination or expiration of this Agreement.
7. Trial Period
If Enterprise for any reason is invited and registers to access the System for a Trial Period before Netopex has accepted Enterprise Order Form (a) Enterprise Data (if any) entered into the System might be permanently deleted at the time the Trial Period is finished unless an Order Form is agreed to purchase the Subscribed Services and (b) notwithstanding Section 8 (Warranties and Disclaimers) during the Trial Period the Services are provided "AS-IS" without any warranty.
(a) "Enterprise Confidential Information". Enterprise shall remain at all times the sole owner of Enterprise Confidential Information. "Enterprise Confidential Information" means information that Enterprise provides to Netopex during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Netopex will not disclose or cause to be disclosed any Enterprise Confidential Information, except (a) to those employees, representatives, agents, consultants, or contractors of Netopex who require access to the Enterprise Confidential Information to exercise its rights under this Agreement and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to Netopex providing to Enterprise written notice to allow Enterprise to seek a protective order or otherwise prevent the disclosure.
(b) "Netopex Confidential Information". (i) Netopex retains all right, title and interest in and to the System and Documentation, and all Netopex software, know-how, inventions, developments, development tools, routines, subroutines, applications and any and all other materials (and all intellectual property rights therein) ("Netopex Confidential Information") that Netopex may make available to Enterprise pursuant to the terms of this Agreement for use or that Netopex may use in conjunction with the implementation and use of the System. Netopex further retains all right, title and interest in and to any and all intellectual property developed by Netopex in the course of implementing and deploying the System or providing the Services throughout the term of this Agreement, not including any Enterprise Confidential Information ("Netopex Intellectual Property"). (ii) Enterprise shall keep confidential all Netopex Confidential Information, and neither Enterprise nor its personnel will disclose to any other person or entity except (a) to those employees, representatives, agents, consultants, or contractors of Enterprise (excluding competitors) who require access to the Netopex Confidential Information to exercise its rights under this Agreement and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to Enterprise providing to Netopex written notice to allow Netopex to seek a protective order or otherwise prevent the disclosure, or use for any purpose other than specified herein, any Netopex Confidential Information during the term of this Agreement and for a period of three (3) years after its termination or expiration.
(c) Destruction. Within five (5) days after a disclosing party's request, the receiving party shall return or destroy the disclosing party's Confidential Information.
(d) Exclusion. The confidentiality obligations under Section 8 above shall not apply to any publicly available or independently developed information.
All right, title, and interest, in and to intellectual property embodied in the Services and any improved, updated, modified or additional parts thereof (by whomever produced), and any material provided by Netopex to Enterprise will at all times remain the property of Netopex (or its licensors).
Enterprise shall not, directly or indirectly: (a) create derivative works based on the Services except as permitted herein, (b) sublicense, resell (except as permitted in the Reseller Addendum, if applicable), rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Services or any modified version or derivative work of the Services created by or for Enterprise, (c) provide the Services, or any modified version or derivative work of the Services created by or for Enterprise, on a timesharing, service bureau or other similar basis, (d) remove or alter any copyright, trademark or proprietary notice in the Services, (e) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Services, or (f) copy any features, functions or graphics of the Services for any purpose other than what is expressly authorized in this Agreement.
Netopex, the Netopex logo, MetaPort and MetaPort logo are registered trademarks of Netopex, LLC in the United States and other countries, and no right is granted to Enterprise to use any of the foregoing except as expressly permitted herein, or as set forth in the Reseller Addendum, if applicable. All other trademarks, logo, service marks, registered trademarks, or registered service marks are the property of their respective owners.
10. Warranties and Disclaimer
Netopex warrants to Enterprise that the Services will be performed in accordance with the online documentation. For any breach of the foregoing warranty, Enterprise's sole and exclusive remedy shall be to terminate the Agreement pursuant to Section 6(b) and, notwithstanding anything to the contrary in Section 4(a) of the Agreement, have Netopex refund to Enterprise the pro rata unused portion of any pre-paid subscription fees.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NETOPEX MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND NETOPEX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND NETOPEX IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
11. Limitation of Liability
11.1 Limitation on All Damages. EXCEPT FOR ENTERPRISE'S BREACH OF SECTIONS 3, 8(B), AND 9, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY ENTERPRISE TO NETOPEX UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT ENTERPRISE'S PAYMENT OBLIGATIONS UNDER SECTION 4.
11.2 Disclaimer of Consequential Damages. EXCEPT FOR ENTERPRISE'S BREACH OF SECTIONS 3, 8(B), AND 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING UNDER THIS AGREEMENT AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW
12. United States Government Users
12.1 Software. The software in the Services is "Commercial Computer Software," as that term is defined in 48 C.F.R. 2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of "commercial computer software" and "commercial computer software documentation".
12.2 United States Federal Civilian Government Entities. If Enterprise is a federal civilian government entity, Netopex provides the Services, for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this "standard" or "customary" commercial license Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors.
12.3 United States Department of Defense Agencies. If Enterprise is any agency within the Department of Defense ("DOD"), Netopex provides the Services, for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this "standard" or "customary" commercial Agreement, as specified in 48 C.F.R. Â§Â§227.7202-3 and 48 C.F.R. Â§Â§227.7202-4 of the DOD FAR Supplement ("DFARS") and its successors, and consistent with 48 C.F.R. 227.7202. This Government Users clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Services under this Agreement and in any subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed.
13. Applicable Laws and Venue
All disputes and matters whatsoever arising under, in connection with or incidental to this Agreement shall be subject to the laws of the state of Florida excluding its conflicts of law provisions and shall be litigated, if at all, in and before a state or federal court sitting in Miami-Dade County, Florida, to the exclusion of the courts of any other county, state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
14. Breach of Agreement
In the event of a breach of this Agreement or any other default by a party of any of the terms, conditions or other provisions of this Agreement, the other party shall be entitled to exercise any and all rights and remedies available at law and in equity.
15. No Assignment
This Agreement may not be assigned or transferred by Enterprise without the prior written consent of Netopex. All or any portion of this Agreement and Netopex's obligations hereunder may, however, be assigned by Netopex without the consent of Enterprise.
16. Binding Effect
This Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors and permitted assigns.
17. Authority to Contract
The person executing this Agreement on behalf of both Parties is acknowledging having full and express authority to execute said document.
18. Relationship of the Parties
Netopex and Enterprise are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties
19. No Third-Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
20. Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's reasonable control, and denial of service attacks.
21. Export Compliance
The Services we make available may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit End Users to access or use the Services in a U.S.-embargoed country (PROHIBITED DESTINATIONS: The U.S. holds complete embargoes against Cuba, Iran, North Korea, Sudan, and Syria) or in violation of any U.S. export law or regulation. Neither Enterprise, businesses under its control, nor, to the best of its knowledge, its employees, (i) is a person whose property or interest in property is blocked or subject to blocking pursuant to, among others, Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) as amended, and Executive Order 13268 of July 3, 2002 (67 Fed. Reg. 44751 (2002)) and Executive Order 13372 of February 16, 2005 (70 Fed. Reg. 8499 (2005)), (ii) engages in any dealings or transactions prohibited by Section 2 of such executive order, or is otherwise associated with any such person in any manner violative of Section 2, or (iii) is a person on the list of Specially Designated Nationals or subject to the limitations or prohibitions under any other OFAC regulation or executive order. Neither the Enterprise, businesses under Enterprise's direct control, nor, to the best of its knowledge, its employees, are in compliance, in all material respects, with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended. Enterprise will ensure that End Users do not violate this Section 21.
Whenever any notice, demand or request is required or permitted under this Agreement, that notice, demand or request shall sent by United States mail, registered or certified, postage prepaid, or delivered via overnight courier to the addresses below.
NETOPEX, LLC, PO Box 431705, South Miami FL 33243, ATTN: General Counsel
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such 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 shall remain in effect.
24. Entire Agreement
THE PARTIES AGREE THAT THIS AGREEMENT, INCLUDING ALL EXHIBITS AND ADDENDA HERETO AND ALL ORDER FORMS, CONTAINS 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.