Vertical Technologies, LLC doing business as Komet Sales
Terms of Service
Effective Date: September 1, 2013
Last Updated: February 9, 2021
PLEASE NOTE THAT THE ORDER (IF APPLICABLE) TOGETHER WITH THESE TERMS OF SERVICE (COLLECTIVELY, THIS “AGREEMENT”) GOVERN YOUR USE OF THE SERVICES. BY ENTERING INTO AN ORDER OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AND VERTICAL TECHNOLOGIES, LLC D/B/A KOMET SALES (“KOMET”) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICES.
1.1. “Documentation” means that documentation that is generally provided to you by Komet with the Services, as revised by Komet from time to time, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Services. Documentation does not include marketing materials.
1.2. “Order” means a purchase order, statement of work, or other ordering document (including any online registration process) that references and incorporates this Agreement and is accepted by Komet as set forth in Section 4 (Order).
1.3. “Services” means the functionality of the computer programs listed on an Order available for your access over the internet.
1.4. “Subscription Term” means the initial term of your authorized use of the Services, as set forth in the applicable Order, together with any renewal terms thereof (if applicable).
1.5. “You” or “your” means the individual and/or entity agreeing to these terms with Komet, whether pursuant to an Order or otherwise.
2. LICENSE GRANT; SERVICES.
2.1. General License Grant. Subject to your compliance with this Agreement, Komet grants to you a non-exclusive, non-assignable, non-sublicensable right and license to access and use the Services during the Subscription Term and solely in accordance with the Documentation for your internal business operations. Unless otherwise indicated in the Order, licenses granted to you will commence on the date you are notified of the ability to access and use the Services and does not include the right to download or possess any object or other code. The rights herein are limited by any restrictions set forth in the applicable Order, including any limitation on number of authorized users (as set forth in the Order, “Authorized Users”).
2.2. Ownership. The Services and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all intellectual property rights therein, are and shall remain the sole and exclusive property of Komet and its licensors. No rights with respect to the Services or any related intellectual property rights other than those set forth herein are implied. Komet reserves all rights not expressly granted to you.
2.3. Third-Party Services. Komet does not control and is not responsible for any third-party data, content, services, or products (including software) that you access, download, use, receive or buy while using the Services. Komet is not a publisher of third-party content accessed through the Services and is not responsible for the content, data or any other information provided to or by third parties as accessible through the Services. You are responsible for evaluating whether you want to access or use a third-party site or service and any applicable terms or privacy policies applicable thereto. Accordingly, if you decide to use third party sites or services, you do so at your own risk and agree that this Agreement does not apply to your use of any third party sites or services. You are responsible for purchasing and licensing from applicable third parties the hardware and software required for operation of the Services and for maintaining current license and support relationships with such third parties as required to enable your use of the Services.
2.4. Changes. Komet may change any part of this Agreement at any time upon notice to you. Such modification shall be effective immediately upon notice to you, including notice through the Services. It is your responsibility to check these Terms of Service periodically for changes. Your use or continued use of the Services following the posting or notice of any changes to these Terms of Service shall constitute your acceptance of the changed Terms of Service.
3. RESTRICTIONS; OBLIGATIONS; ACCEPTABLE USE.
3.1 License Restrictions. Without Komet’s prior written consent, you must not, and must not allow any third party to: (a) make available Services in any form to anyone other than your employees or contractors reasonably acceptable to Komet and that require access to use Services on behalf of you in a matter permitted by this Agreement; (b) transfer or sublicense Services or Documentation to any third party, except as expressly permitted in Section 12.1 (Transfers; Assignment); (c) use Services in conflict with the terms, restrictions and other requirements specified herein or in the Documentation and/or Order, including any limitations on Authorized Users; (d) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Services, or reverse engineer, decompile, or otherwise attempt to derive source code from the Services; (e) upload any viruses or harmful code or data to the Services or attempt to circumvent any usage limit; or (f) violate or circumvent any technological restrictions within the Services.
3.2. Obligations. You will: (a) be responsible for your users’ compliance with this Agreement and for all acts and omissions of such users as if they were your acts or omissions; (b) be responsible for the accuracy, quality, and legality of the data you input into the Services, the means by which you acquired such data, and ensuring that you have sufficient rights, authorizations and consents necessary to provide such data to Komet for use as specified in this Agreement; (c) implement accepted industry safeguards and security measures to prevent unauthorized access to or use of the Services and any personal data that is made available to you through the Services and will notify Komet immediately of any unauthorized access or use of which you become aware; (d) use Services only in accordance with this Agreement, any applicable Order, and the Documentation; (e) comply with all laws applicable to your use of the Services, which for the avoidance of doubt includes access to and use of any personal data available therein; and (f) promptly and fully cooperate with Komet and make the necessary personnel and resources available to Komet for Komet to deliver the Services, as reasonably requested by Komet. Komet enforces a zero-tolerance SPAM policy regarding information transmitted through our network. Komet may determine in its sole discretion whether any transmissions are considered SPAM. SPAM includes, but is not limited to, the following: (1) bulk unsolicited e-mail, promotional material, or other forms of solicitation sent via the Services, or e-mail that advertises any IP address belonging to Komet or any URL (domain) that is hosted by Komet; (2) the use of web pages set up on ISPs that allow SPAM-ing that directly or indirectly reference customers to domains or IP addresses hosted by Komet; or (3) forging or misrepresenting message headers, whether in whole or in part, to mask the true origin of the message. If Komet determines that you have posted one or more articles of SPAM, Komet may cancel your account immediately and take steps to prevent you from using our network at any time thereafter.
3.3. Your Content. As between you and Komet, you own the information, materials, photos, or other content (the “Content”) you provide Komet under this Agreement. Any Content that you upload or otherwise provide to Komet in connection with the Services may be used by Komet in order to provide and promote the Services or Komet’s business. Accordingly, you grant to Komet, and all of its subsidiaries, affiliates, successors, and assigns, a worldwide, perpetual, royalty-free, fully paid, sublicensable, non-exclusive, and transferable right to use, publish, reproduce, distribute, modify, prepare derivative works of, adapt, publicly display and otherwise use the Content. Such right to use such Content shall survive the termination of this Agreement and termination of the Services. Additionally, you authorize us to use your corporate logo and corporate name, if applicable, for any promotional purposes (to opt-out, email us at firstname.lastname@example.org). Notwithstanding the foregoing, you retain all rights to the Content, except as otherwise provided herein or as otherwise provided in any other agreement between you and Komet. Any Content you submit to us is provided at your own risk of loss. You are solely responsible for all Content you share, provide, display, publish, or disseminate to others, whether such action was taken by Komet or you. By providing Content to Komet, you represent and warrant that you are entitled to submit it and that it is not confidential and not in violation of any law, contractual restrictions or other third-party rights (including any intellectual property rights). Komet may also remove or delete your Content from the Services at any time in its sole discretion.
3.4 Accounts; Access Credentials. Except for your Content licensed to Komet as set forth above, the account you (and your Authorized Users) create and any related profile is owned by Komet. Each Authorized User should have their own account. With regard to your account, you (and your Authorized Users) agree to: (i) keep your passwords secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify Komet of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account. You acknowledge and agree that you are solely responsible for protecting your passwords and other personal information and for the consequences of not protecting such data.
3.5. Interactions with Other Users. You are solely responsible for all interactions with other users. You acknowledge and agree that Komet does not have an obligation to verify any Content or other information provided by users on the Services. Komet may offer various forums which allow you to post comments. Komet also enables sharing of information by allowing users to post content and information, including links and other information. Pursuant to the license granted by you above, Komet may grant other users of the Services access and share rights to your Content in accordance with this Agreement, your settings and the nature of your connection with such other users. Additionally, Komet is not responsible for the truthfulness, accuracy, authenticity, or completeness of any of the Content or any other information provided by other users or any other third party.
3.6. Monitoring. Komet has no obligation to monitor your use of the Services. Komet uses technological means to track user activity in the Services. Komet may at all times monitor, review, retain and disclose any information as necessary to confirm compliance with this Agreement and to satisfy or cooperate with any applicable law, regulation, legal process or governmental request.
4. ORDER. Your Order is subject to this Agreement. No Orders are binding on Komet until accepted by Komet. Orders for Services are deemed to be accepted upon Komet’s delivery of the Services included in such Order.
5. SUPPORT AND SUBSCRIPTION SERVICES.
5.1. Updates. During the Subscription Term, maintenance and support services will include provision of such updates, bug fixes, patches and other error corrections (collectively, “Updates”) as Komet makes generally available to all licensees of the Services at no additional charge. Komet may develop and provide Updates in its sole discretion, and you agree that Komet has no obligation to develop any Updates at all or for particular issues. You further agree that all Updates will be deemed Services, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Maintenance and support services do not include any new version or release of the Services that Komet may issue as a separate or new product, and Komet may determine whether any issuance qualifies as a new version or release in its sole discretion.
5.2. Exceptions. Komet has no obligation to provide maintenance and support services, including Updates: (a) for or related to any software or other products you have obtained from any third party; or (b) if you are in breach under this Agreement.
6.1. Services Warranty and Remedy. During the Subscription Term, Komet warrants to you that the Services will substantially conform to the applicable Documentation in all material respects, provided that the Services have been properly used at all times in accordance with the applicable Documentation. Komet shall not be in breach of the foregoing warranty if any nonconformance with the foregoing warranty is caused by an update, add-on, integration, product, software, or service not provided by Komet. Komet will, at its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, either replace the Services or correct any reproducible error in the Services reported to Komet by you in writing during the Subscription Term. If Komet determines that it is unable to correct the error or replace the Services, Komet will refund to you a pro-rated amount paid by you for the Services covering the unused, remaining portion of the Subscription Term, in which case the license to those Services will terminate.
6.2. Disclaimer of Warranty. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KOMET AND ITS PROVIDERS MAKE NO OTHER WARRANTIES UNDER THIS AGREEMENT, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. KOMET AND ITS PROVIDERS DO NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR MEET YOUR REQUIREMENTS.
7.1. Defense and Indemnification. Subject to the remainder of this Section 7 (Indemnification), Komet shall defend you against any third party claim that the Services infringes any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) under the laws of the United States (“Infringement Claim”) and indemnify you from the resulting costs and damages finally awarded against you to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are applicable only if you: (a) promptly notify Komet in writing of the Infringement Claim; (b) allow Komet sole control over the defense for the claim and any settlement negotiations; and (c) reasonably cooperate in response to Komet requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of Komet.
7.2. Remedies. If the alleged infringing Services become, or in Komet’s opinion are likely to become, the subject of an Infringement Claim, Komet will, at Komet’s option and expense, do one of the following: (a) procure the rights necessary for you to make continued use of the affected Services; (b) replace or modify the affected Services to make it non-infringing; or (c) terminate the license to the affected Services and discontinue the related support services, and, upon your certified deletion of the affected Services, refund a pro-rated portion of the fees paid by you for the unused, remaining portion of the Subscription Term as of the effective date of termination. Nothing in this Section 7.2 (Remedies) shall limit Komet’s obligation under Section 7.1 (Defense and Indemnification) to defend and indemnify you, provided that you replace the allegedly infringing Services upon Komet’s making alternate Services available to you and/or you discontinue using the allegedly infringing Services upon receiving Komet’s notice terminating the affected Services.
7.3. Exclusions. Notwithstanding the foregoing, Komet will have no obligation under this Section 7 (Indemnification) or otherwise with respect to any claim based on: (a) a combination of Services with non-Komet products (other than non-Komet products that are listed on the Order and used in an unmodified form); (b) use for a purpose or in a manner for which the Services were not designed; (c) any modification to the Services made without Komet’s express written approval; or (d) any Services provided on a no charge, beta or evaluation basis. THIS SECTION 7 (INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND KOMET’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
7.4. Your Indemnification. You agree to indemnify and hold Komet harmless from any damages, claims or expenses (including reasonable attorneys’ fees) arising from or related to your Content or your violation of this Agreement.
8. ECONOMIC TERMS.
8.1. General. You shall pay the fees set out in the applicable Order or otherwise agreed to by you from time to time. To the extent your use of the Services exceeds the usage limits provided for in your Order(s), Komet reserves the right to recover such fees and charge you standard and overage fees for any such excessive use.
8.2. Fees and Payment. You shall make all payments in U.S. dollars. Unless otherwise expressly agreed to in an Order, (1) payment of subscription fees are due, according to the payment terms specified in the Order, and (2) payment for any other amounts owed shall be due upon receipt of the corresponding invoice. Fees are non-cancelable and non-refundable. Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason.
8.3. Payment Credentials. You agree that Komet and its third-party service providers providing payment processing services may store your payment information. Komet may charge your payment information for subsequent charges you authorize, such as account upgrades or other special charges authorized by you. If the payment method you use with us reaches its expiration date and you do not edit the applicable information, you authorize us to continue billing that payment method and you remain responsible for any uncollected amounts.
8.4. Late Fees. If any invoiced amount is not received by Komet by the due date, then, those amounts will accrue interest at a rate of 1.5% per month or the maximum allowed under state law (whichever is lower). Komet, at its option, may suspend performance of any other obligation arising hereunder, in whole or in part, if Komet does not receive all amounts due and owing under this Agreement within thirty (30) days after delivery of notice to you (which may be presented to you through the Services) of the failure to pay such overdue balances.
8.5. Taxes. You shall be solely liable for any and all taxes arising in connection with its purchases of licenses to Services or services hereunder other than any federal, state, local, or other taxes based on or measured by Komet’s net income or receipts. Fees under this Agreement are exclusive of federal, state, or local taxes, or other sales, use, value-added, excise, personal property, or other similar taxes.
8.6. Price Changes. Komet reserves the right to change its prices. If Komet does change pricing, Komet will provide notice of the change through the Services, in an email to you or through other means at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the new amount.
9. LIMITATION OF LIABILITY.
9.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL KOMET OR ITS PROVIDERS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. KOMET’S AND ITS PROVIDERS’ LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE GREATER OF (A) FEES PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) $1000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER KOMET OR ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.2. Limitation of Liability Exclusions. The limitations of liability in this Section 9 (Limitation of Liability) shall not apply to: (a) your violation of Komet’s or its licensors’ intellectual property rights or your use of the Services in a manner not expressly authorized by the Agreement; (b) Komet’s indemnification obligations under the Agreement; (c) the gross negligence or willful misconduct of either party; or (d) any liability which may not be excluded by applicable law.
9.3. Further Limitations. You may not bring a claim under or in connection with this Agreement more than eighteen (18) months after the cause of action arises.
10. TERM; TERMINATION.
10.1. Agreement Term. The term of this Agreement begins on the notice of availability for electronic download or delivery of the Services and continues until all outstanding Subscription Terms have expired or this Agreement is otherwise terminated in accordance with this Section 10 (Termination).
10.2. Subscription Terms. The initial Subscription Term for each Order for Services shall begin on the date specified in the Order and continue for the initial Subscription Term set forth therein. Thereafter, unless either party provides notice of its intent to not renew at least thirty (30) days’ prior to the end of the then-current Subscription Term, each Subscription Term shall automatically renew for successive, consecutive twelve (12) month periods.
10.3. Termination for Breach. Either party may terminate this Agreement or an applicable Order upon written notice to the other party if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice thereof.
10.4. Termination for Insolvency. Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (a) terminates or suspends its business; (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (c) becomes subject to any bankruptcy or insolvency proceeding.
10.5. Suspension. Komet may deny or restrict your access to all or part of the Services without notice in its reasonable discretion if it deems that you have engaged in any conduct or activities that Komet, in its reasonable discretion, believes violates this Agreement. If Komet denies or restricts your access to the Services because of such a violation, you shall have no right to obtain any refund or credit for the subscriptions fees you have paid.
10.6. Effect of Termination. Termination of this Agreement shall constitute a termination of all outstanding Orders, but termination of an Order shall not terminate this Agreement if any other Order(s) remain outstanding. Upon termination of this Agreement: (a) all rights to all Services granted to you under this Agreement will immediately cease; (b) you must cease all use of all Services, and (c) you must return or destroy all Komet Confidential Information (as defined in Section 11.1 (Confidential Information) below) in your possession or control and certify in writing to Komet that you have fully complied with these requirements. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 3 (Restrictions; Obligations; Ownership), 6.2 (Disclaimer of Warranty), 7.4 (Your Indemnification), 9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information) and 12 (General).
11. CONFIDENTIAL INFORMATION.
11.1. Definition. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which are in tangible form and labelled “confidential” or the like, or information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) information regarding Komet’s pricing, product roadmaps or strategic marketing plans; and (b) non-public materials relating to the Services.
11.2. Protection. Recipient may use Confidential Information of Discloser: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will implement means designed to protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
11.3. Exceptions. Recipient’s obligations under Section 11.2 (Protection) with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Discloser; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Discloser’s Confidential Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
11.4. Feedback; Analytical Data. You acknowledge and agree that any suggestions, enhancements, requests, recommendations, corrections, or other feedback provided by you or your users relating to the operation, functionality, or performance of the Services may be freely used by Komet without restriction, accounting, or payment of any kind. You further acknowledge and agree that Komet may collect and compile data related to or derived from monitoring your access to and use of the Services (“Analytical Data”) for statistical and performance analysis, improvement of the Services, development of new products and services, detection and prevention of fraudulent use of the Services, and for any other lawful purpose. As between you and Komet, all right, title and interest in Analytical Data belong to and are retained solely by Komet; provided that Komet shall not disclose your identity or the identity of any Authorized User in connection with the use of such Analytical Data.
12.1. Transfers; Assignment. You may not assign this Agreement, any Order, or any right or obligation herein or delegate any performance without Komet’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by you will be void. Komet may use its affiliates or other sufficiently qualified subcontractors to provide services to you, provided that Komet remains responsible to you for the performance of the services.
12.2. Notices. Any notice delivered by Komet to you under this Agreement will be delivered via mail, email or fax. Any notice delivered by you to Komet will be delivered to the Komet address set forth in the applicable Order.
12.3. Waiver; Severability. Failure to enforce a provision of this Agreement will not constitute a waiver. If any part of this Agreement is held unenforceable, the validity of all remaining parts will not be affected.
12.4. Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Services are provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List.
12.5. Construction. Section headings in this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” and words of similar import mean “including, but not limited to”.
12.6. Governing Law. This Agreement is governed by the laws of the State of Florida, United States of America (excluding its conflict of law rules), and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in Miami, Florida will be the exclusive jurisdiction for disputes arising out of or in connection with this Agreement.
12.7. Third Party Rights. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
12.8. Order of Precedence. With respect to any inconsistency between this Agreement and an Order, the terms of the Order shall supersede and control over any conflicting or additional terms and conditions of this Agreement.
12.9. Entire Agreement. This Agreement, including accepted Orders and any amendments hereto, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This Agreement may be amended only in writing signed by authorized representatives of both parties.