Subscription Service Agreement

Kazoo Subscription Service Agreement

This Subscription Service Agreement is entered into by and between Kazoo, Inc., a Delaware corporation, with an address for the purposes of this Agreement at 206 E 9th St, Suite 1502, Austin, TX 78701 (“Kazoo”) and the customer identified in an Order Form (“Customer”) effective as of the date the Order Form that references this Subscription Service Agreement is signed by Customer (“Effective Date”).  As used herein, references to the “Agreement” means this Subscription Service Agreement, all Order Forms hereunder, subsequent amendments, and such other documents, attachments, and exhibits that the Parties’ authorized representatives mutually agree to in writing.

In consideration of the mutual promises contained herein, the parties agree as follows:

1. DEFINITIONS

1.1 “Customer Data” means any data, information, or material provided to Kazoo or submitted by Customer or Users in the course of using the Service.

1.2 “Login” means a username and password assigned to an individual for purposes of accessing the Service.

1.3 “Maximum Users” means the maximum number of individuals that may be provided Logins as subscribed to by Customer and set forth in one or more Order Form(s).

1.4 “Order Form” means Kazoo’s standard order form that (i) specifies the Service(s) subscribed to by Customer; (ii) specifies the Maximum Users, subscription fees, and Subscription Term; (iii) is governed by and incorporated by reference into this Agreement; and (iv) is signed by authorized representatives of both parties.

1.5 “Service” means the software-as-a-service offering(s) subscribed to by Customer as identified in the Order Form(s), including any updates thereto and as may be made available as a mobile application

1.6 “Subscription Fee” means the recurring fee paid for access to the Service as set forth in one or more Order Forms.

1.7 “Subscription Term” means the duration for which Customer has subscribed to a Service as set forth in the applicable Order Form. 

1.8 “Third Party Services” means any products and services not provided by Kazoo and used by Customer in conjunction with the Service.

1.9 “User” means an individual for whom a Login has been provided.  

2. SERVICE

2.1 Provision of Service. Subject to the terms and conditions of this Agreement, Kazoo will provide Customer with access to and use of the Service for the duration of the Subscription Term.  Kazoo will provide support in accordance with Kazoo’s Service Level Agreement available within the Service, as may be updated from time to time provided that no such update materially reduces Kazoo’s support obligations. Kazoo may, at its sole discretion, modify the Service from time to time at no cost or expense to Customer provided any such modification will not, in any case, reduce the performance or functionality of the Service as it exists prior to such modification.  Kazoo reserves the right to add and/or substitute functionally equivalent services in the event of unavailability or end-of-life of a product or functionality within the Service.  Kazoo shall maintain industry-standard or better technical and organizational measures to maintain the security of the Service and Customer Data in Kazoo’s possession.  

2.2 Logins. Each individual accessing the Service must have a unique Login assigned by Customer.  Customer shall not deactivate a User’s access to the Service and assign such access to another individual, except when the User is no longer employed by, or performing services for Customer.  Customer shall promptly notify Kazoo in the event Customer becomes aware of any unauthorized use of a Login. 

2.3 Maximum Users. The number of Users that have Logins shall be limited to the Maximum Users.  In the event Customer exceeds the Maximum Users, Customer’s Maximum Users will increase in accordance with the Maximum User Increase pricing and quantities set forth in the relevant Order Form and Kazoo will invoice Customer for such increase.  Any increase in the Maximum Users shall be for the remainder of the then-current Subscription Term.  

2.4 License Restrictions. Customer shall not itself or through any employee, contractor, agent, or other third-party i) rent, lease, lend, sell, redistribute, reproduce, offer in service bureau, or sublicense the Service to any third party; ii) copy, decompile, reverse-engineer, attempt to derive the source code of, modify, or create derivative works of the Service, or any part thereof; or iii) access the Service for purposes of building or marketing a competitive product.  Customer shall not use the Service in a manner that infringes on the intellectual property, privacy, or other rights of and User or third parties.  Customer shall not transmit or upload any viruses or malicious code to or via the Service.

2.5 Customer Obligations. Customer is responsible for providing all hardware, software, networking, and communications capabilities necessary for Customer’s access to the Service.  Customer shall be responsible for the accuracy, quality, and legality of the Customer Data, including but not limited to, where legally required, obtaining each User’s consent to the inclusion or use of their personal and employment information in connection with the Service.  Customer is responsible for all activities conducted by each User and each User’s compliance with the terms of the Agreement. 

2.6 Points, Rewards, and Fulfillment Vendors. In connection with Kazoo’s Rewards and Recognition Service, Customer may set an allocation of points which Users may earn as a form of recognition from Customer and other Users (“Points”). Users may be eligible to redeem Points for items such as, but not limited to, goods, gift cards, experiences, and charitable donations (each, a “Reward”) fulfilled by Customer or, at Customer’s election, by Kazoo’s third-party vendors (“Fulfillment Vendors”). Fulfillment Vendors are subject to change at any time and without notice.  In the event a Reward cannot be fulfilled by a Fulfillment Vendor, Kazoo will credit the applicable Points back to the applicable User.  Except as set forth herein, Kazoo is not responsible for and makes no representations or warranties with respect to any Rewards or the performance of any Fulfillment Vendor.  Customer shall be responsible for establishing and monitoring rules for Users’ redemption of Points.  In the event of a fulfillment error with a Reward fulfilled by a Fulfillment Vendor, Kazoo will make commercially reasonable efforts to assist Customer in resolving the error with such Fulfillment Vendor. Points earned by Users have no cash value and cannot be used as a form of payment of any obligation to Kazoo or its Fulfillment Vendors. All Rewards fulfilled by a Fulfillment Vendor are non-returnable and non-refundable. Third Party Services.  Customer may elect to use Third Party Services with the Service.  Customer’s use of such Third Party Services is governed by and subject to the terms and conditions of such Third Party Services.  Kazoo makes no representations or warranties with respect to any aspect of such Third Party Services. 

3. INTELLECTUAL PROPERTY.

3.1 Reservation of Rights. All intellectual property rights in and to the Service remain the sole property of Kazoo and its licensors. Customer hereby assigns to Kazoo any suggestions, ideas, enhancement requests, or other feedback provided by Customer to Kazoo relating to the Service.  Kazoo owns all data, software, inventions, ideas, and other technology and intellectual property that it develops in connection with its products and the Service.

3.2 Rights in Data. As between Kazoo and Customer, Customer shall own all right, title, and interest in and to Customer Data. Customer hereby grants Kazoo, for the duration of the Subscription Term, a royalty-free license to display, host, copy, and use Customer Data to the extent reasonably necessary to provide the Service to Customer. Kazoo reserves the right to (but is not obligated to) remove any Customer Data at any time that, in Kazoo’s sole opinion, is in violation of this Agreement or any applicable law.  Kazoo may use Customer Data and information about how the Service is used to develop anonymized, hashed, aggregated, or other de-identified data for analytics purposes (“Statistical Data”).  Statistical Data shall not contain any information identifying Customer or any individual.  Kazoo retains ownership in all Statistical Data.  

3.3 Training Materials. Kazoo will provide certain materials to support Customer’s internal launch and use of the Service. Subject to the terms of this Agreement, Kazoo hereby grants to Customer a non-exclusive license to distribute any such materials in electronic and print format during the Subscription Term solely for internal use for purposes of training and communicating information about the Service to its Users and employees.

4. PAYMENT.

4.1 Fees. Customer shall pay all fees set forth in all Order Forms.  Subscription Fees will be invoiced annually in advance.  All processing, shipping, and handling fees for Rewards fulfilled by Fulfillment Vendors will be included in the cost of the Rewards set forth in the Service.  Customer will be charged for Rewards via the payment method for Reward fulfillment set forth in the initial Order Form upon approval of redemptions within the Service. 

4.2 Fulfillment Funds.  Customer shall pay for Rewards fulfilled by Fulfillment Vendors via a fund established by Kazoo and funded by Customer (“Fulfillment Fund”).  Upon execution of the initial Order Form, Kazoo will invoice Customer to fund the Fulfillment Fund and may periodically invoice Customer as may be necessary to maintain sufficient funds in the Fulfillment Fund.  Customer is solely responsible for maintaining sufficient funds in the Fulfillment Fund.  In the event funds in the Fulfillment Fund are insufficient to pay for Reward redemptions, Rewards fulfilled by Fulfillment Vendors will be suspended until additional funds are received for the Fulfillment Fund. 

4.3 Payment Terms.  All invoices will be due and payable upon receipt. All Fees are non-refundable and are payable in U.S. dollars. Any fees remaining unpaid for more than thirty (30) days past their due date shall accrue interest at a rate of the lesser of one and one-half (1.5%) percent per month or the highest rate allowed by law. Kazoo may also (at its discretion and in addition to other remedies it may have) suspend access to the Service if any invoice remains unpaid for more than 30 days.  

4.4 Taxes. The fees do not include local, state or federal sales, use, value-added, excise or personal property or other similar taxes or duties, and any such taxes shall be assumed and paid by the Customer except those taxes based on the net income of Kazoo. To the extent use or sales tax applies to any Reward redeemed in connection with the Service or a Reward is deemed taxable income or employee compensation under applicable tax law, Customer will be solely responsible for any applicable sales or use tax and income and employment tax withholdings, and will otherwise ensure its and its Users’ compliance with applicable tax law. Tax implications of any charitable donations facilitated via the Service will be strictly managed by Customer. Kazoo shall have no liability for any taxes owed by Customer or its Users as a result of use of the Service or redemption of Rewards.

5. WARRANTIES AND DISCLAIMER.

5.1 Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and that it has no outstanding agreement or obligation that conflicts with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.

5.2 Limited Warranty on Service. Kazoo represents and warrants, for the duration of the Subscription Term, that the Service will materially perform in conformance with this Agreement and any written documentation made available to all customers.  As Customer’s exclusive remedy for any claim under this warranty, Customer shall promptly notify Kazoo in writing of any non-conformity and, provided that such non-conformity is determined to be Kazoo’s responsibility, Kazoo shall, within thirty (30) days of its receipt of Customer’s written notice, (i) correct any material reproducible non-conformity; (ii) provide Customer with a plan for correcting such non-conformity; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts by Kazoo, Kazoo or Customer may terminate the affected Service.  Kazoo’s sole and exclusive obligation in the event of a termination hereunder shall be to refund a prorated amount of the applicable prepaid Subscription Fee for the applicable Service for the period beginning on the date of the notice of non-conformance through the remainder of the Subscription Term. Kazoo is not responsible for any claimed breach of warranty caused by: (i) modification made to the Service by anyone other than Kazoo or its agents; or (ii) Customer’s use of the Service in violation of this Agreement.   

5.3 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IS PROVIDED “AS IS” AND KAZOO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. KAZOO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY (i) IN RELATION TO REWARDS OR FULFILLMENT VENDORS, (ii) THAT THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR (iii) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 

5.4 Trial or Beta Services. From time to time Kazoo may invite Customer to try, at no charge, features or functionality that are not generally available to customers (“Trial Services”).  Customer may elect to use Trial Services at its discretion. Trial Services are provided for evaluation purposes, not part of the Service until made generally available to customers, may contain bugs or errors, and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED “SERVICE” FOR PURPOSES OF KAZOO’S OBLIGATIONS HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Kazoo may discontinue Trial Services at any time in Kazoo’s sole discretion and may never make them generally available.

6. CONFIDENTIALITY.

6.1 Definition. “Confidential Information” means, without limitation, any proprietary information, customer information, product plans, inventions, technical data, trade secrets, know-how, the terms of this Agreement, Customer Data, or other business information, in each case disclosed or made available by a party (“Discloser”) to the other party (“Recipient”) whether orally or in writing hereunder. 

6.2 Non-Use and Non-Disclosure.  The Recipient shall, with respect to Confidential Information of the Discloser: (i) not disclose such Confidential Information to any third party at any time and limit disclosure to its employees, contractors, or its legal, financial and accounting advisors having a need to know and who have agreed to be bound by confidentiality obligations that are at least as restrictive as the terms of this Agreement; and (ii) protect the confidentiality of the Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care.  Notwithstanding the foregoing, Recipient may disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or a government body, provided that Recipient must give Discloser prompt written notice and obtain or allow for a reasonable effort by Discloser to obtain a protective order prior to disclosure.

6.3 Exclusions. The obligations with respect to Confidential Information shall not apply with respect to Confidential Information Recipient can demonstrate: (i) is now or becomes publicly available through no fault of Recipient; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to Recipient without obligation of confidentiality prior to such disclosure; or (iv) is, at any time, independently developed by Recipient without use of Discloser’s Confidential Information.

7. LIMITATION OF LIABILITY 

7.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, OR LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITIES ARISING OUT OF EITHER PARTY’S BREACH OF SECTION 6 (“CONFIDENTIALITY), EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR CUSTOMER’S BREACH OF SECTION 2.4 (“LICENSE RESTRICTIONS”).

7.2 IN NO EVENT SHALL EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER TO KAZOO HEREUNDER DURING THE TWELVE- MONTH PERIOD PRECEDING THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.  THE FOREGOING LIMITATIONS SHALL NOT APPLY TO LIABILITIES ARISING OUT OF EITHER PARTY’S BREACH OF SECTION 6 (“CONFIDENTIALITY), EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR CUSTOMER’S BREACH OF SECTION 2.4 (“LICENSE RESTRICTIONS”).  

8. INDEMNIFICATION.

8.1 By Kazoo. Kazoo shall defend Customer from and against any claim, demand, or action brought by a third party against Customer, and indemnify and hold Customer harmless from any third party damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from any allegation that the Service infringes any United States patent, copyright, or trade secret of a third party.  Notwithstanding the foregoing, Kazoo will have no liability for any infringement claim of any kind if the claim results from: (i) modification of the Service made by anyone other than Kazoo or its agents; (ii) unauthorized or unlicensed use of the Service; (iii) Customer Data; or (iv) or compliance by Kazoo with designs, plans or specifications furnished by or on behalf of Customer.

8.2 By Customer. Customer shall defend Kazoo from and against any claim, demand, or action in any form brought by a third party (including without limitation any User) against Kazoo, and indemnify and hold Kazoo harmless from any damages, liabilities, losses, costs, and expenses, including reasonable attorneys’ and experts’ fees, including in each case any of the foregoing that are finally awarded to the third party by a court of competent jurisdiction or otherwise owed in any settlement, in each case to the extent arising from or related to: (i) use of the Service by Customer or any User in a manner that breaches Section 2.4 (“License Restrictions”) of this Agreement; (ii) any Customer Data that violates the rights (including any privacy and intellectual property rights) of a third party or User, and (iii) Customer’s violation of an applicable law, rule, regulation or agreement to which Customer is subject.

8.3 Rights Upon Infringement. If Customer’s use of the Service is, or in Kazoo’s opinion is likely to be, enjoined, Kazoo may, at its sole option and expense: (i) procure for Customer the right to continue using the same under the terms of this Agreement; (ii) replace or modify the Service so that it is non-infringing; or (iii) if options (i) and (ii) above cannot be accomplished despite Kazoo’s reasonable efforts, Kazoo may terminate this Agreement and Customer’s rights to the Service and refund a pro-rated portion of any pre-paid Subscription Fees for the period beginning on the effective date of termination through the end of the then-current Subscription Term.

8.4 Procedure. If one party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other party (the “Indemnitor”) has an obligation of indemnity hereunder, the Indemnitee will, within fifteen (15) days of receipt of such notice, give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim.  The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure.  The Indemnitee shall not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim. The Indemnitor shall immediately assume full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense.  The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim.  The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim.  The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor.

8.5 Exclusive Remedies. The provisions of this Section 8 set forth Kazoo’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any intellectual property rights of any kind.

9. Term and Termination.

9.1 Agreement Term. The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the expiration or termination of all Order Forms, unless otherwise terminated earlier as provided hereunder.

9.2 Subscription Term. The Initial Subscription Term shall be specified in the relevant Order Form. Upon the expiration of the Initial Subscription Term, the Subscription Term will automatically renew for successive 12-month terms, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.  The Initial Subscription Term and any Renewal Term are collectively the “Subscription Term.”  Unless otherwise agreed in an Order Form, upon expiration of the Initial Subscription Term and each Renewal Term, Kazoo may increase the Subscription Fees, provided the per-unit Subscription Fees shall increase by no more than ten-percent (10%) of the Subscription Fees of the prior 12-month period.

9.3 Termination for Cause. Either party may terminate the Agreement immediately upon written notice (i) in the event the other party commits a non-remediable material breach of the Agreement; (ii) the other party fails to cure any remediable material breach within 30 days of being notified in writing of such breach; (iii) the other party becomes insolvent, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding.  

9.4 Effect of Termination for Cause.  In the event of termination of this Agreement due to a default by Kazoo, Kazoo shall refund, on a prorated basis, any prepaid fees for the Service for the period beginning on the effective date of termination through the end of the then-current Subscription Term.  In the event of a termination of the Agreement due to a default by Customer, Customer shall pay for all amounts due and owing for the Service for the duration of the Subscription Term, and any other fee or charge associated with Customer’s use of the Service as set forth in the Agreement.

9.5 Survival. Sections titled “Definitions”, “Term and Termination”, “Fees”, “Intellectual Property,” “Disclaimers of Warranties”, “Limitation of Liability,” “Indemnification,” “Confidential Information”, and “Miscellaneous” inclusive, shall survive any termination of this Agreement.

10. Miscellaneous.

10.1 Compliance with Applicable Law.  Each party agrees to abide by all applicable local, state, national and foreign laws, treaties and regulations, including applicable export control laws, in connection with i) in the case of Customer, Customer’s use of the Service; and ii) in the case of Kazoo, Kazoo’s provision of the Service.  Customer is responsible for compliance with any laws that may apply in connection with Rewards facilitated by the Service, including without limitation any federal, state, or local employment and/or tax laws. 

10.2 Governing Law and Jurisdiction. The Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws provisions.  Any legal action or proceeding arising under the Agreement shall be brought exclusively in the federal or state courts located in Delaware, and the parties hereby consent to exclusive jurisdiction of such courts. The parties expressly agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to this Agreement.

10.3 Relationship of Parties. The parties are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other party’s prior written consent. 

10.4 Attorneys’ Fees. In any court action at law or equity that is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled.

10.5 Equitable Relief. Both parties agree that a material breach of the confidentiality provisions of this Agreement or restrictions set forth herein may cause irreparable injury to other party for which monetary damages alone would not be an adequate remedy, and therefore the party shall be entitled to seek equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.

10.6 Publicity. Customer authorizes Kazoo to publicly disclose that Customer is a customer and to use Customer’s name and logo to identify Customer as a customer on its website, in marketing materials, and in a joint press release.  Kazoo agrees to obtain Customer’s approval of the text of any such press release prior to publication and Customer agrees that such approval will not be unreasonably withheld or delayed.  Following an agreed-upon press release, Kazoo may use the material disclosed in the press release on Kazoo’s website and in marketing materials.  

10.7 Force Majeure. Except for Customer’s payment obligations, neither party shall be deemed to have breached any provision of the Agreement as a result of any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, network failures, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third party telecommunications or Internet equipment or service, other catastrophes, or any other occurrences which are beyond such party’s reasonable control.

10.8 Assignment. Neither party may assign its interest in this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, either Party may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, without prior notice to the other party or the other party’s consent, provided that the Agreement is not assigned to a direct competitor of the other party.

10.9 Severability.  The invalidity or unenforceability of any provision hereof, or any terms thereof, shall not affect the validity of the Agreement as a whole, which will at all times remain in full force and effect.

10.10 Waiver. The failure of either party to enforce at any time the provisions of the Agreement, the failure to require at any time performance by the other party of any of the provisions of the Agreement, or the express waiver by either party of any provision, condition or requirement of the Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. 

10.11 Notices. All notices required or permitted under the Agreement will be in writing and delivered by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth in the in the Order Form or to such other address as may be specified by either party to the other in accordance with this Section.

10.12 Entire Agreement. This Agreement and the associated Order Forms constitute the entire agreement of the parties with respect to the subject matter contemplated herein, and supersedes any prior representations, agreements, negotiations, or understandings between the parties, whether written or oral, with respect to the subject matter hereof. This Agreement may not be modified except by written instrument signed by both Parties and referring to the particular provisions to be modified.  All terms, conditions, or provisions on a purchase order shall be of no force and effect notwithstanding the acceptance of such purchase order after the date of this Agreement.  In the event of a conflict between the terms of this Agreement and an Order Form, the terms set forth in the Order Form shall control.  This Agreement is binding upon and inures to the benefit of, the parties and their respective permitted successors and assigns.