TERMS OF SERVICE AGREEMENT
These subscription terms and conditions (“Terms of Service”) together with your order form (“Order Form”) (Terms and Service together with Order Form – the “Agreement”) shall govern the relationship between you and us, whereby we own and operate a software which is provided to you on a Software as a Service (SaaS) basis that includes multiple management system services by means of the internet (the “Services”).
Where used in this Agreement, references to: (a) “you” and/or “your” means the individual or entity which applied to receive the Services from us, and (b) “we”, “our”, “us” means PROFTIT LTD., a company incorporated under the laws of the State of Israel, with offices at 2 Derech Ben Gurion, Ramat Gan,
Israel (the “Company”) and, as applicable, any of its directors, officers, shareholders, employees,advisors, contractors, subsidiaries and any of its affiliated corporate entities.
Your acceptance of this Agreement shall be established by: (1) checking the check box indicating your acceptance at the bottom of the Agreement and (2) by executing an Order Form, according to which you agree to the terms and conditions of this Agreement.
Capitalized terms shall have the meanings set forth in this section, or in the section where first used in these Terms of Service and/or the Order Form (where applicable).
1.1. “Super User” means an employee that you select to be an authorized administrator user to the Services, who will receive a username and password issued by us, and have the authority to access the Services and to open additional user names and passwords for employees at his own discretion, as detailed in the Order Form or as may be added or changed from time-to-time at your written request.
1.2. “Beta Services” means that the Services or its functionality may be made available to you in the form of a demo tryout at no additional charge, while it is clear that these demo tryout Services or its functionality are designated as beta, pilot, limited release, developer preview, non- production, evaluation, or by a similar description.
1.3. “Client Content” means any such files, software, scripts, multimedia images, graphics, audio, video, text, data or other objects originating or transmitted from any website owned or operated by you and routed to, passed through and/or cached on or within, our network or otherwise transmitted or routed while you use our Services.
1.4. “Order Form” means the ordering document specifying commercial details regarding the Services to be provided hereunder that is entered between you and us for a specified term once signed by both Parties.
1.5. “Our Fees” means the amount due and payable to us, as calculated based solely on our internal system and in accordance with the terms of this Agreement.
1.6. “Intellectual Property Rights” means any and all now known or hereafter existing worldwide: (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing.
1.7. “Party” or “Parties” means us and/or you, as applicable.
1.8. “Service Level Agreement” means our standard service level agreement (SLA) which can be viewed at www.proftit.com
2. LICENSE GRANT AND RESTRICTIONS
2.1. Subject to your compliance with the Agreement (including, without limitation, all payment obligations), we hereby grant to you a non-exclusive, non-transferable, and non-sub-licensable license, to use and access the Services for your own internal purposes during the Term, solely in accordance with this Agreement and any other restrictions or obligations mutually agreed upon by the Parties. Except as expressly set forth in the Agreement, no express or implied license or right of any kind is granted to you with respect to us and/or any of our Services or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the us. All rights not expressly granted to you herein are reserved solely to us.
2.2. You are prohibited from doing any of the following: (a) sub-license your right to access and/or use the Services to any third party; (b) permit, rent, lease, loan, export or sell access to any person of the Services other than any Authorized Users; (c) provide the Services to any third parties; (d) interfere with, disrupt, alter, translate, or modify the Services or any part thereof, or create an undue burden on the Services or any networks or services connected to the Services (e) reverse- engineer or access the Services in order to: (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions or graphics to the Services; or (iii) copy any ideas, features, functions or graphics of the Service; (f) use the Services in any way that could cause damage to the Services or in any way that is unlawful, illegal, fraudulent or harmful; (g) introduce software or automated agents or scripts into the Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip data from the Services; (h) perform or publish any performance or tests or analyses relating to the Services or the use thereof, other than solely for your internal use; (i) republish or redistribute content or material from the Services; (j) make any changes to the Services.
2.3. As between you and us, you are and shall be solely responsible for, any of your Client Content (including, without limitation, creating, renewing, updating, deleting, editing, and controlling all aspects of the Client Content). You agree to adhere to generally accepted industry best practices for encrypting both your Client Content and the content of any other of your clients. You agree to comply at all times with any and all applicable laws and regulations with respect to your use of the Services. Without limiting the foregoing, you agree not to use the Services in connection with any: (a) infringement or misappropriation of any Intellectual Property Rights; (b)
defamation, libel, slander, obscenity, or violation of the rights of privacy or publicity of any person or entity; or (c) any other offensive, harassing, or illegal conduct.
2.4. We shall provide to you the Services via a web-based facility which will be accessible by Authorized Users once you/they receive a unique username and password. The number of Authorized Users and the permission levels of each Authorized User shall be determined by the Super User. You will provide to us any information and other assistance as we require in order to create usernames and passwords for all Authorized Users, and we will verify all Authorized User requests for account passwords. Each Authorized User’s username and password may only be used to access the Services during one (1) concurrent login session at a time. We reserve the right to change or update the usernames and passwords at our sole discretion from time to time, and shall inform you of such as soon as possible.
2.5. From time to time, we may make Beta Services available to you at no charge, you may choose to try such Beta Services or not at your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, our reservation of rights and your obligations concerning the Services, shall apply equally to your use of the Beta Services. Unless otherwise stated, a Beta Services trial period will expire at our sole discretion or on a date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue the Beta Services at any time in our sole discretion and may never make them available. You acknowledge that we have no liability for any harm or damage arising out of or in connection with the Beta Services.
2.6. You acknowledge and agree that you will be fully responsible on behalf of any Authorized Users for all activities that occur under such usernames and passwords. You will ensure that each username and password issued to an Authorized User will be used only by that Authorized User. You shall maintain the confidentiality of all Authorized Users’ usernames and passwords and you will notify us immediately of any actual or suspected unauthorized use of any Authorized User’s account, username, or password, or any other breach or suspected breach of the Agreement.
2.7. We reserve the right to terminate or block any Authorized User’s username or password that we reasonably believe may have been used by an unauthorized third party and/or may have been used unlawfully and/or been abused and we shall provide you with prompt notice of any such suspicion.
3. YOUR RESPONSIBILITIES
You hereby declare and undertake toward us that:
3.1. By entering into this Agreement or performing any of your obligations under it, you will not be in breach of any court order or any express or implied terms of any contract or other obligation binding on you and undertake to indemnify us against any claims, costs, damages, liabilities or expenses which we may incur as a result if you are in breach of any such obligations.
3.2. Your actions must be carried out in a manner that is professional, proper and lawful under applicable legislation, rules, regulations or laws and otherwise comply with the terms of this Agreement.
3.3. You are solely responsible for ensuring that your use of the Services is permitted under the applicable laws of jurisdiction and you agree to indemnify and hold us harmless if your use of the Services is in violation of any applicable law or in our sole discretion, otherwise unsuitable.
3.4. You shall not use the Services in any way that could: (a) infringe ours and/or any third party’s intellectual property rights; (b) copy or resemble our and/or any third party’s property in whole or in part; or (c) disparage us and/or any third party or otherwise damage our and/or any third party’s goodwill or reputation in any way;
3.5. You acknowledge that the Services are never entirely free from defects, errors, bugs, security vulnerabilities or anything of similar nature, and that we give no warranty or representation that the Services will be wholly free from defects, errors, bugs, security vulnerabilities or anything of similar nature.
3.6. You shall not Breach any of the provisions of this Agreement.
3.7. It is clarified that you undertake to indemnify and hold harmless us against any and all claims raised by any third parties with respect to the Services.
4. TRADEMARKS AND INTELLECTUAL PROPERTY
4.1. For the purpose herein “IP Rights” shall include, but not be limited to, any information concerning us, our business and financial activities, including but not limited to patents, patent applications, trademarks, copyrights and other intellectual property, and information relating to the same, technologies and products (actual or planned), know how, inventions, research and development activities, discoveries, trade secrets and industrial secrets, and also confidential commercial information relating to investments, investors, service providers, employees, customers, suppliers, marketing plans, etc., all the above – whether documentary, written, oral or computer generated, whether or not patentable, copyrightable or protectable as trade secrets and whether or not provided by us or by any third party.
4.2. All Intellectual Property Rights and/or IP Rights, including but not limited to, indications, trademarks, service marks, trade names, logos, symbols, business names and/or brand names and associated goodwill in connection with, appearing on, or incorporated into, the Services and/or any technology and/or networks and/or servers in connection with the Services, is and shall remain our exclusive property.
4.3. Other than as provided in the Agreement, neither Party grants any rights in or to its’ own intellectual property to the other Party, and neither Party may remove, destroy or alter the other Party’s intellectual property used in connection with the Services. Each Party agrees that it shall not challenge, or assist others to challenge, the rights of the other Party (or its suppliers or licensors) in such Party’s intellectual property. Other than as set forth in the Agreement, all us by a Party of the other Party’s intellectual property shall require the other Party’s prior written
approval and shall be subject to the other Party’s logo and trademark usage guidelines.
5. FEES AND PAYMENT
5.1. In consideration for the provision of the Services and the performance of our obligations pursuant to this Agreement, you shall pay us a monthly Fee as detailed in the Order Form; you further commit to a minimum number of 10 (ten) users to access the Services. All payment obligations are non-cancellable, and other than as provided in the Agreement, all amounts paid are non-refundable.
5.2. We shall send you a monthly invoice at the beginning of each calendar month. All monthly fees must be paid by you no later than the 5th of the calendar month, regardless of whether you received an invoice or not. Alternatively, you may provide us with valid and updated credit card information and you shall authorize us to charge such credit card with respect to the Fee payment. .
5.3. Without derogating from the above, any delay of payment of our Fees will incur an interest charge of 1.5% (one and a half percent) per month, and in case we are required to use legal counsels and/or suffer any costs associated with collection of Our Fees, you will be charged with such legal and collection costs (in addition to our Fees). In case in which you fail to pay our Fees in a timely manner, we may suspend the Services until the said overdue Fees are paid, including an incurred interest, or terminate this Agreement with immediate effect.
5.4. You may not, under any circumstance, deduct, set-off or withhold any sums due to us as our Fees.
5.5. Payment of our Fees is exclusive of any tax, charge or levy (including, but not limited to, VAT), and you shall bear all liability to any tax, charge or levy (including, but not limited to, VAT) incurred thereby with respect to the Fee.
6.1. You hereby grant permission to us to copy, reproduce, store, export, adapt, edit, translate and any other act of similar nature, all data, works and materials’ of yours which were uploaded and/or stored and/or transmitted and/or supplied and/or generated by the Services, including all information relating to your customers, such as name, user names, email address, home address, phone numbers, passwords, expiration dates and card verification codes, as well as all trading history and data (“Database”), to the extent reasonably required for our obligations of performance and to exercise any rights under this Agreement.
6.2. You warrant to us that the Database and/or the use of the Database does not breach the provisions of any law, statute or regulation and/or infringe the intellectual property rights or any other legal rights of any third party.
6.3. We shall keep the Database confidential and shall not disclose the Database to any person without your prior written consent. Notwithstanding the aforementioned, we may disclose the Database to: (i) our associated parties who require access to the Database in respect of their work
performance; or (ii) any judicial or governmental order or request pursuant to disclosure requirements by law or regulation.
6.4. Without derogating from the aforementioned, it is clarified that any information including, but not limited to, the Database, shall not be considered as confidential information, in the event that: (i) any of the information is known to us prior to the Effective Date and is not subject to obligations of confidentiality; or (ii) any information is or becomes publicly known through no act or default of our own; (iii) is obtained by us from a third party under circumstances where we had no reason to believe that a breach of confidentiality has occurred.
6.5. You warrant that you have the legal right to disclose all Database information to us under or in connection with this Agreement, and that you have in place appropriate security measures against unlawful or unauthorized use of and/or loss or corruption of the Database.
6.6. It is clarified that you undertake to indemnify and hold us against any and all claims raised by any third parties with respect to the Database.
7. SUPPORT, DATA, AND OPERATIONAL METRICS
7.1. We have in place appropriate and security measures against unlawful or unauthorized use of and/or loss of corruption of the Services. During the Term we shall provide technical support for the Service in accordance with our up-to-date standard support terms, a current version of which can be viewed at www.proftit.com
7.2. You shall be solely responsible for supporting and maintaining the availability of your websites, the connectivity of your websites to the Internet, and all Client Content, IP addresses, domain names, hyperlinks, Databases, applications and other resources as necessary for you to operate and maintain your websites to meet the business requirements and to utilize the Services.
7.3. Although we do operate such a back-up system in real time, you acknowledge that we are not obligated in any way to back-up any data or information that may be stored within the Services and that we reserve the right to delete any data and/or information and/or files stored on our system via the Services at any time after seventy-two (72) hours. As such, you agree that you are responsible for keeping and maintaining your own copy of all data, information and files, once they become available to you via the Services system. We strongly recommend that you create back-up copies of any data, information and files.
7.4. In case of termination of the Agreement your access to the Services will immediately cease, however, at your request we will endeavor to use reasonable efforts to make available to you any data and/or information and/or files not already available to you. In the event of a material breach of the Agreement by you, including, without limitation, non-payment of the Fees, we reserve the right to immediately withhold any and all data and/or information and/or files.
7.5. You hereby grant to us the perpetual, irrevocable right to use, reproduce, modify, and otherwise exploit your Database and/or information and/or files during the Term of the Agreement, for the purpose of improving and enhancing the Services, monitoring the performance of the Services, and performing internal research and development for the provisioning of our services.
7.6. We shall not assign, transfer, sell, license, sublicense, or grant any rights to the Client Data to any other person or entity without your explicit written permission, however, such restrictions shall not prevent us from disclosing any Client Data pursuant to an order or requirement of a court, administrative agency, or other governmental body; provided, that we provides reasonable notice to you of such, to enable you to contest such order or requirement, unless we are prevented from doing so by force of law.
8. LIMITATION OF LIABILITY
8.1. You acknowledge and consent that under no circumstances for whatever reason will we bear any responsibility and/or liability with respect to the Services and/or your use of the Services and you agree to waive and hold us harmless for any losses caused, directly or indirectly, to you and/or by you to any third party, with respect to the Services.
8.2. We assume no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, bugs, viruses, communications line failure, theft or destruction or unauthorized access to, or alteration of, and in respect to, the Services.
8.3. We are not responsible for any problems or technical malfunction of computer online systems, servers or providers, hardware, software, failure due to technical problems or traffic congestion on the internet (or inaccessibility of the internet) or incompatibility with respect to operating the Services. We make no representations about the suitability, reliability, availability, timeliness and accuracy of the Services. All Services are provided “as is” without warranty of any kind. We hereby disclaim all express or implied warranties with respect to the Services, including but not limited to, warranties and conditions of merchantability, satisfactory quality, fitness for a particular purpose, completeness or accuracy, non-infringement of intellectual property rights and/or third party rights and/or applicable laws, regulations and directives, or that the Services will be uninterrupted, timely, secure or error free.
8.4. We reserve the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone taking any actions and/or omissions that are believed to violate this Agreement.
8.5. IN NO EVENT SHALL WE BE LIABLE TO YOU AND/OR TO ANYONE ON YOUR BEHALF AND/OR TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, REVENUE AND/OR DATA INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION FOR CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, OR INABILITY TO USE THE SERVICES (IN PART OR IN WHOLE) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY US, INCLUDING BUT NOT LIMITED TO THE QUALITY, ACCURACY, OR UTILITY OF THE SERVICES, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT WE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE CANNOT AND DO NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT THE OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED AND/OR ERROR-FREE.
8.6. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.7. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU WAIVE AND HOLD US HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION AND/OR OMMISSION TAKEN BY US DURING AND/OR AS A RESULT OF OUR INVESTIGATIONS AND/OR FROM ANY ACTION AND/OR OMISSION TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER US OR BY LAW ENFORCEMENT AUTHORITIES.
9.1. You agree to indemnify, defend and hold harmless us, our affiliates, employees, directors, shareholders, officers and agents (collectively “Representatives”) against all liabilities, losses, judgments, suits, actions, proceedings, claims, obligations, injuries, penalties, expenses and disbursements, damages and costs, including reasonable attorney’s fees (collectively, “Losses”), resulting from or arising out of any breach by you and/or any third party on your behalf, and/or acts or omissions by you in connection with this Agreement, including but not limited to your breach of the Agreement and/or your use of the Services and/or any Client Data and/or Database and/or content on your websites and/or your non-compliance with local law and/or your failure to pay any taxes, levies, or duties imposed by taxing authorities as required in this Agreement.
9.2. You shall promptly notify us in writing of any threatened or actual claim or suit and we shall have sole control of the defense or settlement of any claim or suit. You will cooperate with us (at your expense) to facilitate the settlement or defense of any claim or suit, and you shall not settle any claim or suit in a manner which results in an admission of liability by us without our prior written consent.
9.3. We don’t warrant, guarantee or represent that the use of the Services will not give rise to any legal liability on your part or on the part of any other third party, and you undertake to hold harmless and indemnify us against any and all claims raised by you and/or by any third party.
9.4. Without prejudice to any other rights or remedies available to us under this Agreement or otherwise, we shall be entitled to set off any payments otherwise payable by us to you hereunder, against any liability of you to us, including (but not limited to) any claims we have against you resulting from or arising from, your breach of this Agreement and/or your use of the Services.
10. CONFIDENTIAL INFORMATION
10.1. Any Intellectual Property Rights and/or additional information and/or confidential information and/or proprietary data (“Confidential Information”) provided by one Party (“Discloser”) to the other Party (“Recipient”) shall be deemed Confidential Information of the Discloser. Both Parties agree to not copy or reverse engineer the other Party’s software. The Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know and that is bound by written confidentiality obligations at least as strict as those contained herein. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement.
separately, their subsidiaries and their assigns. Nothing in this Agreement will be deemed to grant either Party a license or any other right in or to any of the Confidential Information.
10.3. At all times, both during the Agreement and after the termination of this Agreement, the Parties will keep in confidence and trust all Confidential Information, and will not use or disclose any Confidential Information or anything relating to it without the prior written consent of the other Party.
10.4. the Parties may use the Confidential Information solely for the purpose of fulfilling their obligations towards the other Party and only for the best interests of the other Party, and shall not use the Confidential Information for personal use or to compete with the other Party at any time, or provide such Confidential Information to a third party, or produce or process any service and/or product making any use of the Confidential Information or derivatives thereof.
10.5. Upon termination of this Agreement, for whatever reason, or upon either Party’s request at any time, the Parties will promptly deliver to the other Party all Confidential Information along with all copies, extracts and other objects or items in which it may be contained or embodied, as well as all documents and materials of any nature pertaining to its engagement with the other Party, and will not take and/or make use of any documents or materials or copies thereof containing any Confidential Information.
11. TERM AND TERMINATION
11.1. This Agreement will enter into force and terminate in accordance with the provisions of the Order form; where the Order Form does not include provisions to this effect, the Agreement will enter into force upon the execution of the Order Form by you.
11.2. Either Party may terminate this Agreement at any time for convenience by giving written notice to the other Party 30 (therein) days in advance (the “Notice Period”).
11.3. If either Party breaches the terms of this Agreement, the other Party may terminate this Agreement by providing the defaulting Party with a 7 (seven) days’ advance written notice (the “Breach Notice Period”), unless the defaulting Party cures the breach and its effects within such Breach Notice Period.
11.4. Upon termination of the Agreement, for any reason: (a) your right to use and access the Services shall be terminated; (b) all usernames and passwords associated with Authorized Users shall be deactivated; (c) you shall immediately discontinue use of the Services; (d) you shall immediately pay all outstanding Fees due to us through the date of termination; and (e) each Party will promptly return to the other Party (or, if the other Party requests it, destroy) all confidential information of such Party. You shall pay us within 7 (seven) days any and all of our Fees and/or any incurred interest which remains outstanding until the date of termination.
11.5. Upon the termination, the provisions of this Agreement shall cease to have effect, save for the following provisions of this Agreement which shall survive and continue to have effect, in accordance with their express terms or otherwise indefinitely: Section 2 (License Grant and Restrictions), Section 3 (Your Responsibilities), Section 4 (Trademarks and Intellectual Property), Section 5 (Fees and Payment), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidential Information), Section 11 (Term and Termination) and Section 12 (General).
12.1. Governing Law and Jurisdiction. The Agreement and any action related thereto will be governed and interpreted by and under the laws of Israel, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and shall be subject to the exclusive jurisdiction of the courts of Tel Aviv.
12.2. Severability. If any provision of the Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
12.3. Waiver. Any waiver or failure by a Party to enforce any provision of the Agreement on one occasion will not be deemed a waiver of that or any other provision on that occasion, nor any other occasion.
12.4. No Assignment. You shall not assign, subcontract, delegate, or otherwise transfer the Agreement or its rights and obligations herein, in whole or in part, by operation of law or otherwise, whether without obtaining our prior written consent, which consent shall not be unreasonably withheld, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
12.5. Force Majeure. Any delay in the performance of any duties or obligations of a Party will not be considered a breach of the Agreement if such delay is caused by events beyond the reasonable control of that Party (including, for example, labor disputes, shortages of materials, fire, earthquake, flood, or other acts of God (each, a “Force Majeure Event”); provided, that the delayed Party uses reasonable efforts, under the circumstances, to notify the other Party of the existence of the Force Majeure Event and works to resume performance as soon as possible.
12.6. Independent Contractors. The relationship of the Parties is that of independent contractors, neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of or bind the other Party.
12.7. Notices. All notices pertaining to this Agreement will be given by email to the email addresses provided in the Order Form. Any notice sent by email shall be deemed received on the earlier of an acknowledgement being received or 48 hours from the time of transmission.
12.8. You understand that we may at any time (directly or indirectly) enter into similar agreements to the Agreement with others on the same or different terms as those provided to you in this Agreement and that such terms may be similar, and even competitive, to you.
12.9. Each of the parties acknowledges and agrees that in entering into this Agreement, it has not relied on any statement, representation, guarantee warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in the Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing. Nothing in this section shall limit or exclude any liability for fraud.
12.10. Entire Agreement. The Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matter. No modification of, amendment to, or waiver of any rights under the Agreement will be effective unless in writing and signed by an authorized signatory of each of the Parties. The Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. Unless agreed to in writing by us, the terms of any document that you submit to us that contains terms that are different from, in conflict with, or in addition to, the terms of the Agreement are hereby rejected by us, and shall be void and of no effect.
END OF TERMS