Master Services Agreement

This MASTER SERVICES AGREEMENT (“Agreement”) is dated as of the last date the Order is signed (“Effective Date”) and entered into between Wiretap Holdings I, LLC dba Wiretap Labs, a Colorado limited liability company (“Wiretap Labs”) and the Customer identified in the Order (“Customer”). Customer desires to use Wiretap Labs’s Decision Insights software as a services offering, pursuant to the terms and conditions of this Agreement. The parties agree as follows:

1. DEFINITIONS.

1.1 “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements).
1.2 “Wiretap Content” means content, data, and information that is owned by Wiretap Labs or any of its licensors that is provided or made available by Wiretap Labs through use of the Platform or as part of or in connection with Wiretap Labs’s provision of Services, including, but not limited to, articles, summaries, and engagement data available through the Platform. Wiretap Content does not include Customer Content.
1.3 “Customer Content” means the electronic content, information, and other data provided to Wiretap Labs or input into the Platform by or on behalf of Customer.
1.4 “Documentation” means any user materials, instructions, and specifications made available by Wiretap Labs to Customer for the Services.
1.5 “Order” means any written order document executed by Wiretap Labs and Customer setting forth the terms and conditions relating to the Services. Each Order is incorporated by reference into this Agreement.
1.6 “Platform” means the Wiretap Labs’s proprietary platform utilized by Wiretap Labs to provide the Software to Customer under this Agreement. The Platform does not include Customer’s connectivity equipment, Internet and network connections, hardware, software and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Services.
1.7 “Services” means, collectively, access to the Platform, Support Services, and the other services made available on, by, or through the Platform by Wiretap Labs under this Agreement, including, but not limited to, providing access to Wiretap Content to Customer via the Platform.
1.8 “Software” means Wiretap Labs’s proprietary software as a service offering as set forth in the applicable Order and made available through remote access by Wiretap Labs to Customer and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.
1.9 “Support Services” means Wiretap Labs’s standard technical support and Software maintenance.
1.10 “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform.
1.11 “Users” means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Services on behalf of Customer.

2. SERVICES.

2.1 Provision of Services. Subject to the terms and conditions of this Agreement, Wiretap Labs shall provide the Services to Customer and its Users.
2.2 Cooperation. Customer shall supply to Wiretap Labs the Customer Content along with access and personnel resources that Wiretap Labs reasonably requests in order for Wiretap Labs to provide the Services.
2.3 Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, Internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.
2.4 Third Party Offerings. Wiretap Labs may make access to or use of third-party software services, applications, or functionality that link to, interoperate with, or are incorporated into the Platform available to Customer (collectively, “Third-Party Offerings”). Customer acknowledges that Wiretap Labs does not own or control such Third-Party Offerings, they are made available as a convenience only, and are not part of the Platform or subject to any of the warranties, service commitments, or other obligations with respect to Platform under this Agreement and that such Third-Party Offerings are subject to their own terms and conditions. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and/or its Users and any Third Party Offering is solely between Customer and/or its Users and the applicable Third-Party Offering provider. Access to and use of any Third-Party Offering is at Customer’s own risk and is solely determined by the relevant third-party provider and is subject to such additional terms and conditions applicable to such Third-Party Offering. Wiretap Labs may disable or restrict access to any Third-Party Offerings on the Platform at any time without notice. Wiretap Labs is not liable for Third-Party Offerings or any Customer Content or other Customer data provided to a third party via a Third-Party Offering.

3. GRANT OF RIGHTS.

3.1 Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, Wiretap Labs hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable right to access and use the Platform for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement and subject to the usage limitations set forth in the applicable Order (the “Usage Limitations”). Wiretap Labs and its licensors reserve all rights in and to the Platform and the Services not expressly granted to Customer under this Agreement.
3.2 License to Wiretap Content. Subject to the terms and conditions of this Agreement, Wiretap Labs hereby grants to Customer, a non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable license to reproduce the Wiretap Content solely for Customer’s and its Affiliates’ internal business purposes in accordance with the terms and conditions of this Agreement. Wiretap Labs and its licensors reserve all rights in and to the Wiretap Content not expressly granted to Customer under this Agreement.
3.3 Restrictions on Use. Customer shall not (a) reproduce (except, with respect to the Wiretap Content, as permitted in Section 3.2), display, download, modify, create derivative works of or distribute the Wiretap Content or the Platform, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the Platform, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer or Customer Affiliates; (c) permit any party, other than the then-currently authorized Users to independently access the Platform; (d) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) exceed the Usage Limitations; (f) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (g) remove obscure, alter, or modify any copyright notices, proprietary legends, or other attributions included by Wiretap Labs in or on the Wiretap Content; (h) add any copyright notices or other designations that conflict with, confuse, or negate the notices provided by Wiretap Labs; (i) upload any Customer Content that may infringe upon or misappropriate a third party’s trademark, copyright, or other intellectual property, or that may be tortious or unlawful; (j) upload Customer Content that incites, supports, graphically describes, or encourages self-harm, violence, or hatred against individuals or groups, including violence against animals; (k) upload Customer Content that promotes, solicits, facilitates, or encourages illegal activity; or (l) upload any Customer Content that is defamatory, discriminatory, libelous, abusive, harassing, offensive, deceptive, obscene, pornographic or sexually explicit.
3.4 Users. Under the rights granted to Customer under this Agreement, Customer may permit its and its Affiliates’ independent contractors and employees to become Users in order to access and use the Platform in accordance with this Agreement; provided that Customer will be liable for the acts and omissions of all Customer Affiliates and Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Software or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement.
3.5 Prohibited Data. Notwithstanding anything to the contrary in this Agreement, Customer shall not, and shall take commercially reasonable efforts to ensure that its Users do not, upload to the Platform or otherwise submit or make accessible to Wiretap Labs any financial account or government issued identifiers (e.g., social security numbers, credit card information, or bank information), protected health information, or other types of sensitive data that is subject to specific or elevated data protection requirements (collectively, “Prohibited Data”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (a) the Software and Platform are not intended for the management or protection of Prohibited Data and may not provide adequate or legally required security for Prohibited Data; and (b) Wiretap Labs will have no liability for any failure to provide protections set forth in any laws, rules, regulations, or standards applicable to such Prohibited Data or to otherwise protect the Prohibited Data. If Customer or any Users upload any Prohibited Data to the Platform in violation of this Section 3.5, Wiretap Labs may, without limiting any of its other rights and remedies, delete such Prohibited Data.

4. FEES AND PAYMENT TERMS.

4.1 Price. Customer shall pay Wiretap Labs the fees set forth in the applicable Order (“Fees”) in accordance with the terms of this Agreement. Fees are exclusive of, and Customer shall pay all taxes, fees, duties, and other governmental charges arising from the payment of any Fees or any amounts owed to Wiretap Labs under this Agreement (excluding any taxes arising from Wiretap Labs’s income or any employment taxes). Fees for any Services requested by Customer that are not set forth in Exhibit A or an Order will be charged as mutually agreed to by the parties in writing.
4.2 Payment. Unless provided otherwise in the applicable Order, Customer shall pay to Wiretap Labs all Fees within 30 days after Customer’s receipt of the applicable invoice for such Services. If Customer disagrees with any Fees set forth in an invoice, Customer must notify Wiretap Labs of the dispute within 30 days after receipt of such invoice. If Wiretap Labs does not receive notice of a dispute during such 30 day period, Customer will be deemed to have accepted the Fees set forth in the invoice. All payments received by Wiretap Labs are non-refundable except as otherwise expressly provided in this Agreement. Customer shall make all payments in United States dollars.

5. TERM AND TERMINATION.

5.1 Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues until all Orders have terminated (“Term”).
5.2 Order Term. The initial term of an Order begins on the date set forth in the Order and continues for one year (“Initial Term”). Each Order will automatically renew for additional one year periods (each, a “Renewal Term”), unless a party gives the other party written notice of its intent to not renew at least 30 days prior to the end of the Initial Term or the then-current Renewal Term.
5.3 Termination for Cause. A party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.
5.4 Effects of Termination. Upon termination of this Agreement and all Orders: (a) all amounts owed to Wiretap Labs under this Agreement before such termination will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) Wiretap Labs shall promptly return or erase all Customer Content, except that Wiretap Labs may retain Customer Content in Wiretap Labs’s archived backup files. Sections 4, 5.4, 6, 7.3, 8, 9, 10, and 11 survive expiration or termination of this Agreement.
5.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Wiretap Labs may suspend Customer’s access to the Platform if Wiretap Labs determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to Wiretap Labs and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 3.3 or 10; (d) Customer’s or its Users’ use of the Platform violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 15 days after Wiretap Labs has provided Customer with written notice of such late payment. Wiretap Labs shall use commercially reasonable efforts to provide Customer with notice of such suspension. Wiretap Labs may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to Wiretap Labs’s reasonable satisfaction. Wiretap Labs’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement.

6. PROPRIETARY RIGHTS.

6.1 Customer Content. As between the parties, Customer owns all right, title, and interest in Customer Content, including all intellectual property rights therein.
6.2 Customer Content License Grant. Customer hereby grants to Wiretap Labs, its Affiliates, and its and their respective authorized representatives and contractors, during the Term, a non-exclusive, non-transferable (except as permitted by Section 11.3) license to use the Customer Content for the purpose of performing the Services for Customer and fulfilling Wiretap Labs’ other obligations and exercising its rights under this Agreement. In addition, Customer hereby grants to Wiretap Labs, its Affiliates, and its and their respective authorized representatives and contractors a non-exclusive, non-transferable (except as permitted by Section 11.3) license to use the Customer Content to provide products and services to Wiretap Labs’ and its Affiliates’ other customers.
6.3 The Services. All proprietary technology utilized by Wiretap Labs to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of Wiretap Labs. Wiretap Labs or its third party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Wiretap Content and the Platform, including without limitation the Software, Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by Wiretap Labs in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by Wiretap Labs.
6.4 Usage Data. Wiretap Labs retains ownership of all right, title, and interest in and to the Usage Data. Wiretap Labs may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve Wiretap Labs’s services, systems, and algorithms.

7. WARRANTY; DISCLAIMERS.

7.1 Access to the Platform. Wiretap Labs warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. Wiretap Labs does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies Wiretap Labs of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, Wiretap Labs shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if Wiretap Labs is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to Wiretap Labs and, Wiretap Labs shall refund the amounts paid by Customer for access to the Platform for the period during which the Platform was not usable by Customer. The warranties set forth in this Section 7.1 do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Platform, or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions.
7.2 Right to Customer Content. Customer represents and warrants that it has the right to: (a) use the Customer Content as contemplated by this Agreement; and (b) grant Wiretap Labs the licenses in Section 6.2.
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

8. INDEMNIFICATION.

8.1 Claims Against Customer. Wiretap Labs shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any intellectual property rights of such third party (a “Customer Claim”), and Wiretap Labs shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Wiretap Labs in writing of such Customer Claim; (b) giving Wiretap Labs sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Wiretap Labs’s request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, Wiretap Labs shall, at its option and at its own expense either: (i) procure for Customer the right to continue using the Platform; (ii) replace the Software with a non-infringing but functionally equivalent product; (iii) modify the Software so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Platform that relate to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, Wiretap Labs will have no obligation under this Section 8.1 with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data that Wiretap Labs did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; (3) any modification of the Platform by any person other than Wiretap Labs or its authorized agents or subcontractors; or (4) any Third-Party Offering. This Section 8.1 states Wiretap Labs’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.
8.2 Claims Against Wiretap Labs. Customer shall defend, any claim, suit, or action against Wiretap Labs brought by a third party to the extent that such claim, suit, or action is based upon: (a) Wiretap Labs’s use of any Customer Content in accordance with this Agreement; or (b) Customer’s breach of Section 7.2 (each, a “Wiretap Labs Claim”) and Customer shall indemnify and hold Wiretap Labs harmless, from and against Losses that are specifically attributable to such Wiretap Labs Claim or those costs and damages agreed to in a settlement of such Wiretap Labs Claim. The foregoing obligations are conditioned on Wiretap Labs: (a) promptly notifying Customer in writing of such Wiretap Labs Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any Wiretap Labs Claim to the extent based upon Wiretap Labs’s use of the Customer Content in violation of this Agreement.

9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO Wiretap Labs UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 9 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 8, TO LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 10, OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 3.3.

10. CONFIDENTIALITY.

10.1 Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. Wiretap Labs’s Confidential Information includes Software and Wiretap Content. Customer’s Confidential Information includes Customer Content.
10.2 Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 10. Recipient will be liable to the Discloser for any of its employees’ and independent contractors’ acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 10. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
10.3 Exceptions. Recipient will have no confidentiality obligations under Section 10.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

11. GENERAL.

11.1 Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
11.2 Subcontractors. Wiretap Labs may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that Wiretap Labs will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Wiretap Labs, would constitute a breach of, or otherwise give rise to liability to Wiretap Labs under, this Agreement when they are performing for or on behalf of Wiretap Labs.
11.3 Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.
11.4 Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.
11.5 Notices. To be effective, notices under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party first set forth on the signature page and will be effective upon receipt, except that e-mail may be used for routine communications and to obtain operational approvals and consents but may not be used for any other notices.
11.6 Governing Law; Venue. The laws of the State of Colorado govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the Application of the laws of a different jurisdiction. The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in Denver, Colorado in any litigation arising out of this Agreement or the Services.
11.7 Remedies. Each party acknowledges that any actual or threatened breach of Sections 3.3 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.
11.8 Compliance with Laws. Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.
11.9 Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.10 Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).
11.11 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
11.12 Entire Agreement. This Agreement, including any Order and any exhibits or attachments thereto, constitutes the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party will be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement will govern unless the Order specifically overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.