TERMS AND CONDITIONS
In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:
1.1. “Authorized Users” shall mean a named Customer employee, independent contractor, or consultant who is authorized to use the Service and who has been supplied a user identification and password by a Customer representative or WorkerSense at Customer’s written request.
1.2. “Customer Data” shall mean any and all data and information transmitted via the Device or data otherwise transmitted to or by Customer in performance of the Service, including data pertaining to Customer’s employees, contractors, and Authorized Users.
1.3. “Fees” shall mean the non-refundable fees set forth in the Order Form.
1.4.“Intellectual Property Rights” shall mean (a) copyright, patents, database rights, rights in trademarks, service marks, designs, know how, trade secrets (including any patentable ideas), and Confidential Information, (b) applications for registration, and the right to apply for registration, for any of these rights, including renewals, continuations, continuation in part, reissues, and extensions, and (c) all other intellectual or industrial property rights in any form (including at common law), unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how, trade secrets, and all other intellectual property rights, derivatives thereof, and equivalent or similar forms of protection existing anywhere in the world.
1.5. “Monitored Device” means a Device that is monitored using the Service.
1.6. “Service” shall mean the services provided by WorkerSense pursuant to this Agreement.
1.7. “Service Term” shall mean the Initial Term and successive one-year periods thereafter, during which Customer has paid fees in accordance with this Agreement and during which a specified number of Authorized Users are permitted to use the Service in accordance with this Agreement, unless and until earlier terminated in accordance with Section 6.
1.8. “WorkerSense Technology” shall mean all software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information made available to Customer by WorkerSense in providing the Service, including, without limitation, the Device.
2.1 Generally. Customer shall notify WorkerSense in writing of the number of Devices and Service subscriptions it desires to order. After WorkerSense confirms in writing the number of Devices, Service subscriptions, and the applicable Fees, WorkerSense shall use commercially reasonable efforts to supply Customer with the Device and provide the Service to Customer. Subject to the terms and conditions of this Agreement and the payment of the Fees, WorkerSense hereby grants to Customer, Authorized Users of Customer, and those employees or contractors so designated by Customer a limited right to use the Device and the Service. All rights not expressly granted herein are reserved by and for WorkerSense. Customer shall not and shall ensure that its Authorized Users, employees, or contractors do not, use the Device or Service for any use or purpose other than as explicitly set forth in this Agreement. For example, Customer shall not and shall ensure that its Authorized Users, employees, and contractors do not, (i) interfere with or disrupt the integrity or performance of the Device or the Service or the data transmitted in conjunction with the Service; (ii) modify the Device in any manner, or (iii) attempt to gain unauthorized access to the Service or its related systems or networks. Customer shall cause each Authorized User and any wearer of the Device to comply with the terms and conditions of this Agreement with respect to the access and use of the Device and the Service and will be directly liable to WorkerSense in the event of any breach of this Agreement by Customer, its Authorized Users, its employees, its contractors, or any wearer of the Device. Customer is responsible for all activity occurring under its Authorized User accounts and shall abide by all applicable local, state, and federal laws, treaties, and regulations in connection with its use of the Service, including but not limited to those related to labor and employment, data privacy and security, international communications, and the transmission of technical or personal data. Customer shall notify WorkerSense immediately of any misuse any Authorized User account or Device or any other known or suspected breach of Customer security or obligations under this Agreement. In such event, Customer agrees to use best efforts to immediately stop any known or suspected misuse, copying, or distribution of WorkerSense Technology. Aside from the Device, Customer shall be responsible for providing and maintaining any and all components necessary for using the Service, and Customer is responsible for paying all third-party access charges (e.g., ISP, telecommunications fees, etc.) incurred while using the Service. WorkerSense is not responsible for any delay or non-service failures with respect to the Service caused by or resulting from Customer-provided components or the failure of any telecommunications systems.
2.2 Technical Support. WorkerSense will provide assistance to Customer via e-mail at email@example.com (provided, however, that no e-mail shall be deemed “received” by WorkerSense until WorkerSense has notified Customer that such e-mail has been received). WorkerSense will use commercially reasonable efforts to respond to Customer’s e-mail requests in a timely manner. Notwithstanding the foregoing, WorkerSense shall not be responsible for providing support if Customer (a) misuses, alters, or damages the Device or (b) uses the Service in a manner inconsistent with the terms and conditions of this Agreement.
2.3 Modifications to the Service. WorkerSense may issue modifications to the Service from time to time in its sole discretion. WorkerSense will use commercially reasonable efforts to inform Customer if it knows that any modifications may require material changes to Customer-provided components.
2.4 Compliance with Laws. Customer shall be solely responsible for its own compliance, and its Authorized Users’, employees’, and contractors’ compliance, with all laws (including without limitation the laws governing export control, unfair competition, anti-discrimination, false advertising, privacy, transmission of technical or personal data, publicity, and labor and employment) applicable to Customer’s business and use of the Device and the Service. The parties agree that if a change in applicable laws makes the continued performance of this Agreement or any part thereof, in WorkerSense’s sole reasonable discretion, unduly burdensome or unlawful, WorkerSense may terminate this Agreement upon notice to, and without further obligation to, Customer.
2.5 Data Collection and Device Use. Customer acknowledges that (i) the Service is intended for transmission of external monitoring data and the Device does not collect, store, or transmit biometric health data, (ii) is not a health monitoring device or substitute for Customer’s safety oversight and management of its employees and contractors, (iii) is not intended as a storage or hosting service for Customer Data and (iv) it is Customer’s sole obligation to store and archive Customer Data. Subject to the foregoing, to the extent Customer Data is transmitted through or stored by WorkerSense Technology, WorkerSense shall use commercially reasonable efforts to protect the security of such Customer Data.
2.6 Consent to Electronic Communications. Customer consents to WorkerSense providing information, notices, or alerts to Customer in electronic form to provide the Service. WorkerSense may provide such communications: (i) via e-mail transmitted to the e-mail address(es) designated by Customer or (ii) via SMS text message to the mobile phone number(s) designated by Customer. Customer understands and accepts that the owner of the designated mobile phone to which the SMS text messages are directed may incur a service fee from the cellular service provider for that device. Customer further represents that it has authority to provide the necessary consents and authorizations pertaining to the use of the designated e-mail addresses and mobile phone numbers to receive such communications. Customer will notify WorkerSense immediately of any necessary updates to the designated e-mail and mobile phone contact details. Customer may withdraw consent at any time by contacting WorkerSense at the address set forth in Part A, Section 3 of this Agreement. If such consent is withdrawn, Customer may be unable to utilize certain functionalities of the Service.
3.1 Fees. In consideration of the Service provided to Customer herein, Customer shall pay WorkerSense the Fees set forth on the Order Form. Customer is obligated to pay for any Device that is a Monitored Device in a year regardless of the amount of time such Device is a Monitored Device.
3.2 Invoices. Any sum due WorkerSense pursuant to this Agreement for which a time of payment is not otherwise specified herein shall be due and payable thirty (30) days after date of receipt of an invoice by Customer. Without prejudice to any other rights it has under this Agreement, WorkerSense shall have the right to suspend the provision of the Service, modify the payment terms to require full payment before providing additional Service, demand the return of any Devices supplied to Customer, or terminate this Agreement for breach without the opportunity for cure, if WorkerSense has not received payment of an invoice within thirty (30) days after the invoice date. In addition to an accrued interest at the rate of one and one-half percent (1.5%) per month (or if lower, the highest rate permitted by applicable law), Customer shall pay to WorkerSense all expenses incurred by WorkerSense in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment, including reasonable attorneys’ fees and collection agency fees.
3.3 Wire Transfer Instructions. Customer shall pay fees due under this Agreement to WorkerSense in US Dollars by check or wire transfer of funds in accordance with the instructions set forth on WorkerSense's invoice. All payments to be made under this Agreement are to be made free and clear of all deductions and withholdings, and are expressed net of all applicable taxes which may properly be raised thereon now or at any future time by any tax authority. For the avoidance of doubt, all such payments are quoted exclusive of any taxes, duties and other impositions whatsoever, if applicable, for which Customer shall be additionally liable at the applicable rate from time to time.
4.1 WorkerSense’s Rights. All Intellectual Property Rights and other proprietary rights in and to the Service or WorkerSense Technology (including but not limited to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer to WorkerSense relating to the Device or the Service) are and shall remain the exclusive property of WorkerSense.
4.2 Customer’s Rights. All Intellectual Property Rights and proprietary rights in and to Customer Data are and shall remain the exclusive property of Customer. Customer hereby grants to WorkerSense (i) a non-exclusive, sublicensable, worldwide right and license to use, access, and display for any purpose, on an anonymized basis, all Customer Data and information input into the Service by Customer and (ii) the right to sublicense such rights to its hosting provider or as may be reasonably necessary or appropriate in connection with the provision of the Service by WorkerSense and Customer’s use thereof.
5.1 Obligations of Confidentiality and Non-Use. Each party hereto shall hold in confidence, and shall not disclose to any person outside its organization (except as otherwise provided for in this Agreement), any Confidential Information (as defined below) of the Disclosing Party. As used in this Agreement, the party disclosing Confidential Information is referred to as the “Disclosing Party”; the party receiving such Confidential Information is referred to as the “Recipient”. Each party shall use the other party’s Confidential Information only for the purposes contemplated by this Agreement and shall not use or exploit such Confidential Information, either directly or indirectly, for its own benefit, for the benefit of another, or to compete with the other party without the prior written consent of the Disclosing Party. Recipient shall disclose the Disclosing Party’s Confidential Information received by it under this Agreement only to its employees, representatives, and agents who have a need to know such Confidential Information for the purposes contemplated by this Agreement and who are bound by obligations of confidentiality at least as protective as those set forth in this Agreement. Recipient shall be responsible for ensuring compliance by its employees, representatives, and agents with such obligations and shall be directly liable to the Disclosing Party for any breach of this Agreement by its employees, representatives, and agents. Recipient shall promptly notify Disclosing Party in writing upon learning of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information by such persons.
5.2 Definition of Confidential Information. “Confidential Information” shall mean confidential or other proprietary information that is disclosed by the Disclosing Party to the Recipient under this Agreement, including, without limitation, intellectual property, trade secrets, business and analytical methodologies, software designs, product suite specifications and documentation, the pricing and other terms of this Agreement, business and product plans, and other confidential business information. Confidential Information shall not include information that: (a) is or becomes public knowledge without any action by, or involvement of Recipient; (b) is in the Recipient's possession at the time of disclosure other than as a result of Recipient’s breach of any legal obligation; (c) is disclosed by Recipient with the prior written approval of Disclosing Party; or (d) is independently developed by the Recipient without reference to the Confidential Information.
5.3 Return or Destruction of Information. Subject to Section 6.3 clause (iii), upon the written request of the Disclosing Party or upon termination of this Agreement, Recipient shall promptly return to Disclosing Party any Confidential Information (including any copies, summaries, or analyses thereof) in Recipient’s possession or control and provide to Disclosing Party written certification of its compliance with the foregoing or destroy same and provide a certificate of destruction to Disclosing Party. Notwithstanding the foregoing, Recipient may retain one (1) copy of each such document or other media on a confidential basis for legal archives.
5.4 Disclosure Required by Law. The Recipient may disclose Confidential Information of the Disclosing Party if compelled to do so by order of a court, government agency, or other tribunal of competent jurisdiction if the Recipient, immediately upon receiving notice that disclosure may be required, gives written notice to the Disclosing Party so that the Disclosing Party may have the opportunity to seek a protective order or other remedy from said court or tribunal. In any event, the Recipient shall disclose only that portion of the Confidential Information that, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable efforts to ensure that any such information so disclosed will be accorded confidential treatment by said court, government agency, or tribunal through protective orders, filings under seal, and other appropriate means. Disclosure pursuant to this Section 5.4 will not change the Recipient’s confidentiality obligations set forth in Section 5.1.
5.5 Duration of Obligations. Each party’s obligations hereunder shall be in effect for a period of five (5) years for the date of last disclosure; provided, however, that trade secrets shall be entitled to the fullest protection available under applicable law.
5.6 Ownership. Except as otherwise specifically stated in this Agreement, the Recipient agrees that the Disclosing Party is and shall remain the exclusive owner of Disclosing Party’s Confidential Information and all patent, copyright, trade secret, trademark, and other intellectual property rights therein. No license or conveyance of any such rights to the Recipient is granted or implied under this Agreement.
SERVICE TERM & TERMINATION.
6.1 Service Term. The term of this Agreement shall be as set forth in the Order Form.
6.2 Termination. Either party may terminate this Agreement at any time on written notice to the other party if such other party breaches any material term or condition of this Agreement and does not cure such breach to the non-breaching party’s reasonable satisfaction within thirty (30) days following its receipt of written notice thereof from the terminating party specifying in detail the nature of the breach. In addition, WorkerSense shall have the right to terminate this Agreement (a) immediately upon written notice if Customer: (i) engages in unauthorized use of WorkerSense Technology or the Service or uses the Device or the Service in a manner that violates applicable laws, rules or regulations, or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under bankruptcy or insolvency, whether domestic or foreign, or has been liquidated voluntarily or otherwise or (b) if Customer fails to pay any invoice within thirty (30) days of the invoice date. Customer will be responsible for the payment of all applicable fees hereunder for the Initial Term and any Renewal Term, regardless of termination for any reason.
6.3 Effects of Termination. Upon the expiration or termination of this Agreement, (i) Customer shall immediately cease all use of and be denied all access to the Service, (ii) Customer shall immediately return all Devices to WorkerSense at Customer’s sole expense; (iii) Customer shall pay WorkerSense all amounts due and owing (if any) as of the effective date of termination as provided herein; and (iv) Customer acknowledges that WorkerSense has no obligation to retain Customer Data, and may delete or discard any or all Customer Data.
Warranties and Disclaimer
7.1 Customer Data. Customer represents and warrants that (i) it and its employees, contractors, and Authorized Users, as applicable, own all right title, and interest to, or have the appropriate license or other rights to use, all Customer Data (ii) it has provided any necessary notices or disclosures to its employees, contractors, and Authorized Users and will maintain all rights, consents, and approvals required to grant WorkerSense the rights to access and use Customer Data in accordance with this Agreement and will upon WorkerSense’s request, provide proof of the same, and (iii) neither its use, nor its employees’, contractors’, or Authorized Users’ use, of the Service will knowingly infringe the intellectual property or other rights of any third party.
7.2 DISCLAIMER OF WARRANTIES. WorkerSense DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE DEVICE OR THE SERVICE AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THE SERVICE AND ALL WORKERSENSE TECHNOLOGY (INCLUDING THE DEVICE) ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. WorkerSense DOES NOT WARRANT THAT THE DEVICE, THE SERVICE, OR OTHER MATERIAL OR INFORMATION OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE, THAT THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, THAT THE SERVICE WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE DEVICE OR SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED OR THAT THE DEVICE, THE SERVICE, OR THE SERVERS THAT MAKE THE DEVICE AND THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER AGREES THAT NO INCONSISTENT STATEMENT MADE BY A SALES REPRESENTATIVE OR OTHER EMPLOYEE OR AGENT OF WORKERSENSE WITH RESPECT TO A REPRESENTATION, WARRANTY, OR OTHER TERM OR CONDITION OF THIS AGREEMENT SHALL SUPERSEDE THIS AGREEMENT. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT WORKERSENSE EXERCISES NO CONTROL OVER, AND ACCEPTS NO RESPONSIBILITY FOR, CUSTOMER’S COMPLIANCE WITH ANY LAW OR REGULATION APPLICABLE TO CUSTOMER OR ITS EMPLOYEES, CONTRACTORS, OR AUTHORIZED USERS.
8.1 Customer shall defend, indemnify, and hold harmless WorkerSense from and against any and all Claims by third parties to the extent such Claims are based on or arise out of, or are attributable to, use of the Device or Service. Without limiting the foregoing, Customer shall also defend, indemnify, and hold harmless WorkerSense from and against any and all Claims by Customer’s employees or contractors, or third parties that (i) Customer Data or WorkerSense’s access or use thereof infringes a valid patent, copyright, trademark, trade secret, or other right of any Customer employee, Customer contractor, or third party or (ii) Customer (or its providers) has failed to obtain appropriate consent (a) to use or disclose the Customer Data in connection with the Service or (b) to cause its employees or contractors to wear the Device. Customer shall indemnify and hold harmless WorkerSense from and against any and all damages, fines, penalties, costs, and other amounts (including reasonable attorney’s fees and expenses) finally awarded or agreed to in connection with the adjudication or settlement of any such Claims.
8.2 Indemnification Procedures. To receive the indemnities set forth above, WorkerSense shall: (i) provide Customer with written notice of any Claims for which WorkerSense is seeking or may seek indemnification hereunder; (ii) provide Customer the information, authority, and assistance in the defense or settlement and (iii) not make any admission prejudicial to the defense of the Claim. Customer will have sole control of the defense and settlement negotiations, will keep WorkerSense fully informed concerning the status of any litigation, negotiations, or settlements of any such Claim, and will allow WorkerSense, at its own expense, to participate in such litigation, negotiations, and settlements with counsel of its own choosing. Any settlement of a Claim shall be subject to the prior written approval of WorkerSense, such approval not to be unreasonably withheld, delayed, or conditioned.
Limitation of Liability.
9.1 DAMAGES. IN NO EVENT WILL WORKERSENSE BE LIABLE TO CUSTOMER OR ANY THIRD party FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (including, but not limited to, business interruption, lost business, lost profits, or lost OF PRODUCTION) FOR ANY CLAIM IN ANY MANNER RELATED TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall WorkerSense be responsible or liable for: (A) any corruption, damage, loss, or mistransmission of customer data; (B) Customer’s reliance on the accuracy or fitness of results obtainED by using the service; (C) the security of customer data during transmission, access, or storage via CUSTOMER’s internal networks or via public telecommunications facilities; (D) HARDWARE, software, or other items owned by Customer or that are the property of a third party; (e) THE USE OR INABILITY TO USE THE SERVICE OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT; or (f) loss or destruction of, or damage to, customer data.
9.2 MAXIMUM AGGREGATE LIABILITY. IN NO EVENT SHALL EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY WITH RESPECT TO ANY AND ALL CLAIMS, (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT, BY STATUTE OR OTHERWISE) CONCERNING THE DEVICE, THE SERVICE, OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED AN AMOUNT EQUAL TO THE AMOUNT CUSTOMER PAID TO WORKERSENSE IN THE CALENDAR YEAR IMMEDIATELY PRECEDING THE CALENDAR YEAR DURING WHICH THE EVENT GIVING RISE SUCH LIABILITY OCCURRED. THIS SECTION 9.2 SHALL NOT LIMIT CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8.
10.1 Assignment. This Agreement will be binding upon and inure to the benefit of the parties hereto and each party’s respective heirs, successors, and assigns. This Agreement may not be assigned or otherwise transferred by a party without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that WorkerSense shall be permitted to assign this Agreement without such consent in connection with a merger or sale or transfer of substantially all of its assets. Any purported assignment in violation of this Section shall be void.
10.2 Use of Name. Neither party shall be permitted to use the other party’s name, logo or trademarks. However, WorkerSense may issue one (1) press release upon the execution this Agreement and may use Customer's name and logo on WorkerSense’s corporate website to indicate that Customer has executed this Agreement with WorkerSense.
10.3 Notices. All notices, requests, demands, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and may be given by any of the following methods: (i) personal delivery; (ii) e-mail or facsimile transmission; (iii) registered or certified mail, postage prepaid, return receipt requested; or (iv) recognized air courier service with appropriate documentation of delivery. Notices shall be sent to the appropriate party at its address given above (or at such other address, e-mail address, or facsimile number) for such party as shall be specified by notice given.
10.4 No Third Party Beneficiaries. Nothing in this Agreement shall confer any rights upon any person or entity other than the parties hereto and their respective successors and permitted assigns.
10.5 Amendments. No amendment, modification, or supplement of any provision of this Agreement will be valid or effective unless made in writing and signed by a duly authorized representative of each party.
10.6 Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of North Carolina without regard to its provisions governing conflicts of law, and disputes, if any, shall be subject to the jurisdiction of Federal and State Courts in North Carolina.
10.7 Independent Contractors. In making and performing this Agreement, the parties are acting and shall act as independent contractors. Neither party is, or will be deemed to be, an agent, legal representative, joint venturer, or partner of the other party for any purpose. Neither party shall have any authority to act for or to bind the other party in any respect.
10.8 Right to Subcontract. WorkerSense may subcontract any part of the Services and shall remain responsible for performance of such Service by its subcontractors.
10.9 Force Majeure. Neither party shall be liable in damages for any delay or default caused by conditions beyond its reasonable control, including but not limited to Acts of God, governmental actions or restrictions (including changes in laws or regulations), continuing domestic or international problems such as war, terrorism or insurrections, strikes, fires, floods, work stoppages, embargoes, unauthorized actions of third parties, equipment, telecommunications, power, or electrical failures, and/or lack of materials, but either party may terminate this Agreement if the other party is unable to perform due to any of the above-mentioned causes.
10.10 Internet and Telecommunications Delays. The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet, cellular, and electronic communications. WorkerSense is not responsible for any delays, delivery failures, or other damage resulting from such problems.
10.11 Severability. Any provisions of this Agreement that are determined to be invalid or unenforceable by a court of competent jurisdiction shall be ineffective to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable the remaining provisions of this Agreement to the extent consistent with the original business purpose of this Agreement. However, the provisions of Section 4 (“Proprietary Rights”), Section 5 (“Confidentiality”), Section 7.2 (“Disclaimer of Warranties”) and Section 9 (“Limitation of Liability”) are considered by the parties to be integral to this Agreement and shall not be modified or severed from this Agreement.
10.12 Waivers. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision, or as a waiver of any breach or violation of any other provision of this Agreement.
10.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument.
10.14 Survival. The Sections of this Agreement that by their nature are intended to survive the termination of this Agreement shall survive so survive.
10.15 Entire Agreement. This Agreement constitutes the entire agreement and supersedes all prior agreements (written or oral) between the parties relating to the subject matter of this Agreement. This Agreement may not be modified, changed, or discharged, in whole or in part, except by an agreement in writing signed by the parties. In the event Customer issues a purchase order for the Service and the terms and conditions of said purchase order conflict with or are otherwise different from the terms and conditions of this Agreement, this Agreement shall prevail.