PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). BY DOWNLOADING, INSTALLING OR USING VIRSEC SOFTWARE (DEFINED BELOW), YOU AND ANY ENTITY YOU REPRESENT (“LICENSEE”) AGREE TO BE BOUND BY THIS AGREEMENT WITH VIRSEC SYSTEMS INC. (“VIRSEC”). IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE VIRSEC SOFTWARE.
This Agreement governs Licensee’s use of the Virsec Software unless the particular Virsec Software is subject to a separate written agreement that does not refer to these terms between Virsec and Licensee that is signed by Virsec.
1.1. “Authorized Modules” means those modules of the Virsec Software identified by Virsec in writing designated as authorized for Licensee’s use and for which Licensee has paid the applicable fees. If no separate Authorized Modules are specified in accordance with the foregoing, Authorized Modules means the Virsec Software.
1.2. “Documentation” means the then-current printed, online, and/or electronic documentation, if any, that is provided by Virsec to Licensee describing the use of the Virsec Software. “Documentation” does not include any sales or marketing materials.
1.3. “Evaluation Software” means any Virsec Software provided to Licensee for evaluation purposes or otherwise designated by Virsec as evaluation software.
1.4. “Improvements” means modifications, improvements, derivative works and the like.
1.5. “Intellectual Property Rights” means all intellectual property and proprietary rights throughout the world, including patents, trade secrets, copyrights and trademarks.
1.6. “Location” means Licensee’s primary location or otherwise, if specified therein, the location(s) specified on Virsec’s order form or agreement that references this Agreement.
1.7. “Virsec Software” means the Virsec software provided by Virsec for which Virsec references this Agreement including Virsec software identified in Virsec’s order form or agreement that references this Agreement and including any updates Virsec provides to Licensee to such software for use in connection with it.
2. License Grant and Intellectual Property Rights
2.1. License. For the term of this Agreement, subject to the terms and conditions of this Agreement, including, without limitation, payment and Section 2.3 (License Restrictions), Virsec grants Licensee a non-exclusive, non-transferable, non-assignable, non-sublicensable and limited license, only in object code form, to (a) install one (1) copy of the Virsec Software on Licensee’s own computer system, and (b) use the Authorized Modules of such installed Virsec Software for which Licensee has paid the applicable fees in accordance with the Documentation solely for Licensee’s internal business purposes at the Location.
2.2. Evaluation License. All terms and provisions of this Agreement shall apply to Evaluation Software, subject to the following modifications: (a) the license of Section 2.1 (License) shall be limited to Licensee’s evaluation of the Evaluation Software only, (b) Virsec shall have the right at any time in its sole discretion to terminate this Agreement and any license to Evaluation Software upon written notice to Licensee, and (c) the provision of Section 5 (Limited Warranty) shall not apply with respect to Evaluation Software and all Evaluation Software is provided “as is,” without any warranties whatsoever, express or implied.
2.3. License Restrictions. The licenses under Section 2 (License Grant and Intellectual Property Rights) are conditioned on Licensee’s compliance with, and Licensee agrees to, the following: (i) Licensee shall not use the Virsec Software outside of the scope of the license granted hereunder; (ii) Licensee shall not sublicense, distribute, disclose, market, rent, lease or transfer to any third party of the Virsec Software or the Documentation, including through any dial-up, remote access, interactive, Internet-based, service bureau or other on-line service; (iii) Licensee shall not remove or cause to be removed from any copies of the Virsec Software and Documentation, any copyright, licensed trademark, patent or other proprietary notices on the Virsec Software or Documentation, or any portion thereof; (iv) Licensee shall not modify, alter, adapt, translate, reverse-engineer, decompile, disassemble or attempt to discover the source code, underlying ideas, algorithms, file formats or programming interfaces of the Virsec Software, Documentation, or any portion thereof in any way, without the prior written consent of Virsec; (v) Licensee shall not export or re-export the Virsec Software, either directly or indirectly, without Virsec’s written consent or in violation of the laws of the United States or other jurisdiction; and (vi) Licensee shall not use any aspects of the Virsec Software other than the Authorized Modules, and without limiting the foregoing, Licensee shall use the Virsec Software only in accordance with the respective Documentation, license key and any usage limitations and/or requirements provided in the Documentation, license file from Virsec or Virsec’s order form or agreement that references this Agreement (including without limitation regarding territory, location, server, users including number of users or other requirements and/or limitations), and only within the scope for which Licensee is paying the required fees. Licensee agrees that the Virsec Software may use or contain a license key mechanism limiting its use, and Licensee shall not use or enable the use of the Virsec Software other than in accordance with the intended limitations of any license key provided by Virsec (in addition to any contractual limitations). Licensee agrees that, without limitation, any breach of this Section 2.3 (License Restrictions) or unauthorized use of the Virsec Software or Documentation is a material breach of this Agreement.
2.4. Ownership by Virsec. Virsec retains all Intellectual Property Rights covering or embodied in the Virsec Software and any Improvements to any Virsec Software. In the event that Licensee acquires any rights in or to any Improvements or Intellectual Property Rights covering or embodying Improvements or the Virsec Software, Licensee shall assign, and hereby assigns, all right, title and interest in such Improvements and Intellectual Property Rights to Virsec. In any event, Virsec shall have the right to integrate and use all Improvements and associated Intellectual Property Rights in Virsec’s products and services without restriction.
2.5. License Only. The Virsec Software is licensed, not sold, to Licensee. This Agreement does not transfer any right, title, or interest in or to any such Virsec Software regardless of any use of the terms “purchase,” “acquire,” “sale” or similar language herein or in any agreement between Licensee and any third party.
2.6. Third Party Software. The Virsec Software may use or rely on software that is subject to open source or commercial license terms as identified by Virsec in writing on its website or connection with Licensee’s order and/or receipt of the Virsec Software (“Third Party Software”). Any Third Party Software Virsec provides to Licensee is for convenience only, and is not part of the Virsec Software and is not licensed or subject to Virsec warranties or other obligations hereunder. Licensee is solely responsible for procuring and complying with any necessary license rights if it chooses to use any Third Party Software.
2.7. No Other Rights. All Intellectual Property Rights of Virsec not expressly granted to Licensee in this Agreement are expressly reserved by Virsec. Without limitation, Licensee receives no right or license, by implication, estoppel or otherwise, to any software, technology or Intellectual Property Rights not embodied in the Virsec Software, even if such other software, technology or Intellectual Property Rights are useful or necessary in connection with the Virsec Software.
3.1. Payment. Unless otherwise specified by Virsec, Licensee shall pay all amounts for the Virsec Software in U.S. dollars by bank wire transfer in immediately available funds to a bank account designated by Virsec. If not otherwise provided in the respective schedule or other documentation from Virsec, Licensee shall pay amounts due within thirty (30) days of invoice.
3.2. Records and Audit Rights. Licensee shall keep and maintain books and records in sufficient detail to permit the verification of Licensee’s obligations hereunder. Virsec shall have the right to inspect or appoint an auditor to inspect Licensee’s systems, books and records relevant to this Agreement and other materials as may be required to verify or determine Licensee’s compliance with its obligations hereunder during regular business hours, wherever they are normally kept by Licensee, upon not less than one (1) week’s prior written notice. The cost of any such audit shall be paid for by Virsec unless material non-compliance is found, in which case Licensee shall pay Virsec for the costs associated with the audit.
3.3. Late Payment. All late payments shall be subject to interest calculated at the rate of one and one‑half percent (1.5%) per month or the maximum allowable by law, whichever is less. This Section 3.3 (Late Payment) shall in no way limit any other rights or remedies that may otherwise be available to Virsec. Licensee agrees to pay all expenses associated with collection, including reasonable attorneys’ fees.
3.4. Taxes. All stated prices, fees and other stated charges are exclusive of applicable sales, excise, use or similar taxes. Licensee shall pay all such taxes, either directly or to Virsec, as required by applicable law or regulation. In the event that Licensee is required to withhold taxes, Licensee shall provide to Virsec official receipts issued by the appropriate taxing authority or other evidence to establish that such taxes have been paid.
3.5. Payment Terms. Virsec shall have the right to require advance payment and require adequate assurance of payment in the event that Licensee fails to make payment within the time limits required hereunder, or if, in Virsec’s sole discretion, it is advisable in view of Licensee’s financial condition. The foregoing does not limit Virsec’s other remedies hereunder, including the right to terminate this Agreement for breach.
4. Confidential Information
4.1. General. “Confidential Information” shall mean information disclosed by one party (“Disclosing Party”) to the other party or its affiliates (“Receiving Party”) pursuant to this Agreement, which, if disclosed in tangible form, is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature, or, if disclosed orally, is indicated orally to be confidential or proprietary by the Disclosing Party at the time of such disclosure or is confirmed in writing as confidential or proprietary by the Disclosing Party within a reasonable time after such disclosure. Notwithstanding anything to the contrary, the source code and other non-public aspects of the Virsec Software are the Confidential Information of Virsec, regardless of whether or not marked.
4.2. Exceptions. Notwithstanding the foregoing, Confidential Information shall not include information that, in each case as demonstrated by written documentation: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure; (b) was generally available to the public or otherwise part of public knowledge at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of public knowledge after its disclosure and other than through any act or omission of the Receiving Party in breach of any confidentiality obligations; (d) was subsequently lawfully disclosed to the Receiving Party by a person other than a party without an obligation of confidentiality; or (e) was independently developed by the Receiving Party without reference to or use of any Confidential Information disclosed by the Disclosing Party.
4.3. Non-Use and Non-Disclosure. The Receiving Party may use or disclose the Disclosing Party’s Confidential Information solely to the extent such use or disclosure is reasonably necessary for exercising its rights or performing its obligations under this Agreements.
4.4. Maintenance of Confidentiality. The Receiving Party agrees that it shall use the same degree of care to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the Disclosing Party that it uses to protect its own confidential information of similar importance, but no less than reasonable care. The Receiving Party shall reproduce the Disclosing Party’s proprietary rights notices on all copies of Confidential Information, in the same manner in which such notices were set forth in or on the original. Each party shall immediately notify the other party in the event of any unauthorized use or disclosure of the other party’s Confidential Information.
4.5. Terms of Agreement. Each party agrees not to disclose to any third party the terms of this Agreement without the prior written consent of the other party, except: (i) as may be required by law; (ii) in confidence, to legal counsel of the party; (iii) in connection with the requirements of a securities filing; (iv) in confidence, to a party’s accountants, banks, investors, and other current and prospective financing sources and their advisors; (v) in connection with the enforcement of this Agreement or rights under this Agreement; or (vi) in confidence, in connection with a merger, acquisition, change of control or sale of substantially all of the assets of such party.
4.6. Authorized Disclosures. Notwithstanding anything to the contrary, the Receiving Party may disclose such Confidential Information of the Disclosing Party as required to be disclosed by law or pursuant to a valid order of a court or other government body provided that the Receiving Party promptly provides, in compliance with law, prior written notice to the Disclosing Party of any planned disclosure based on such legal requirement or order and cooperates with Disclosing Party to obtain such confidential treatment or protective orders as may be available under applicable law.
5. Limited Warranty
5.1. Software Warranty. Unless otherwise specified in Virsec’s order form or agreement that references this Agreement, Virsec warrants to Licensee that, for a period of ninety (90) days following the delivery of the initial Virsec Software to Licensee (the “Software Warranty Period”), the Virsec Software will substantially conform to the Documentation when maintained and operated in accordance with the Documentation (“Software Warranty”). Following the Software Warranty Period, Virsec may provide maintenance and support, to the extent provided under the terms of a separate maintenance agreement and subject to Licensee’s payment and compliance with the applicable terms of this Agreement and any separate maintenance agreement.
5.2. Remedy. Licensee shall provide Virsec notice during the Software Warranty Period identifying any non-conformity to Software Warranty and shall provide detail as requested by Virsec to identify the nature of the non-conformity and conditions under which it appears. Virsec, at its sole option, shall use commercially reasonable efforts to repair or to deliver a replacement copy of the Virsec Software. All warranty repairs by Virsec shall be made at Virsec’s premises, unless Virsec otherwise agrees. Licensee’s sole remedy and Virsec’s sole liability with respect to any warranty regarding the Virsec Software shall be for Virsec to use such commercially reasonable efforts to provide the above a correction during the Warranty Period.
5.3. Exclusions. Virsec provides no warranty for the following or any liability or claim arising from any of the following: (i) software and equipment of Licensee or any third party (including any Third Party Software); (ii) directions, designs, plans or specifications furnished by or on behalf of Licensee; (iii) unauthorized use, or use of the Virsec Software in violation of this Agreement or other terms with Virsec, including any copies of the Virsec Software not made in accordance with the terms of this Agreement and the limitations of the licenses granted hereunder; (iv) Licensee’s failure to comply with applicable law, or failure to obtain any authorizations, consents, releases or permissions that are necessary for Licensee’s use of the Virsec Software or any service provided by Virsec; (v) any data provided by Licensee or third party; (vi) any activities of Licensee or third party through the use of the Virsec Software; (vii) modification of the Virsec Software made other than by Virsec; (viii) the combination, operation or use by Licensee of the Virsec Software with equipment, devices or software not supplied by Virsec; (ix) failure of Licensee to use an updated or modified Virsec Software provided by Virsec, including those provided to avoid error or infringement; or (x) Licensee’s use of the Virsec Software after termination of this Agreement (collectively, “Exclusions”).
5.4. Warranty Disclaimer. THE FOREGOING LIMITED WARRANTIES AND REMEDIES PROVIDED BY VIRSEC ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. EXCEPT TO THE EXTENT EXPRESSLY SET FORTH ABOVE, VIRSEC DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE VIRSEC SOFTWARE OR ANY SUPPORT RELATED THERETO, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF (i) MERCHANTABILITY, (ii) FITNESS FOR A PARTICULAR PURPOSE, (iii) NON‑INFRINGEMENT, (iv) NON‑INTERFERENCE, (v) ACCURACY OF DATA, (vi) OPERATION WITHOUT INTERRUPTION OR ERROR, (vii) FREEDOM FROM VULNERABILITY TO INTRUSION OR ATTACK, (viii) INTEROPERABILITY WITH ANY HARDWARE, SOFTWARE, SYSTEMS, OR DATA NOT PROVIDED BY VIRSEC, AND (ix) WARRANTIES ARISING FROM A COURSE OF DEALING, AND ALL SUCH WARRANTIES ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.1. Indemnification by Virsec. Virsec agrees to defend at its own expense any action brought against Licensee that the Virsec Software infringes a third-party Intellectual Property Right, and Virsec shall pay any costs and damages finally awarded against Licensee in any such actions that are attributable to such claim. Notwithstanding the foregoing, this Section 6.1 (Indemnification by Virsec) shall not apply to, and Virsec shall have no liability for, any claim arising out of or relating to any Exclusions. Virsec’s sole liability and Licensee’s sole remedy for infringement claims shall be to obtain indemnity under the provisions of this Section 6.1 (Indemnification by Virsec). Virsec’s obligation under this Section 6 (Indemnification) is subject to, and Licensee shall, (i) promptly notify Virsec in writing of any such claim, and provide Virsec with sole control of the defense of such claim and all negotiations for any settlement or compromise, and (ii) provide all information and assistance reasonably requested by Virsec for the defense and settlement of such claim.
6.2. Infringement; Injunctions. If Licensee’s use of the Virsec Software hereunder is, or in Virsec’s opinion is likely to be, enjoined as an infringement or misappropriation of any third party intellectual property right under the laws of the United States, Virsec shall have the right, at Virsec’s sole option and expense, either: (a) to procure for Licensee the right to continue to use the Virsec Software under the terms of this Agreement; or (b) replace or modify the Virsec Software so that it is non-infringing.
6.3. Sole Remedy. The foregoing provisions of this Section 6 (Indemnification) set forth Virsec’s sole and exclusive obligations, and customer’s sole and exclusive remedies, with respect to infringement of Intellectual Property Rights of any kind.
6.4. Indemnification by Licensee. Licensee agrees to indemnify and hold harmless Virsec at Licensee’s expense from and against any claim against Virsec arising out of any Exclusion, and Licensee will pay any costs and damages finally awarded against Virsec in any such actions which are attributable to such claim.
7. Limitation of Liability.
7.1. Limitation of Liability. VIRSEC SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, RELATING TO THIS AGREEMENT OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF WHETHER VIRSEC WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF VIRSEC FOR ALL CLAIMS HEREUNDER OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE GREATER OF: (i) THE AMOUNTS PAID BY LICENSEE FOR THE RESPECTIVE VIRSEC SOFTWARE GIVING RISE TO THE CLAIM IN THE LAST TWELVE (12) MONTHS UNDER THIS AGREEMENT BEFORE THE EARLIER OF THE MAKING OF THE CLAIM OR TERMINATION OR END OF THE TERM OF THIS AGREEMENT OR (ii) FIVE HUNDRED DOLLARS ($500).
7.2. Allocation of Risk. The warranty disclaimer and limitations of liability set forth in this Agreement shall apply irrespective of any failure of the essential purpose of any limited remedy. Licensee and Virsec each acknowledge and agree that the limitation of liability provisions of this Agreement reflect an informed, voluntary allocation between them of the risk associated with the exercise of Licensee’s rights regarding the Virsec Software and, but for these provisions, Virsec would not have made the Virsec Software available to Licensee under the terms contemplated under this Agreement.
7.3. Applicable Law. The warranty disclaimer and limitations of liability set forth in this Agreement shall not apply to the extent prohibited by law, in which case the disclaimer or limitation shall be modified to disclaim and/or limit in accordance with applicable law. Without limiting the foregoing, to the extent required by law, the foregoing limitations shall not apply to claims due to fraud, bodily injury or death.
8. Term and Termination
8.1. Term. Unless terminated earlier as set forth below, this Agreement shall continue for the license term identified in Virsec’s order form or agreement that references this Agreement.
8.2. Termination for Cause. Without prejudice to any other right or remedy which may be available to it, each party may terminate this Agreement upon written notice to the other upon the other party’s material breach of this Agreement that is incurable or, if curable, remains uncured thirty (30) days after notice to the other party, or, in the case of failure to make payment, remains uncured thirty (30) days after notice to the other party. Licensee’s failure to pay amounts when due hereunder shall be deemed a material breach.
8.3. Termination for Bankruptcy. If either party (a) becomes insolvent or bankrupt, (b) dissolves or ceases to conduct business in the ordinary course, (c) makes an assignment for the benefit of its creditors, (d) commences any insolvency, receivership, bankruptcy or other similar proceeding for the settlement of its debts or (e) has commenced against it any insolvency, receivership, bankruptcy or other similar proceeding for the settlement of its debts that is not dismissed within thirty (30) days after notice of such proceeding, then the other party may terminate this Agreement immediately upon written notice to such party.
8.4. Return or Destruction of Virsec Software. Within fifteen (15) days after termination of this Agreement, Licensee will certify in writing to Virsec that all copies of the Virsec Software and Documentation in any form, including partial copies, have been destroyed or returned to Virsec.
8.5. Effect of Termination. If this Agreement is terminated for any reason, all rights granted hereunder to Licensee shall terminate. The provisions of Sections 1 (Definitions), 2.3 (License Restrictions), 2.4 (Ownership by Virsec), 3 (Payment), 4 (Confidential Information), 5.3 (Exclusions), 5.4 (Warranty Disclaimer), 6.3 (Indemnification by Licensee), 7 (Limitation of Liability), 8 (Term and Termination) and 9 (Miscellaneous) shall survive termination of this Agreement.
9.1. Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
9.2. Assignment. Licensee shall not have the right to assign this Agreement, in whole or in part, without Virsec’s prior written consent. Virsec shall have the right to terminate this Agreement in the event of a change of control of Licensee. Virsec may freely assign this Agreement without Licensee’s consent. Any attempt to assign this Agreement, other than as permitted above, shall be null and void.
9.3. Force Majeure. Nonperformance of any party (other than with respect to payment obligations) shall be excused to the extent that performance is rendered impossible by strike, fire, earthquake, flood, governmental acts or orders or restrictions, failure of suppliers or any other reason where failure to perform is beyond the reasonable control of the nonperforming party.
9.4. Federal Acquisition. This provision applies to all acquisitions of the Virsec Software by or for the Federal Government, whether by any prime contractor or subcontractor and whether under any procurement contract, grant, cooperative agreement, or other activity by or with the Federal Government. By accepting delivery of the Virsec Software, the Government agrees the Virsec Software qualifies as “commercial” computer software within the meaning of the acquisition regulations applicable to this procurement. The terms and conditions of this Agreement shall pertain to the Government’s use and disclosure of the software, and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the Government’s needs or is inconsistent in any respect with Federal law, the Government agrees to return the Virsec Software, unused, to Virsec.
9.5. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, U.S.A., applicable to contracts made in and fully performed in the State of California, U.S.A., without reference to conflict of law or choice of law principles that would cause the application of laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in a federal or state courts located in Santa Clara County, State of California, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. The United Nations Convention on Contracts for the International Sales of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act shall not apply to this Agreement.
9.6. Language of Agreement. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation shall not be binding upon the parties.
9.7. Severability. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted, and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent.
9.8. Waiver. The failure by either party to enforce any provision of this Agreement shall not constitute a waiver of future enforcement of that or any other provision.
9.9. Notices. All notices required or permitted under this Agreement shall be in writing and delivered by courier, overnight delivery service, or by certified mail, and in each instance shall be deemed given upon receipt. All notices shall be sent to the addresses set forth in Virsec’s order form or agreement that references this Agreement. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section 9.9 (Notices).
9.10. Effect of Purchase Orders and Other Documents. This Agreement is intended by Virsec and Licensee to operate as a basic set of operating conditions regarding the license of the Virsec Software and related services. Purchase orders may be used for convenience to identify the order information, and any other terms of purchase orders are hereby rejected. This Agreement shall prevail over any conflicting or additional terms or conditions of any purchase order, acknowledgement or other document exchanged in connection with the ordering of the Virsec Software and related services. Any conflicting or additional terms in any such documents of Licensee are hereby deemed to be material alterations and notice of objection to and rejection of them is hereby given.
9.11. Entire Agreement. This Agreement contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Any waiver, modification, or amendment of any provision of this Agreement shall be effective only if in writing and signed by duly authorized representatives of the parties.