Subscription and Services Terms & Conditions

These Subscription and Services Terms & Conditions (the “Terms”) are entered into by and between Xactly Corporation, (“Xactly”), and the entity listed in one or more ordering documents (each an “Order Form”), (“Customer”) and govern the provision by Xactly of the software products or applications (“Products”), current published guides for the Products (“Documentation”), databases of individual demographic and behavioral data provided and/or used by Xactly (“Databases”), deployment, support, and production services (“Services”), literary, graphic, video, audio, or photographic content contained in the Products (“Content”), extensible functionality and integrations (“Connectors”) and generative and predictive artificial intelligence agentic and assistive functionality (“AI”) (collectively, all of the foregoing referred to as the “Solution”). These Terms, each Order Form and all Appendices are collectively referred to as the “Agreement.”

1. Scope, Term, & Termination

1.1 Term. The Agreement commences on the date the first Order Form is executed (the “Effective Date”) and continues thereafter until the sooner of: (i) six months following the termination or expiration of all Order Forms; or (ii) the effective date on which this Agreement is terminated in accordance with this Section 11 (the “Term”).Customer’s Subscribers are authorized to use or access the Solutions for the period specified in an Order Form (each a “Subscription Term”). Each Subscription Term automatically renews on Xactly’s then current rates for the applicable Solution, unless either party provides written notice of non-renewal at least sixty (60) days prior to the expiration of the then current Subscription Term. Xactly may increase the Subscription fees at the beginning of each year during the Subscription Term or upon any renewal Subscription Term. Customer’s Affiliates may execute Order Forms that incorporate by reference the terms of this Agreement, and in each such case, all references in this Agreement to Customer shall be deemed to refer to such Customer’s Affiliate for purposes of such Order Form. “Affiliate” means any entity that has direct or indirect ownership or control of more than 50% of the voting interests of the Customer.

1.2 Termination for Breach. Either Party may terminate this Agreement if: (i) the other Party makes an assignment for the benefit of creditors, ceases to do business, terminates its business operations, or becomes insolvent, or proceedings are instituted by or against it that are not terminated within sixty (60) days; (ii) the other Party materially breaches this Agreement and does not cure such failure within thirty (30) days’ of receipt of notice from the non-breaching Party; provided, that Xactly may immediately terminate this Agreement without prior notice or the opportunity to cure if the Customer’s material breach results in a violation of any laws, regulations and orders of the United States relating to export controls and trade sanctions (“US Export Controls and Trade Sanctions”).

1.3 Effect of Termination. Upon termination of this Agreement, all rights and licenses granted hereunder shall immediately cease, except that this Agreement remains in effect for any active Order Form until it expires or terminates. Within thirty (30) days of termination date (“Post Termination Period”) if requested by Customer in writing, Xactly shall provide Customer, at no charge, a copy of Customer Data in a standard, electronic format. After the Post Termination Period, Xactly shall delete any Customer Data in accordance with its retention policies. Termination does not relieve either Party from any obligation or liability that has accrued prior to the effective date of termination. If Xactly terminates this SSA due to Customer’s uncured breach, Customer shall remain liable for all charges in accordance with the Term of the Order Form(s) (“Customer Default”), and agrees to pay Xactly’s reasonable enforcement expenses (including attorney and collection agency fees). Termination shall not relieve Customer of its obligation to pay any fees accrued prior to the effective date of termination in accordance with the Agreement.

2. Grants and Licenses

2.1 Access Grant. Xactly grants to Customer a non-exclusive, non-transferrable (except as provided herein (Assignment)) right and license to: (i) access and use the Solutions set forth in one or more Order Forms; and (ii) grant access to the Solutions to the number of individuals authorized by Customer in the applicable Order Form to use the Solution (“Subscribers”). Each Subscriber must have their own Subscription. Customer may purchase additional Subscriptions at a pro-rata fee as Customer’s existing Subscription. Xactly shall invoice Customer and Customer shall pay, for any Subscribers more than the quantity listed on the Order Form.

2.2 Customer License. Customer grants to Xactly a royalty-free, non-exclusive, right and license to (i) display any logos, trademarks, service marks, or content provided by Customer (“Customer Marks”) on any Customer-branded interfaces or materials included in a Solution; (ii) store, use, and create derivative works from data and/or any data or information submitted by or on behalf of Customer or information provided by or on behalf of Subscribers (“Customer Data”) to provide the Solution and provide related support; (iii) aggregate Customer Data and User Data with data from other sources and/or Xactly Data to improve its Products; and (iv) create and distribute derivative works that are based on Customer Data that has been rendered unidentifiable and anonymous (“De-Identified Data”).

2.3 Xactly License. During the Term, Xactly hereby grants to Customer a limited, non-exclusive, revocable, non-transferable, royalty-free (subject to payment of all applicable Fees) license, to download, reproduce, use, perform, and display (and to sublicense the foregoing rights to its Subscribers): (i) the Products, Content, Documentation, and Content (including any logos, trademarks, service marks, or content contained therein (“Xactly Brand”)) made available or distributed by Xactly in connection with the applicable Solution; (ii) the reports, graphs, charts, and similar output generated by Customer’s use of the Solution (“Reports”); and (iii) the output generated by a Subscriber’s use of any AI provided as part of the Solution (“AI Output”).

2.4 Xactly Ownership. Xactly owns all IP Rights, in the Solution, including all improvements, modifications, or enhancements thereto and derivative works thereof (collectively, “Xactly Materials”). “IP Rights” means all patent, copyright, trademarks, trade secrets, know-how, techniques, concepts, ideas, methods, algorithms, models, formulas, and database rights, including any applications, continuations and goodwill. If Customer is deemed to have any ownership interest in any Xactly Materials or derivative work, enhancement, or other modification thereto, then Customer shall assign, and hereby does assign, irrevocably and royalty-free, all such ownership interest or other rights exclusively to Xactly and shall execute any documents necessary to perfect such assignments. Except for the rights granted to Customer herein, Xactly reserves all rights, title, and interest in and to the Solution, including all IP Rights inherent therein.

2.5 Customer Data. As between Xactly and Customer, Customer retains ownership of all rights, title, and interest in and to all Customer Data. Customer Data shall be considered Customer’s Confidential Information, subject to the terms of this Agreement.

2.6 Restrictions. Customer shall not: (i) provide Xactly with Protected Health Information (“PHI”), as such term is defined in the Health Insurance Portability and Accountability Act of 1996 as amended, biometric data, cardholder data (as defined in the current version of the Payment Card Industry Data Security Standards), Financial Information (as defined by the Gramm Leach Bliley Act), or any social security numbers, government identification numbers, credit card data, or tax information; (ii) modify, translate, reverse engineer, decompile, copy, disassemble, or remove any proprietary notices or labels from the Solutions; (iii) use any Solution in the performance of a time-sharing, rental, or service bureau; (iv) exceed the number of Subscribers stipulated in the applicable Order Form; (v) provide any data for a resident of any foreign jurisdiction unless the Parties have executed a Data Processing Agreement (“DPA”) that includes the applicable data export and transport provisions; (vi) upload to or use the Solution to send, store or transmit any viruses, worms, time bombs, Trojan horses, or other harmful or malicious code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Solution or the data contained therein, or attempt to bypass or circumvent any security or authentication measures or conduct any platform monitoring, penetration testing, vulnerability scanning, or other security assessments; (viii) attempt to gain unauthorized access to the Service or its related systems or networks; or (ix) use the Solution or any output or reports or component thereof to train any large language model or artificial intelligence program. Xactly reserves the right to monitor Customer’s and its Subscribers’ use of the Service to ensure compliance with the terms and conditions in this Agreement.

3. Xactly Policies

3.1 Xactly shall: (i) comply with all applicable laws in providing the Service and Professional Services; (ii) provide the Solution in accordance with the then current version of the following policies that are generally applicable to all Customers (“Xactly Policies”) at the online addresses listed below:

4. Fees and Payment

4.1 Fees. Customer shall pay all prices and payment terms for the Solution(s) (“Fees”) annually in advance, as specified in the Order Form. All undisputed Fees are due within thirty (30) days of receipt of invoice and all disputed amounts within ten (10) business days of resolution of such dispute. Customer must submit all billing disputes in writing within sixty (60) days of invoice and may only withhold disputed amounts up to twenty (20%) percent of any single invoice. Any undisputed amounts shall accrue interest at a rate equal to the greater of: (i) one and a half percent (1.5%) per month, or (ii) the highest rate permitted by Law, whichever is lower. Customer agrees to pay all amounts due without any setoff, deduction, or withholding for any reason. All fees are in USD, non-cancelable and are non-refundable. Fees for the Service are based on Subscriptions purchased during the Subscription Term and not actual usage. The number of Subscriptions purchased cannot be decreased during a Subscription Term. Customer agrees to accept invoices via email at the billing contact email address specified in the applicable Order Form. Customers located outside of the U.S. shall submit payment to Xactly via wire transfer. Xactly reserves the right to suspend access to the Solution if it does not receive payment of any sum due to it within thirty (30) days of the invoice due date.

4.2 Taxes. The Fees do not include any direct or indirect local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). All payments under this Agreement shall be made free and clear and without deduction of Taxes by Customer. Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Xactly’s net income or property. If Customer withholds any Taxes, Customer will gross up the payment to Xactly for the amount specified in the Order Form. If Xactly has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Xactly with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3 Annual Increases to Fees. Once per twelve (12) month period and upon no less than thirty (30) days’ prior written notice, Xactly may increase Fees in an amount equal to the greater of: (i) _________ or (ii) the percentage increase in the Consumer Price Index, Urban Consumers, All Cities Averaged 1982–84 Equals 100, during the prior calendar year.

5. Confidentiality

5.1 Confidential Obligations. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain written or oral information disclosed by the other that has been identified as confidential or that should be known to a reasonable person given the facts and circumstances of the disclosure, as being confidential or proprietary (“Confidential Information”). The Parties agree to treat and maintain as confidential and proprietary all Confidential Information furnished by the other Party pursuant to or in connection with this Agreement and an Order Form to the same extent and with the same degree of care as it uses in handling its own confidential and proprietary information of similar nature (but with not less than a reasonable degree of care), and further agree not to use such Confidential Information for any purpose other than the performance of any obligation under this Agreement or an Order Form. Neither Party shall disclose any Confidential Information to anyone other than each Party’s respective employees or its legal counsel, auditors, agents or consultants (collectively, “Representatives”) who are subject to appropriate confidentiality policies or are bound by appropriate confidentiality agreements with terms at least as protective as the terms set forth in this Section 6 and who have a need to know the Confidential Information.

5.2 Confidentiality Exceptions. Section 5(a) will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; (vi) is approved for release or disclosure by the disclosing Party without restriction; (vii) consists of any comments, commentary on any new features, functionality or improvements for Products and/or error reports provided by Customer to Xactly, provided that such use shall not identify Customer (“Feedback”); or (viii) constitutes De-Identified Data. Either Party may disclose Confidential Information to the limited extent required to establish such Party’s rights under this Agreement, including to make such court filings as it may be required to do, or comply with the order of a court or other governmental body or applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and make a reasonable effort to obtain a protective order. Customer agrees that it will not assert any limitations to Xactly’s right to use the Feedback or entitlement to compensation or recognition for Xactly’s use of the Feedback.

6. Warranties and Disclaimers

6.1 Mutual Warranties. Each party represents and warrants that: (i) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) the execution and performance of this Agreement will not conflict with or violate any Applicable Law; and (iii) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.

6.2 By Xactly. Xactly hereby represents and warrants to Customer that: (i) it is the owner and/or the licensee of all IP Rights relating to the Solutions (excluding any Customer Materials included therein) and has the necessary rights to grant all licenses hereunder; (ii) the Solutions shall perform in compliance with the then-current version of any Specifications as listed in the Order Form and published online by Xactly; (iii) the AI shall perform in accordance with all applicable Laws, including the EU AI Act’s requirements. Customer’s sole and exclusive remedy and Xactly’s entire liability, for a breach of the warranties set forth in this Section shall be for Xactly to use commercially reasonable efforts to correct the non-conforming features or functionality or re-perform the non-conforming Services.

6.3 By Customer. Customer warrants that it: (i) owns or otherwise has obtained all necessary rights, permissions, and consents to provide Customer Data to Xactly for processing as contemplated by this Agreement, and Customer Data does not and will not infringe upon the rights of any third-party; (ii) all information provided by Customer and its Subscribers will not provide false identity information to access or use the Service; and (iii) Customer’s use of the Service will comply with all applicable local, state, federal, and international laws and regulations, including, without limitation the EU AI Act, pursuant to which the AI, when used for purposes related to the recruitment, promotion, or management of workers, may be classified as a “High-Risk AI System” under the EU AI Act and Customer, as the user (or “deployer” under the EU AI Act), is solely responsible for: (1) using the AI in accordance with this Agreement and Xactly’s documentation; and (2) ensuring an appropriate level of human oversight over any AI Output.

6.4 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOLUTION AND ALL COMPONENTS THEREOF, AND ALL XACTLY MATERIALS, ARE PROVIDED “AS IS,” “WHERE IS”, AND “AS AVAILABLE,” AND WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, XACTLY, ITS AFFILIATES, THIRD PARTY SERVICE PROVIDERS, RESELLERS, AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. XACTLY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, XACTLY MAKES NO WARRANTY OF ANY KIND THAT XACTLY INTELLIGENCE OR ANY AI OUTPUT WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, OR THAT ANY PARTICULAR AI OUTPUT WILL BE UNIQUE OR NOT SIMILAR TO AI OUTPUT GENERATED FOR OTHER CUSTOMERS. ALL AI OUTPUT IS PROVIDED “AS IS” AND DOES NOT CONSTITUTE THE PROVISION OF LEGAL, FINANCIAL, OR TAX ADVICE IN ANY MANNER OR ENSURE CUSTOMER’S COMPLIANCE WITH APPLICABLE LABOR OR EMPLOYMENT LAWS.

7. Indemnification

7.1 By Xactly. Xactly shall indemnify, defend, and hold harmless Customer, its officers, directors, and employees (“Customer Indemnitees”) against all damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) finally awarded against Customer Indemnitees by a court or arbitrator of competent jurisdiction (“Losses”), arising out of any third-party claims, demands, suits, or proceedings brought against Customer Indemnitees alleging that Customer’s use of the Solution in accordance with the Documentation, but expressly excluding any AI Output, directly infringes or misappropriates any valid and enforceable patent, copyright, trademark, or trade secret of a third party (“Infringement Claim”). Xactly shall have no indemnification obligation for any Infringement Claim arising from: (i) use of the Solution in combination with any hardware, software, data, or processes not provided by Xactly, if the infringement would not have occurred but for such combination; (ii) any modification to the Service not made by Xactly; or (iii) Customer Data. In the event of an Infringement Claim, Xactly may, at its option, either (1) obtain for Customer, at no additional cost, the right to continue to use the Solution, (2) replace or modify the Solution to eliminate the Infringement Claim, or (3) terminate the applicable Order Form and refund to Customer any pre-paid but unused Fees paid for the Solution.

7.2 By Customer. Customer shall indemnify, defend, and hold harmless Xactly, its officers, directors, and employees (“Xactly Indemnitees”) against all Losses arising out of any claims brought against Xactly Indemnitees in connection with or relating to: (i) Customer Data; (ii) Customer’s or its Subscribers’ use of the Service in violation of this Agreement; or (iii) arising from Customer’s use of, or implementation of any plan or business decision based on, any AI Output.

7.3 Procedure. The party seeking indemnification (the “Indemnified Party”) shall provide the party obligated to provide such indemnification (the “Indemnifying Party”) with: (i) prompt written notification of the claim; (ii) sole control and authority over the defense or settlement of the claim; and (iii) reasonable assistance. The Indemnifying Party may settle the claim provided that if any settlement requires any action or admission by the Indemnified Party other than payment of money, the Indemnifying Party shall obtain Indemnified Party’s prior written consent. Failure by the Indemnified Party to provide prompt notice of a claim shall not relieve the Indemnifying Party of its obligations unless such failure or delay materially prejudices the defense of the claim.

8. Limitation of Liability

8.1 General. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, OR TO ANY RELATED PARTY, FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, (EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF), WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES, OR ANY OTHER LEGAL THEORY. THE AMOUNT OF XACTLY’S AND ITS RELATED PARTIES’ CUMULATIVE LIABILITY UNDER ANY AND ALL CLAIMS FOR LOSS OR LIABILITY ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES ACTUALLY PAID BY CUSTOMER TO XACTLY FOR THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PROVISIONS SET FORTH IN THIS SECTION 8 SHALL APPLY REGARDLESS OF THE FORM OR ACTION OR THEORY OF LIABILITY AND EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF DAMAGES AND WHETHER DAMAGES WERE REASONABLY FORESEEABLE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO FAIL OF ITS ESSENTIAL PURPOSE.

8.2 Exclusions. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO EITHER PARTY’S OBLIGATION OF SECTION 7 (INDEMNIFICATION), THE LIABILITY FOR WHICH SHALL IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT NOT EXCEED THE GREATER OF THREE (3) TIMES THE AGGREGATE FEES ACTUALLY PAID BY CUSTOMER TO XACTLY FOR THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR ONE MILLION DOLLARS ($1,000,000). THE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO CLAIMS FOR FEES PAYABLE UNDER THIS AGREEMENT. NOTHING CONTAINED IN THIS SECTION 8 SHALL APPLY TO ANY CLAIM OF INFRINGEMENT BROUGHT BY XACTLY WITH RESPECT TO INFRINGEMENT OF ITS INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER UNDER ANY STATUTE.

9. General Provisions

9.1 Export Control and Anti-corruption Laws. Each party shall comply with all applicable export control, economic sanctions, and anti-corruption laws and regulations, in the performance of this Agreement, including the use and transfer of any Services subject to this Agreement.

9.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries under this Agreement.

9.3 Notices. Except as otherwise specified, all notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon the date it was delivered by courier, if to the Customer, to the addresses set forth in the applicable Order Form, and if to Xactly, to the attention of General Counsel at 1125 17th Street, Suite 1700, Denver, CO 80202.

9.4. Waiver and Cumulative Remedies: No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

9.5. Assignment: Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms and Statements of Work), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

9.6 Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.

9.7 Venue; Waiver of Jury Trial. The state and Federal courts located in Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts and waives any objection it might otherwise have to venue, personal jurisdiction, inconvenience of forum, and any similar or related doctrine. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

9.8 Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, computer, telecommunications, Internet service provider or hosting facility failures, or delays involving hardware, software, or power systems not within Xactly’s possession or reasonable control, and denial of service attacks (each a “Force Majeure Event”). The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof), it being understood that a Force Majeure Event shall not excuse any obligation of Customer to pay invoices due in accordance with the provisions hereof. The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event with reasonable dispatch. Either party may terminate this Agreement in the event the Force Majeure Event continues for more than forty-five (45) days.

9.9 Publicity. Either party may reference the name and logo of the other party in lists of customers or vendors. Either party may issue press releases relating to this Agreement with the other party’s prior written consent.

9.10 Entire Agreement. This Agreement, including all exhibits, addenda, Order Forms, and Statements of Work, constitutes the entire agreement between the parties, and supersedes all prior discussions, proposals, or representations, written or oral, concerning its subject matter. The parties are not relying on any representations or warranties not expressly stated in this Agreement. Any modification, amendment, or waiver of any provision of this Agreement must be in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit, addendum, Order Form, or Statement of Work, the terms of the latter document shall govern. Any additional or conflicting terms on any purchase order or other preprinted forms shall be null and void. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision and the remaining provisions shall be in full force and effect.