Subscription AgreementDownload Subscription Agreement
We are XTM International Ltd, a limited liability company incorporated and existing under the laws of England and Wales, with company number 4217452, whose registered office address is at 7/8 Eghams Court, Boston Drive, Bourne End, Bucks, SL8 5YS, UK (“XTM International/We/Us/Our”).
XTM International is a software development company that specialises in translation software and technology.
This Subscription Agreement (“Agreement”) governs Your acquisition and use of Our Services which includes one or more of the following:
- Your 30-day free trial of the Services; or
- Your use of the Services as a Subcontractor to a paid subscriber to the Services; or
- If you purchase Our Services, Your purchase and on-going use of those Services.
By accepting this Agreement, either by clicking a box indicating Your acceptance, signing an order form that references this Agreement, or using the Services You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Services.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 9th of July 2019. It is effective between You and Us as of the date of You accepting this Agreement. This Agreement is subject to revision. If We make any substantial changes, We will notify You in accordance with Section 15.2.
- “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
- “Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
- “Personal Data” means any information relating to (i) an identified or identifiable natural person and, (ii) an identified or identifiable legal entity which may be submitted by You to the Services or is otherwise processed by Us in relation to the Services.
- “Purchased Services” means Services that You purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.
- “Service” means the single or multi-tenant online, Web-based application provided by Us via the internet as described in the User Manual.
- “Subcontractor” means an authorised entity that uses the Services either
- through a licence purchased by You on the Subcontractor’s behalf; or
- directly via its own Purchased Services.
- “Subscription Term” means the period of time during which Users are permitted to use the Services hereunder, as specified in the applicable Order Form and including all renewals or extensions thereof.
- “Test Server” means You can test early releases (relating to Service upgrades) and integration You may have developed using Our API.
- “Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
- “User Manual” means the XTM User Manual to be found at the following link [https://xtm.cloud/docs/xtm-manual.pdf]. You acknowledge that You have had the opportunity to review the User Manual.
- “Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
- “You” or “Your” means the company or other legal entity for which You are accepting this Agreement.
- “Your Data“means all electronic data or information, which may include personal data, submitted by You to the Services including, Users’ names and emails, source files, target files, translation memories, terminology information and customers.
- Third Party Services. Means services offered by third parties that may be accessed by you from within the Services used to assist with translation.
3. 30-DAY FREE TRIAL
- If the Services have been made available to You on a trial basis, it will be free of charge until the earlier of (a) the thirtieth day after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- Any data You enter into the Services, and any customizations made to the Services by or for You, during your 30-day free trial will be permanently lost unless You purchase a subscription to the same Services as those covered by the trial, or export such data, before the end of the 30-day trial period.
- Notwithstanding section 10 (Warranties and Disclaimers), during the 30-day free trial the Services are provided “as-is” without any warranty.
- Please review the User Manual during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
4. SERVICES FOR SUBCONTRACTORS
- The Services may be made available to You, in order for You to perform Subcontractor tasks, on the basis of Your acceptance of this Agreement. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- While using the Services as a Subcontractor Your access will be limited to working on tasks assigned to You by the Principal Contractor (being the paid subscriber) for a project. Your rights to use the Services is dependent and subject to the Principal Contractor and its Subscription Period. You can obtain full access to the Services by purchasing the Services.
- While accessing the Services as a Subcontractor You will either:
- utilise one or more of the Principal Contractor’s paid concurrent licences and be limited to working on tasks assigned to You by the Principal Contractor; or
- purchase the Services directly and thus be afforded unrestricted usage of the Services.
5. PURCHASED SERVICES
- Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a Subscription Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features, unless a description of such functionality or features are attached to this agreement and signed by both parties.
- User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users. (ii) At any point during the subscription period a new revised subscription of a different type, with a different number of users or with a different expiry date can be purchased at the standard published price. An invoice will be raised for the new subscription and credit note will be issued for the unused part of the existing subscription, but no refunds are given. (iii) Temporary additional User subscriptions may be added and used during the Subscription Term. The price for temporary users is published in the system.
- Test Server. You shall have access to the Test Server but such Test Server may be updated by Us at any time. No service level guarantees are provided by Us to You in
relation to your use of the Test Server and therefore no uptime guarantee is given.
Data stored on the Test Server shall be subject to the below;
(i) projects created by You will be archived by Us after 3 days;
(ii) archived projects will be deleted by Us after 7 days;
(iii) any and all files created by You (such as target, preview, offline) will be deleted by Us after 2 days;
(iv) all uploaded offline files will be deleted by Us after 2 days;
(v) at Our sole discretion We may delete translation management and terminology if We deem a large volume is imported; and
(vi) any data migration from Your XTM cloud instance is chargeable. If such configuration files (analysis templates, etc) are not specific to You they may be migrated free or charge at the absolute discretion of Us.
6. USE OF THE SERVICES
- Our Responsibilities. We shall: (i) perform the Services in a timely, reliable and professional manner, in conformity with good industry practices (ii) provide the Services only in accordance with applicable laws and government regulations.
- Your Responsibilities. You shall (i) be responsible for Your and/or the Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, (iv) co-operate with Us in all matters relating to the Services; (v) provide Us, our employees, agents, consultants and subcontractors, with access to the Your premises, networks, systems and other facilities as reasonably required for Us to provide the Services, (vi) provide Us with such information and materials as We may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; and (vii) use the Services only in accordance with Your own internal business purposes, the User Manual and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
- Usage Limitations. Services may be subject to other limitations, such as, for example, limits on the number of words that can be translated, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Manual. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
- Fair Use. You acknowledge that the Services depend on finite resources shared amongst many customers. You agree not to use the Services excessively or unreasonably. Our Service Plans (found either at https://xtm.cloud/pricing/ or as set out in Your Proposal) may or may not specify usage limitations as outlined in 6.3. The omission of any such limit does not imply a literally unlimited consumption allowance, even if the term “unlimited” is used by Us or others in describing any aspect of the Service Plans. Excessive consumption of the Services may be identified with reference to significant variations from the average consumption by comparable customers. If You are found to be consuming the Services excessively, We will contact You and work with you to remedy the situation. We may make recommendations regarding, for example, system design and configuration, user training, your internal support procedures. However, if heavy usage is expected to continue, we reserve the right to upgrade You to a more suitable Service Plan. You agree to make good faith efforts to remedy excessive consumption. If You have any doubt regarding your usage, please do not hesitate to contact Us.
- Authorisations. You are responsible for securing all licences, authorisations and consents required for You and your personnel to use the Services.
7. FEES AND PAYMENT FOR PURCHASED SERVICES
- User Fees. You shall pay all fees as specified in the Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in GB Pounds, US dollars or Euros (ii) fees are based on Services purchased and not actual usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable, and (iv) the value of subscriptions purchased cannot be decreased. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof. Any additional services required by You that fall outside of the scope of the Services will be charged at the prevailing XTM day rate and will be confirmed with You prior to it being incurred.
- Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 13.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
- Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 7.2 (Invoicing and Payment).
- Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
- Payment Disputes. We shall not exercise Our rights under Section 7.3 (Overdue Charges) or 7.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
- Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. PROPRIETARY RIGHTS
- In consideration for payment of the fees, We grant to You non-exclusive, non-transferable (except as otherwise permitted under this Agreement), revocable, licence to access and use the Services in accordance with Your internal business purposes.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
- Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
- Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
- Third Party Intellectual Property Rights. You acknowledge that, in respect of any Third Party Intellectual Property Rights in the Services, Your use of any such Intellectual Property Rights is conditional on Us obtaining a written licence from the relevant licensor on such terms as will entitle Us to license such rights to You. We shall provide the Third Party Applications or Third Party Services under the standard licence terms provided by the relevant third parties (the Third Party End User Licence(s), copies of which shall be provided to You), and You agree to be bound to the relevant third parties by such licence terms. You shall comply with the Third-Party End User Licences and shall indemnify and hold Us harmless against any loss of damage which We may suffer or incur as a result of Your breach of such terms howsoever arising.
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
10. WARRANTIES AND DISCLAIMERS
- Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
- Our Warranties. We warrant that (i) the Services shall perform materially in accordance with the User Manual, and (ii) the functionality of the Services will not be materially decreased during a Subscription Term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below.
- Disclaimer. Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
- Limitation of remedies: Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, Our liability for any breach of that condition or warranty is limited, at the Our option, to:
- supplying the Services again; and/or
- paying the costs of having the Services supplied again.
11. MUTUAL INDEMNIFICATION
- Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defence and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. The indemnity in this clause 11.1 does not apply to the extent that a Claim arises from or in connection with (i) Your breach of the Agreement; (ii) use of the Services in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by Us; or (iii) Your Data or any third party data.
- You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
- Exclusive Remedy. This Section 11 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
12. LIMITATION OF LIABILITY
- Limitation of liability. In no event shall Our aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by You hereunder or, with respect to any single incident, the lesser of £100,000 or the amount paid by You hereunder in the 12 months preceding the incident. The foregoing shall not limit Your payment obligations under section 7 (fees and payment for purchased services).
- Exclusion of Consequential and Related Damages. In no event shall We have any liability to You for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not You have been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
- Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
13. TERM AND TERMINATION
- Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period.
- Term of Purchased User Subscriptions.User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% over the pricing for the relevant Services in the immediately prior Subscription Term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
- Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Refund or Payment upon Termination. Upon any termination for cause by You, We will not refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
- Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to You for download a file of Your Data in a standard format along with source and target files in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
- Surviving Provisions. Section 7 (Fees and Payment for Purchased Services), 8 (Proprietary Rights), 9 (Confidentiality), 10.3 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13.4 (Refund or Payment upon Termination), 13.5 (Return of Your Data), 14 (Governing Law) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.
14. GOVERNING LAW
- This Agreement will be governed and construed in accordance with the laws of England.
15. GENERAL PROVISIONS
- 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.
- Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
- Third Parties. A person who is not a party to the Contract shall not have any rights under or in connection with it under the Contracts (Rights of Third Parties) Act 1999.
- 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.
- Data Processing and Protection. Both parties shall at all times comply with all Data Protection Legislation when undertaking the Services. You acknowledge that where We carry out activities on Your instructions using Personal Data, You are the Data Controller and We are the Data Processor in respect of the Personal Data provided. Both parties agree that the terms of the Data Processing Agreement (available at https://xtm.cloud/data-processing-agreement/) governs processing of any Personal Data flowing from this Agreement. All Personal Data shall remain Your property.
- Third-Party Applications and Third-Party Services.The Service may present links to Third-Party Applications or Third-Party Services not owned or operated by Us. We are not responsible for the availability of these Third-Party Applications or Services or their contents. You agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with Your use of or reliance on any content of any such Third-Party Application or Service.
- Severability.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 to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Legal Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 7.2 (Invoicing and Payment)
- Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent from Us (not to be unreasonably withheld).
- Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit hereto or any Order Form, the terms of this Agreement, shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.