THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND ENABLED USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by downloading, accessing or using SenseiOS™ or Conductor™, or authorizing or permitting any Agent or Enabled User to access or use SenseiOS™ or Conductor™, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Klick that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer”, “Enabled User,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use SenseiOS™ or Conductor™.
1.1 . “Business Day” means 9.00a.m – 5.00p.m Eastern Standard Time on any day (other than Saturday, Sunday and any day which is a legal holiday in the Province of Ontario).
1.2 . “Customer Content” means all information and data (including but not limited to proprietary images, video, audio, documents, customer information) or any other content in any media and format provided or made available to Klick by or on behalf of Customer for use in relation to the Customer’s use of SenseiOS™ or Conductor™.
1.3 . “Enabled User(s)” means individuals who are authorized by Customer to use SenseiOS™ or Conductor™, have user accounts on the Customer’s instance of SenseiOS™ or Conductor™ that are set to “Enabled”, and who have either been supplied user identifications and passwords by Customer (or by Klick at Customer’s request) or are authorized to login via the Customer’s Single Sign On (SSO) environment. Enabled Users may include, without limitation, the employees, consultants, contractors, agents or other designees of Customer including the employees of Customer’s Affiliates.
1.4 . “Klick” means Klick Inc., an Ontario, Canada corporation, or any of its successors or assignees.
1.5 . “SenseiOS™” or “Conductor™” means Klick’s proprietary software that allows Enabled Users to manage and publish to multiple networking sites supported by SenseiOS™ or Conductor™, including any derivatives, modifications or Updates, if any, and including any supplemental software code, documentation, or other material provided to Customer as part of the Services, whether in written or digital format.
2. Klick Services
2.1 . Use of Services. Access to and usage of the SenseiOS™ or Conductor™ platform is provided on a fixed term subscription basis as more fully set-out in the applicable Order Form(s) (the “Services”).
2.2 . Customer’s Content License. Customer grants to Klick a limited, non-exclusive, non-transferable license, without right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer’s Content for the purpose of providing Services to Customer hereunder and to support Customer’s use of SenseiOS™ or Conductor™.
2.3 . Klick may update SenseiOS™ or Conductor™ and such Updates may result in changes in the appearance and/or functionality of SenseiOS™ or Conductor™. No Update shall disable, delete or significantly impair SenseiOS™ or Conductor™. Excluding the addition of wholly new products, Klick shall provide, implement, configure, install, support and maintain any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches and modifications to SenseiOS™ or Conductor™ (collectively, the “Updates”).
2.4 . Hosting Services; Service Levels. Klick shall host, serve, distribute and enable the availability of SenseiOS™ or Conductor™ and shall ensure that SenseiOS™ or Conductor™ is available to Customer in accordance with the service level commitment and response times set forth in the Service Level Agreement (the “Service Levels”).
2.5 . Customer Responsibilities. Customer shall (i) be responsible for Enabled Users’ compliance with this Agreement; (ii) be solely responsible to disable inactive users within the SenseiOS™ or Conductor™ Admin tools; (iii) be solely responsible for the accuracy, quality, integrity and legality of Customer Content and of the means by which it acquired the Customer Content; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of SenseiOS™ or Conductor™ and prevent any third party from accessing or using SenseiOS™ or Conductor™; (v) be solely responsible and liable for all activity conducted through its account in connection with SenseiOS™ or Conductor™; (vi) notify Klick promptly if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft or unauthorized disclosure or use of its password(s) or account; and (vii) use SenseiOS™ or Conductor™ only in accordance with applicable laws and government regulations. The Customer must not: (a) reverse engineer, de-compile, hack, disable, disrupt, interfere with, disassemble, copy, decrypt, reassemble, supplement, translate, adapt or enhance any of the Services, SenseiOS™ or Conductor™ including any hardware or software used to provide the Services or any markings of Klick’s proprietary rights; (b) upload to or transmit to SenseiOS™ or Conductor™ any content or anything else that (if reproduced, published, transmitted or used) may violate any law including intellectual property, privacy or other laws, or give rise to civil or other liability; (c) upload to or transmit from SenseiOS™ or Conductor™ any data, file, software or link that contains or redirects to a virus, Trojan horse, worm or other harmful component; (d) disclose results of any Services or SenseiOS™ or Conductor™ benchmark tests without Klick’s prior written consent; (e) interfere with SenseiOS™ or Conductor™ or any third party's use of SenseiOS™ or Conductor™ or authorize or encourage any third party to do any of the above.
2.6 . Third-party Websites. Customer acknowledges that SenseiOS™ or Conductor™ may enable or assist it to access, correspond with, and purchase services from, third parties via third-party websites and that it does so solely at its own risk. Klick makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party and not Klick.
2.7 . Non-Exclusivity. Customer acknowledges that the rights granted to it are nonexclusive, and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Klick’s right to (a) license, sell or otherwise make available SenseiOS™ or Conductor™ or Services to any third party; (b) perform any services for any third party; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.
2.8 . Third-party Contractors. Klick may use third party contractors to provide some or all of the Services. The Services may be provided using servers and other equipment located in any country including Canada, the United States and elsewhere.
2.9 . Klick Employees/Contractors. Customer will not directly or indirectly at any time during the Term, or for twelve (12) months thereafter: (a) induce or encourage any employee or contractor of Klick to leave his or her employment or engagement with Klick; or (b) employ, attempt to employ, assist any person to employ, or retain as a consultant or contractor, any employee or contractor or former employee or contractor of Klick without Klick’s prior written consent.
2.10 . If Customer registers for a free trial for any of the Services, Klick will make such Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by Customer for such Service(s); or (c) termination of the trial by Klick, in Klick’s sole discretion. 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. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
2.11 . ANY CUSTOMER CONTENT YOU PROVIDE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE BY OR FOR YOU DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH CUSTOMER CONTENT, BEFORE THE END OF THE TRIAL PERIOD.
3. Intellectual Property
3.1 . SenseiOS™ or Conductor™. Klick retains all right, title and interest in SenseiOS™ or Conductor™ and except for the limited rights and licenses granted to Customer pursuant to this Agreement and subject to the applicable obligations and restrictions set forth herein, nothing shall be construed to restrict, impair, encumber, alter, deprive or adversely affect SenseiOS™ or Conductor™ or any of Klick’s rights or interests or any other of Klick’s intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials or rights, tangible or intangible. All rights not expressly granted in this Agreement are reserved by Klick.
3.2 . Customer Content. Subject only to the limited license expressly granted hereunder and Klick’s rights under Section 2, Customer shall retain all right, title and interest in and to the Customer Content and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Klick any right of ownership or interest in the Customer Content or the Intellectual Property rights therein. Customer is solely responsible for the Customer Content that Enabled Users upload, publish, display, link to or otherwise make available (hereinafter, “post”) on SenseiOS™ or Conductor™ and Customer agrees that Klick is only acting as a passive conduit for the online distribution and publication of the Customer Content. Klick will not review, share, distribute, or reference any such Customer Content or post except as provided herein or as may be required by law. Customer agrees to take commercially reasonable steps to ensure that Enabled Users do not post Customer Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an Enabled User, or any other person or entity; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; or (vi) contains any information or content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships. Customer represents and warrants that the Customer Content does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights or rights of publicity and privacy. Customer understands and agrees that any loss or damage of any kind that occurs as a result of the Customer Content is solely Customer’s responsibility. Klick is not responsible for any public display or misuse of posts, or Customer Content, except in the case of gross negligence or intentional misconduct by Klick or its employees. Customer agrees that it will prohibit Enabled Users from uploading material to SenseiOS™ or Conductor™ in violation of the Intellectual Property Rights of any person. Customer also acknowledges that Klick may use Customer Content and general Customer information for the purpose of supporting and developing SenseiOS™ or Conductor™ and to incorporate into the Services any suggestions, enhancements or recommendations by Customer, on the condition that Klick utilizes such information in a form that will not personally identify Customer.
4. KLICK PRODUCTS AND FEES
4.1 . The Customer will pay all fees as described in the Order Form(s) (the “Fees”).
4.2 . Klick shall invoice Customer for the Fees as set forth on the applicable Order Form(s). All Fees shall be stated and payable in U.S. dollars and are non-refundable. Customer shall pay all invoices within thirty (30) days of receipt. Any disputed amounts shall not affect payment of non‑disputed amounts. Customer shall make payments to the entity and address set forth in the invoice.
4.3 . Late Payment. If any amounts invoiced are not received by Klick by the due date, then at Klick’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Klick may also terminate this Agreement should Customer fail to make any payment when due.
5. Confidential Information and Security Requirements
5.1 . Confidential Information. Each party will keep the other party's Confidential Information strictly confidential, and will not: (a) use it or take any benefit from it except as required to perform or receive the Services, or (b) disclose it to anyone unless the other party consents or unless the recipient is required by law or court order to do so. In this agreement, "Confidential Information" means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products or services of a party (the "Discloser") but excludes any information that the other party (the "Recipient") proves (a) was lawfully in the Recipient's possession before receiving it from the Discloser; (b) is provided in good faith to the Recipient by a third party without breaching any rights of the Discloser or any other party; or (c) is or becomes generally available to, or accessible by, the public through no fault of Recipient.
5.2 . Security Requirements. Klick has implemented technical and organizational measures consistent with the prevailing industry standards designed to secure Customer Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, Klick cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Content for improper purposes.
6. Term and Termination
6.1 . This Agreement shall commence on the Effective Date and shall continue as described in the Order Form unless terminated as described below (the “Initial Term”). After the Initial Term, this Agreement will automatically renew for subsequent one-year renewal terms unless a party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (each a “Renewal Term”).
6.2 . Termination for Cause. A Party may terminate this Agreement for cause (i) upon one hundred and twenty (120) 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.
6.3 . Effects of Termination. Upon termination of this Agreement for any reason: (a) Customer will immediately cease all use of SenseiOS™ or Conductor™; and (b) Customer will have no further access to its account in SenseiOS™ or Conductor™. Account access will be disabled at close of business on the last day of the then-current term, or, if such day is not a Business Day, at close of business on the latest Business Day preceding the last day of the then-current term (the “Termination Date”). Klick will provide Customer with one (1) data extract of Customer Content in a standard format within two (2) weeks of receipt of Customer’s request for a data extract. For an additional fee, and at Customer’s request, Customer may request additional data extracts or data extracts in a specified format. Alternatively, for an additional fee, and at Customer’s request, Klick may grant access to SenseiOS™ or Conductor™ for up to ten (10) Customer users for up to sixty (60) days after termination, solely to the extent necessary for Customer to retrieve Customer Content. During the sixty (60) day period, the Customer’s server will be downsized to our smallest server size. This may impact performance. Klick has no obligation to retain Customer Content, which may be deleted sixty (60) days after termination.
6.4 . Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, including, without limitation, Article 1, Section 2.5, 2.7, 2.9 Article 3, Article 5, Section 6.3, this Section 6.4, Article 7 Article 8, Article 9 and Article 10 shall survive the expiration or termination of this Agreement.
7. Representations and Warranties; Warranty Disclaimer
7.1 . By Both Parties. Each Party represents and warrants that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required under this Agreement; (b) the execution and performance of its obligations under this Agreement do not violate any other agreement to which it is a party; (c) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered; and (d) all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.
7.2 . By Klick. Klick further represents, warrants and covenants to Customer that during the Term (a) Klick owns or has sufficient rights in SenseiOS™ or Conductor™ to grant to Customer the rights to use SenseiOS™ or Conductor™; and (b) the functionality of SenseiOS™ or Conductor™ will not be materially decreased during the Term.
7.3 . Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, KLICK EXCLUDES ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KLICK SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE OR FREE OF VIRUSES NOR DOES KLICK WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KLICK OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. KLICK DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES INCLUDING ANY LOSS OF CUSTOMER’S DATA. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF AN ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. KLICK DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH SENSEIOS OR CONDUCTOR, INCLUDING BUT NOT LIMITED TO THE CUSTOMER CONTENT, OR ANY CONTENT, OR SERVICES PROVIDED BY THIRD PARTIES.
8. Mutual Indemnification
8.1 . Indemnification by Klick. Klick shall defend, indemnify and hold Customer and its directors, officers, employees and agents harmless from and against any and all third-party claims that the Services as provided by Klick infringe or misappropriate the intellectual property rights of a third party (a "Claim"); provided that Customer (a) promptly gives Klick written notice of the Claim; (b) gives Klick sole control of the defense and settlement of the Claim; and (c) provides to Klick all reasonable assistance. Klick will have no liability for any Claim to the extent it (i) is based on modification of SenseiOS™ or Conductor™ by or at the direction of Customer or an Enabled User; (ii) results from the failure of Customer to use an updated version of SenseiOS™ or Conductor™ made available to Customer; (iii) is based on the combination or use of SenseiOS™ or Conductor™ with any other software, program or device not provided or specified by Klick if such infringement would not have arisen but for such use or combination; or (iv) results from Customer’s operation of SenseiOS™ or Conductor™ in a manner that is inconsistent with its intended use. For avoidance of doubt, Klick’s indemnification obligations in this section will not apply to third-party content accessed through SenseiOS™ or Conductor™.
8.2 . Indemnification by Customer. Customer shall defend, indemnify and hold Klick, its affiliates, directors, officers, employees and agents harmless from and against all claims, losses, damages, penalties, liability and costs, including reasonable legal fees of any kind or nature which are in connection with or arising out of Customer’s use of SenseiOS, or the breach of any terms of this Agreement.
8.3 . Exclusive Remedy. This “Mutual Indemnification” Section along with the remedies detailed in the Service Level Agreement state 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.
9. Limitation of Liability
9.1 . LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE fees paid or payable by CUSTOMER FOR SERVICES DURING THE three (3) month PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
9.2 . TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KLICK, ITS DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL KLICK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
9.3 . CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICE ARE SET FORTH IN THE SERVICE LEVEL AGREEMENT.
9.4 . THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KLICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.5 . NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF KLICK FOR (I) THE DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF KLICK, ITS EMPLOYEES OR ITS AGENTS, OR (II) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
10.1 . Neither party may assign any of its rights or obligations without the prior written consent of the other party (not to be unreasonably withheld). Klick may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
10.2 . Klick may audit Customer’s use of the Services and Customer agrees to provide reasonable assistance and access to information without cost. Customer agrees to pay within thirty (30) days of written notification any Fees applicable to Customer’s use of the Services in excess of what is provided under this Agreement. Klick may, at its sole discretion, terminate this Agreement if Customer refuses to pay such Fees.
10.3 . Relationship of the Parties. Each Party is an independent contractor. Nothing in this Agreement shall be construed or deemed to constitute a joint venture, partnership or business entity of any kind.
10.4 . Force Majeure. Neither party will be in default or liable for any delay or failure to comply with this Agreement due to any act beyond the control of the affected party.
10.5 . Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties.
10.6 . No amendment, supplement, restatement or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each party to this Agreement.
10.7 . Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the illegality, invalidity or unenforceability of that provision will not affect the legality, validity or enforceability of the remaining provisions of this Agreement, or of that provision in any other jurisdiction.
10.8 . Klick may identify Customer as a recipient of the Services and use its logo(s) in sales presentations, marketing material, and press releases and for promotional purposes.
10.9 . All notices and other communication between the Parties must be in writing and will be deemed given if delivered by hand, double registered mail, or faxed to the recipient at its address set out on the first page of an Order Form or at such other address or telecommunication number of which the party gives the other notice. Proof of delivery in that manner will constitute proof of receipt.
Waivers. No waiver of any provision of this agreement is binding unless it is in writing and signed by all the parties to this Agreement. No delay or failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
10.11 . Governing Law. This Agreement and each of the documents in connection with this Agreement are governed and will be enforced and interpreted exclusively in accordance with, the laws applicable in the Province of Ontario.
10.12 . Entire Agreement. This Agreement, together with the Exhibits constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, written or oral with respect to the subject matter hereof.