POLISHED SUBSCRIPTION SERVICE AGREEMENT
PLEASE READ THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ACCESSING AND USING THE POLISHED ONLINE SERVICE (“POLISHED”) OFFERED BY TYCHOBRA, LLC (“TYCHOBRA”). THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF TYCHOBRA’S POLISHED. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE TYCHOBRA’S POLISHED. BY ACCEPTING THESE TERMS BELOW, BY USING TYCHOBRA’S POLISHED IN ANY MANNER, OR BY AGREEING TO AN ORDER FORM, YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. 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 POLISHED.
1.1 “Customer Data” means all electronic data submitted by Customer and Customer’s Users to Tychobra.
1.2 “Documentation” means those user guides and other technical reference documentation for Polished that Tychobra makes available to the developer community as updated by Tychobra from time to time.
1.3 “Customer Application” means an online, cloud-based, on-premise, or mobile application that interoperates with Polished and adds significant new and distinct functionality to the Polished service. Customer Application shall not be an offering that competes with or replaces the features or functionality of Polished.
1.4 “Polished” means the on-line, web-based application and user access management service provided by Polished, and any related materials provided by Tychobra for Customer’s use as part of Polished, as described in the applicable Documentation. Polished may be made available either at no cost, or for certain fees, as set forth in this Agreement and any applicable Order Form.
1.5 “Order Form” means either a digital or physical ordering document that specifies the applicable Polished services or plans purchased by Customer under this Agreement. Unless otherwise set forth in the Order Form, each Order Form’s term shall be 30 days, and each Order Form shall auto-renew unless either party provides written or electronic notification of its intent not to renew.
1.6 “Term” means the length of time that this Agreement shall be in effect, whereby it shall commence on the earlier of (i) the date that Customer accepts these terms or (ii) the date Customer first uses Polished, and shall continue until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
1.7 “User” means an individual who is authorized by Customer to use Polished, and who has been supplied a user identification and password by Customer or by Tychobra at Customer’s request. “Development Users” are Users who are employees or contractors of Customer who are engaged in development, testing or support of the Customer Application on Customer’s behalf. “End Users” are Users who are employees, consultants, contractors, or agents of Customer’s end customers that have each obtained authorization to use the Customer Application and Polished from Customer for internal production (i.e., non-development) use. All Users shall be bound by obligations and restrictions consistent with, and no less protective of Tychobra than those set forth in, this Agreement.
2. Provision of Polished.
2.1 Subscription. Subject to compliance with the provisions of this Agreement and any applicable Order Form, Tychobra grants to Customer a limited, non-sublicensable, non-exclusive, non-transferable right during the Term (defined in Section 11) (a) to allow its Development Users to access and use Polished in accordance with the Documentation supplied by Tychobra for the purpose of developing an integration between the Customer Application(s) and Polished, and for testing and supporting such integration; and (b) to provision subscriptions to Polished to End Users for use solely in combination with and as integrated with, the Customer Application(s) and solely for such End Users’ internal business purposes. Customer’s rights in Polished will be limited to those expressly granted in this Section 2, and Tychobra reserves all other rights, title, and interest therein.
2.2 Restrictions. Customer is responsible for all activities conducted under its and its Users’ logins to access Polished. The following limitations apply to the provisioning rights described in Section 2.1(a): (a) Customer may not appoint downstream provisioning agents or otherwise transfer, sublicense or delegate its rights or obligations hereunder without Tychobra’s prior written consent; (b) Customer shall comply with all applicable laws in its provisioning and other activities hereunder; (c) Customer may not make any representations or warranties regarding the functionality or performance of Polished other than in accordance with this Agreement; and (d) Customer shall ensure that each customer to which it makes available Polished has entered into a binding and enforceable written agreement governing its use of Polished that is at least as protective of Tychobra and Polished as those set forth in this Agreement. Customer shall, and shall ensure that its Users shall, use Polished in compliance with applicable law and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to Polished, or any part thereof, or use them for the benefit of any third party, or make Polished available to any person or entity other than its Users; (ii) send or store infringing, unlawful or tortious material, or send or store material in violation of third-party privacy or confidentiality rights; (iii) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, Polished or the data contained therein; (v) directly or indirectly modify, copy or create derivative works based on Polished, or any portion thereof; (vi) access Polished or the Documentation for the purpose of building a competitive product or service or copying its features or user interface; (vii) monitor the availability, performance or functionality of Polished or use Polished for purposes of product evaluation, benchmarking or other comparative analysis without Tychobra’s prior written consent; (viii) permit access to Polished by a competitor of Tychobra; (ix) directly or indirectly delete, alter, obscure, add to or fail to reproduce in and on Polished the name of Tychobra and any copyright or other notices appearing in or on Polished or which may be required by Tychobra at any time; (x) use Polished in any way that may subject Polished to any obligations under any open source software license, or (xi) use any features or functionality that are not expressly made available as part of Polished, even if other features are accessible or available to Customer.
2.3 Customer Responsibilities. Customer shall be responsible for protecting the privacy and legal rights of the End Users of the Customer Application. Customer shall provide legally adequate privacy notices and data protection for its End Users. If End Users provide Customer with user names, passwords, or other login information or personal information, Customer shall provide notice to such End Users that the information will be made available to Tychobra. If Customer becomes aware of any violation of the terms of Section
2.2 by its User(s), Customer shall immediately terminate such User’s account access.
2.4 Review of Customer Applications. Tychobra reserves the right to review Customer Applications that Customer has made or intends to make commercially available upon written request from Tychobra to Customer, and Customer will provide Tychobra with reasonable access to the Customer Application for such purposes within a reasonable time following such written request.
2.5 Personal Data Processing. To the extent that Tychobra processes any Personal Data contained in Customer Data, on Customer’s behalf, in the provision of the Service, may be updated by Tychobra if required by applicable law, which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
3. Service Levels; Support. Tychobra shall use commercially reasonable efforts to provide support for Polished to Customer’s Development Users during the Term, and provide Customer with continued availability of Polished. For both “Trial Period” and “Paid Subscription” services, Tychobra shall provide support via both email and its online forums, and any other mechanism made available by Tychobra during the term. Tychobra shall have no obligation to provide support to Customer’s End Users.
4. Confidentiality. As used herein, “Confidential Information” means, in the case of information disclosed by Tychobra to Customer, Polished, Documentation and any information disclosed in connection with provision of assistance regarding Customer’s use of Polished, and in the case of information disclosed by Customer to Tychobra, the Customer Data. The party receiving Confidential Information (the “Receiving Party”) shall not disclose or use any Confidential Information of the party disclosing Confidential Information (the “Disclosing Party”) for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Tychobra may disclose Customer Data to third parties with which it contracts in order to provide Polished to Customer and otherwise perform its obligations under this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance. The confidentiality obligations set forth in this Section 4 do not apply to information that (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (iv) is independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party.
5. Ownership. Except for the rights expressly granted under this Agreement, as between Tychobra and Customer, all right, title and interest in and to the Customer Data is owned by Customer. Except for the rights expressly granted under this Agreement, Tychobra retains all right, title, and interest in and to Polished and all other products, works, and other intellectual property created, used, or provided by Tychobra for the purposes of this Agreement, and all modifications, improvements and derivative works of the same. Subject to the foregoing, Tychobra acquires no right, title or interest from Customer or its licensors under this Agreement in or to the Customer Application(s) or any program code created by Customer or by a third party for Customer. Tychobra shall have the right to host, copy, transmit, display, process and access the Customer Data solely as necessary for Tychobra to provide Polished in accordance with this Agreement. Tychobra shall have the right to use any data generated in connection with Polished (for example and without limitation, types of web applications utilized), provided, however, in the event Tychobra provides such data to third parties, it shall be anonymized and presented in the aggregate so that it cannot be linked specifically to Customer or its User. The foregoing shall not limit in any way Tychobra’s confidentiality obligations pursuant to Section 4 above. Customer shall, and hereby does, grant Tychobra a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into Polished, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of Polished (collectively “Feedback”). Tychobra shall have no obligation to incorporate any Feedback into Polished. Customer shall have no obligation to provide any Feedback.
6. Fees and Taxes.
6.1 Polished Provided Free of Charge (“Trial Period”). Polished is provided free of charge to Customer up to certain limits specified by Tychobra at polished.tech/pricing (for example and without limitation, a predetermined range of time, usage and features offered. Any usage of Polished in excess of the limits specified by Tychobra (as measured by Tychobra) is subject to fees as set forth at polished.tech/pricing and Section 6.2 below. Tychobra reserves the right to change its pricing policies for Polished at any time in its sole discretion, including by discontinuing the availability of Polished. Tychobra will provide Customer with reasonable notice of any such changes.
6.2 Polished Provided for a Fee (“Paid Subscription”). After Trial Period ends, Customer shall either cease using Polished or enter into an Order Form for purchase of subscriptions to Polished. Such subscriptions shall renew automatically. Fees for use of Polished (“Fees”) will be invoiced in accordance with any invoicing schedule specified in the applicable Order Form(s). Customer shall pay all invoices within thirty (30) days of date of invoice. Customer agrees that Polished purchased hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Tychobra regarding future functionality or features. All subscriptions purchased hereunder are non-cancellable and Fees paid and payable to Tychobra hereunder are nonrefundable. If Customer fails to pay any amounts due under this Agreement by the due date, Tychobra will have the right to charge interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law until Customer pays all amounts due; provided that Tychobra will not exercise its right to charge interest if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the issue. Unless otherwise stated, Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Tychobra’s net income or property), even if such amounts are not listed in the applicable invoice.
7. Limited Warranty; Disclaimer. Each party represents and warrants that it has the legal power to enter into this Agreement. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, THE DEVELOPER EDITION SERVICE IS PROVIDED “AS IS,” AND TYCHOBRA AND ITS SUPPLIERS HEREBY DISCLAIM ALL (AND HAVE NOT AUTHORIZED ANYONE TO MAKE ANY) WARRANTIES, REPRESENTATIONS, PROMISES, COVENANTS OR UNDERTAKINGS RELATING TO THE DEVELOPER EDITION SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER TYCHOBRA NOR ITS SUPPLIERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF POLISHED OR THAT POLISHED WILL BE ERROR-FREE OR AVAILABLE AT ANY GIVEN TIME.
8. Limitation of Liability.
8.1 NEITHER TYCHOBRA NOR TYCHOBRA’S SUPPLIERS SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, INCLUDING CUSTOMER DATA (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (C) FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.2 IN NO EVENT WILL TYCHOBRA’S OR ITS SUPPLIERS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID TO TYCHOBRA BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM.
9. Indemnification. Customer shall defend Tychobra from any and all claims, demands, suits or proceedings (“Claims”) brought against Tychobra by a third party (including but not limited to Customer’s Users) alleging the Customer Data, the Customer Application, or other materials developed by Customer using Polished (a) infringe or misappropriate a third party’s rights, (to the extent such infringement or misappropriation does not arise from Polished), (b) violate applicable law, or (c) have otherwise harmed a third party. Customer will indemnify Tychobra for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer in connection with any such Claims. The indemnification obligations set forth in this Section 9 are Customer’s sole and exclusive obligations, and Tychobra’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind. Tychobra must give Customer: (a) prompt written notice of the Claim, (b) all cooperation and assistance reasonably requested by Customer in the defense of the Claim, at Customer’s sole expense, and (c) sole control over the defense and settlement of the Claim, provided that Tychobra may participate in the defense of the Claim at its sole expense, and Customer may not, without the prior written consent of Tychobra, enter into a settlement to the extent such settlement restricts the business or operations of Tychobra.
10. No Endorsement; Customer Mention.
10.1 No Endorsement. NO ENDORSEMENT OF OR PARTICIPATION BY ANY THIRD PARTY SHOULD BE INFERRED DUE TO ANY REFERENCE TO THAT THIRD PARTY OR INCLUSION OF DATA RELATING TO THAT THIRD PARTY IN CONNECTION WITH POLISHED. Polished may allow Customer’s Users to interface with a variety of third party software and services obtained separately by Customer or its End Users (“Third Party Services”). Tychobra is not responsible for the operation or functionality of such Third Party Services or for the operation or functionality of the Customer Application. Any exchange of Customer Data or other information between Customer’s End Users and any Third Party Services are solely between Customer, its End Users, and the applicable third-party provider. While Tychobra may, in its sole discretion, configure Polished to interoperate with various Third Party Services, (i) Tychobra cannot and does not guarantee that Polished shall interoperate (or continue to interoperate) with any particular Third Party Service or with the Customer Application, and (ii) Tychobra’s obligations described in this Agreement shall not extend to any Third Party Services or to the Customer Application or to Customer’s Users.
10.2 Customer Mention & Communications. Notwithstanding any other term to the contrary, Tychobra may publicly disclose that Customer is a customer of Polished and may use Customer’s name and logo to identify Customer as an Tychobra customer, including on Tychobra’s public website. Any use shall be subject to Tychobra complying with any written guidelines that Customer may deliver to Tychobra regarding the use of its name and logo. By registering for and using Polished under this Agreement, Customer thereby consents to receiving information from Tychobra about Tychobra and its products and services, via the contact information that Customer provides to Tychobra. Customer may opt-out of any such communications at any time, by providing Tychobra with notification of your intent to opt-out in accordance with the instructions contained in such communications.
11. Term; Termination.
11.1 Termination. If Tychobra determines, in its sole discretion, that Customer is using Polished in a manner that violates this Agreement or creates an excessive burden or potential adverse impact on Tychobra’s systems, or the account is fifteen (15) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Tychobra may, without liability to Tychobra, immediately suspend Customer’s access to Polished until such breach is cured. Either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not cure such breach within fifteen (15) days of such notice. In addition, Tychobra may terminate this Agreement with respect to Polished provided free of charge for its convenience. Upon termination, the rights and licenses granted to Customer hereunder shall terminate immediately. In the event of any termination or expiration of this Agreement, Customer shall have no right to continue to resell Polished, except that Agreement shall continue in full force and effect solely to the extent necessary for the parties to support Continuing Users for the remainder of their then-current subscription terms for Polished, not to exceed one year from the date of termination or expiration of this Agreement, where a “Continuing User” means an end customer in the middle of an unexpired subscription term for Polished at the time of termination of this Agreement. The sections titled “Definitions,” “Restrictions”, “Customer Responsibilities,” “Confidentiality,” “Ownership,” “Fees and Taxes,” “Limited Warranty; Disclaimer,” “Limitation of Liability,” “Indemnification,” “No Endorsement,” “Term; Termination,” and “General” shall survive any termination or expiration of this Agreement.
11.2 Changes to this Agreement. Tychobra may make changes to this Agreement from time to time upon fifteen (15) days notice. At the conclusion of such fifteen (15) days notice period, such changes will take effect. Customer may reject the changes by terminating Customer’s account and this Agreement upon written notice provided during such fifteen (15) days notice period. Any use of Polished after the date on which the changes take effect shall be deemed acceptance of the updated terms of this Agreement.
12.1 Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer without Tychobra’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect.
12.2 Controlling Law, Attorneys’ Fees and Severability. 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 Georgia, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. With respect to all disputes arising out of or related to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Atlanta, Georgia. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
12.3 Notices. All notices hereunder shall be in writing via certified mail, return receipt requested or by confirmed fax, and shall be deemed to have been duly given upon (i) personal delivery, (ii) five (5) days after sending, if sent by domestic mail; (iii) seven (7) days after sending, if sent by international mail; (iv) two (2) days after deposit with a recognized courier with next-day delivery instructions; (v) upon confirmation of transmission, if sent by confirmed fax, or (vi) with respect to notices to Customer, one business day after sending to Customer’s email address on record with Tychobra. Notices to Tychobra will be addressed to Legal Department, Tychobra, Inc., 1992 Cobblestone Circle Northeast, Brookhaven, GA 30319.
12.4 Force Majeure. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented or restricted by reasons beyond the reasonable control of a party or its subcontractors, the party so affected shall be excused from such performance to the extent of such prevention or restriction. Examples include without limitation, (a) changes or clarifications in applicable law, (b) judgments, subpoenas, court orders or the like, (c) electrical, bandwidth, networking, transmission or Internet-related shortages or failures, (d) computer viruses or computer-related attacks, (e) natural disasters or (f) acts of terrorism.
12.5 Equitable Relief. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
12.6 Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.7 Compliance with Law. Customer will not and will not allow any third-party to remove or export from the U.S. or allow the export or re-export of any part of Polished or any direct product thereof: (i) into or to a national or resident of any U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria, and Crimea); (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any U.S. or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
12.8 Government End User. For purposes of this Agreement and to the extent applicable, “commercial computer software” is defined at FAR 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government End User Section 2(f) is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
12.9 Entire Agreement. This Agreement together with the Orders hereunder constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all prior or contemporaneous written or oral agreements existing between the parties hereto and related to the subject matter hereof are expressly canceled. There are no third party beneficiaries to this Agreement. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties hereto. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation \shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.