Service Terms And Conditions

THESE SERVICE TERMS AND CONDITIONS (“AGREEMENT”) GOVERN ACCESS TO AND USE OF THE SERVICE (AS DEFINED BELOW) PROVIDED BY PROCYON, INC. (“PROVIDER”) BY THE CUSTOMER IDENTIFIED IN THE ORDER FORM (“SUBSCRIBER”). CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. PROVIDER AND SUBSCRIBER ARE SOMETIMES REFERRED TO IN THIS AGREEMENT COLLECTIVELY AS THE “PARTIES” AND INDIVIDUALLY AS A “PARTY.” 

BY EXECUTING AN ORDER FORM OR OTHERWISE SUBSCRIBING TO THE SERVICE, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT AND THE PROVIDER’S PRIVACY POLICY (AVAILABLE AT https://procyon.ai/privacy-policy), WHICH IS INCORPORATED HEREIN BY REFERENCE. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS SET FORTH HEREIN, IN WHICH CASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE. THIS AGREEMENT IS MADE AND ENTERED INTO AS OF THE DATE THAT SUBSCRIBER EXECUTES AN ORDER FORM WITH PROVIDER OR OTHERWISE SUBSCRIBES TO THE SERVICE (“EFFECTIVE DATE”).  

1.      DEFINITIONS

   1.1   “Authorized Users” means Subscriber’s employees, consultants, contractors, and/or agents who are authorized by Subscriber to access and use the Service under the rights granted to Subscriber pursuant to this Agreement. 

   1.2   “Confidential Information” means any proprietary or non-public information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) in written, graphic, machine readable, oral, or other tangible or non-tangible form, including any information that should reasonably be considered proprietary or confidential given its nature or the context of its disclosure. 

   1.3   “Documentation” means Provider’s user documentation relating to the Service that are provided or otherwise made available to Subscriber by Provider (e.g., user manuals, technical documentation, on-line help files, etc.).

   1.4   “Order Form” means the ordering document executed by the Parties which specifies the Service to be provided under this Agreement. Each Order Form is governed by, and subject to, the terms of this Agreement. Once executed by both Parties, each Order Form will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Order Forms.  

   1.5   “Service” means Provider’s proprietary, software-as-a-service platform for managing the security of, and access to, Subscriber’s cloud resources and environments. 

   1.6   “Subscriber Data” means any data, content or information that Subscriber (including its Authorized Users) submits, uploads, or transmits to the Service, including any “metadata” relating to Subscriber’s cloud resources and environments.

   1.7   “Subscription Term” means the period of time specified in an applicable Order Form during which Subscriber is permitted to access and use the Service. 

   1.8   “Taxes” has the meaning set forth in Section 3.2.  

   1.9   “Provider Data” means any performance, analytical, or usage data or information relating to Subscriber’s (including its Authorized Users’) access to or use of the Service that is generated or otherwise collected by the Service.

2.      USE OF THE SERVICE

   2.1   Account; Authorized Users. To access the Service, Subscriber and its Authorized Users will be required to register for an account. When registering for an account, Subscriber and its Authorized Users will be required to provide Provider with certain registration information (including, the Provider’s full corporate name, email address, account password, and other contact information). Subscriber acknowledges and agrees that the information provided to Provider is accurate, complete, and not misleading, and that Subscriber will keep it accurate and up to date at all times. Each account created by an Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity.  Subscriber is solely responsible for maintaining the confidentiality of its account and password and those of its Authorized Users, and Subscriber accepts responsibility for all activities that occur under its and its Authorized Users’ accounts. Subscriber will immediately notify Provider upon becoming aware, or having a reasonable basis to believe, that its or its Authorized Users’ accounts are no longer secure. Subscriber will at all times be liable and responsible for the acts or omissions of its Authorized Users as if such act or omission was that of Subscriber. Provider reserves the right to immediately suspend any or all Authorized Users’ access to the Service if Provider reasonably believes, in its sole discretion, that an Authorized User has used Service in an unauthorized manner.

   2.2   Use of the Services. Subject to the terms and conditions of this Agreement and the Order Form, Provider grants to Subscriber a limited, worldwide, non-exclusive, non-sublicensable, non-transferable (except as permitted in Section 10.2) right during the term of this Agreement to use the Service solely in connection with Subscriber’s internal business operations.

   2.3   Use of the Documentation. Subject to the terms and conditions of this Agreement and the Order Form, Provider grants to Subscriber a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service in accordance with this Agreement.

   2.4   Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, sublicense, or otherwise permit third parties to use the Service or Documentation; (b) use the Service to provide services to third parties (e.g., as a service bureau); (c) use the Service for any benchmarking activity or in connection with the development of any competitive product; (d) circumvent or disable any security or other technological features or measures of the Service; (e) reverse engineer, decompile, disassemble or seek to access the source code of the Service; (f) modify or create derivative works of the Service or copy any element of the Service; nor (g) transmit or upload any viruses, Trojan Horses, backdoors, malware, or any other forms of harmful or malicious code to the Service.

   2.5   Compliance with Laws. Subscriber will use the Service and Documentation in compliance with all applicable laws and regulations.

   2.6   Protection against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Service and Documentation and immediately notify Provider in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by Provider to prevent or terminate unauthorized use of the Service or Documentation.

   2.7   Reservation of Rights. Subscriber will not have any rights to the Service or Documentation except as expressly granted in this Agreement. Provider reserves to itself all rights to the Service and Documentation not expressly granted to Subscriber in accordance with this Agreement.

   2.8   Feedback. If Subscriber provides any feedback to Provider concerning the functionality and performance of the Service (including identifying potential errors and improvements), Subscriber hereby assigns to Provider all right, title, and interest in and to the feedback, and Provider is free to use the feedback without payment or restriction.

   2.9   Subscriber Data. Subscriber grants Provider a limited, worldwide, non-exclusive license, during the term of this Agreement, to use, copy, store, transmit, modify and create derivative works of Subscriber Data but only to the extent necessary to provide the Service. Subscriber is solely responsible for Subscriber Data as provided, transmitted, or used by Subscriber and its Authorized Users in connection with the Service, and Provider is under no obligation to backup or retain copies of Subscriber Data, which is solely Subscriber’s responsibility. 

   2.10     Usage Data. Provider may collect, generate, and derive Usage Data for Provider’s business purposes, including to: (a) track usage for billing purposes; (b) monitor the performance and stability of the Service; (c) prevent or address technical issues with the Service; (d) improve the Service and develop derivative and new products and services; and (e) generate analytics and benchmarking reports. Subscriber will not interfere with the collection of Usage Data. As between the Parties, Provider owns all right, title, and interest, including all intellectual property rights in and to, the Usage Data, the know-how and analytical results generated in the processing of Usage Data, and any and all new products, services, and developments, modifications, customizations, or improvements to any Service made based on the Usage Data. Provider will not disclose Usage Data externally, including in benchmarks or reports, unless such Usage Data has been (a) de-identified so that it does not individually identify Subscriber, its Authorized Users, or any other person, and (b) aggregated with usage data from other Provider customers.

   2.11     No Support. Subscriber hereby acknowledges and agrees that, unless otherwise expressly agreed to by the Parties in writing, Provider is under no obligation to support or maintain the Service or to provide any updates, upgrades, or other technical support to Subscriber or any of its Authorized Users with respect to the Service.

3.      FEES AND PAYMENT

   3.1   Fees and Payment Terms. Subscriber will pay Provider the fees and any other amounts owing under this Agreement (plus any applicable sales, use, excise, or other taxes) as specified in the Order Form. Unless otherwise specified in the Order Form, Subscriber will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Provider to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Except as expressly set forth herein, all fees and any other amounts owing to Provider under this Agreement are non-cancellable and non-refundable. 

   3.2   Taxes. Other than net income taxes imposed on Provider, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Subscriber will pay any additional Taxes as are necessary to ensure that the net amounts received by Provider after all such Taxes are paid are equal to the amounts that Provider would have been entitled to in accordance with this Agreement as if the Taxes did not exist.

4.      TERM AND TERMINATION

   4.1   Term; Subscription Term. This Agreement will commence upon the Effective Date and will continue in full force and effect until the expiration or earlier termination of the Subscription Term specified in the Order Form, unless this Agreement is earlier terminated in accordance with the terms set forth herein. Unless otherwise set forth in the applicable Order Form, the Subscription Term will automatically renew for additional successive terms equal in length to the Subscription Term, unless at least 60 days before the end of the then-current Subscription Term either Party provides written notice to the other Party that it does not want to renew.

   4.2   Termination for Material Breach. Either Party may terminate this Agreement or an applicable Order Form if the other Party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 4.2 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Provider may, without limitation to any of its other rights or remedies, suspend performance of the Service until it receives all amounts due. In the event of any termination of this Agreement or an Order Form by Subscriber in accordance with this Section 4.2, Provider will provide a pro-rata refund of any prepaid fees for the terminated portion of the Subscription Term.  

   4.3   Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Subscriber will pay to Provider any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will provide Provider with a written certification signed by an authorized Subscriber representative certifying that all use of the Services and Documentation by Subscriber has been discontinued.

   4.4   Survival. The following Sections will survive any termination of this Agreement and will remain in full force and effect after any such termination: Section 1, Section 2.7, Section 2.8, Section 2.10, Section 3, Section 4.3, Section 4.4, Section 5, Section 6, Section 7, Section 8, Section 9, and Section 10.

5.      WARRANTIES AND DISCLAIMER

   5.1   Warranties. Each Party represents and warrants to the other Party that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement. Subscriber represents and warrants to Provider that: (a) it will comply with all applicable privacy and data protection laws and regulations applicable to the Service; and (b) it has provided all notices to, and obtained all consents, authorizations, permissions from, third parties that are required to grant Provider the rights, titles, and interests granted in this Agreement.

   5.2   Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, PROVIDER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. PROVIDER DOES NOT WARRANT THAT THE SERVICE is ERROR-FREE OR THAT OPERATION OF THE SERVICE WILL BE SECURE OR UNINTERRUPTED. PROVIDER DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE WILL ALWAYS BE AVAILABLE. PROVIDER EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE SERVICE. 

6.      INTELLECTUAL PROPERTY INFRINGEMENT

   6.1   Defense of Infringement Claims. Provider will, at its expense, either defend Subscriber from, or settle, any claim, proceeding, or suit brought by a third party (“Claim”) against Subscriber alleging that Subscriber’s use of the Service infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: (a) Subscriber gives Provider prompt written notice of the Claim; (b) Subscriber grants Provider full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Provider may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Service). Subscriber will not defend or settle any Claim without Provider’s prior written consent. Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Provider will have sole control over the defense and settlement of the Claim.

   6.2   Indemnification of Infringement Claims. Provider will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 6.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 6.1 (other than attorneys’ fees and costs incurred without Provider’s consent after Provider has accepted defense of the Claim); and (c) all amounts that Provider agrees to pay to any third party to settle any Claim under Section 6.1.

   6.3   Exclusions from Obligations. Provider will have no obligation under this Section 6 for any infringement or misappropriation to the extent that it arises out of or is based upon: (a) use of the Service in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any designs, requirements, or specifications required by or provided by Subscriber relating to the Service, if the alleged infringement or misappropriation would not have arisen but for Provider’s compliance with such designs, requirements, or specifications; (c) use of the Service by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Service in accordance with Provider’s written instructions or the Documentation, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Service not made or authorized in writing by Provider where such infringement or misappropriation would not have occurred absent such modification.

   6.4   Limited Remedy. This Section 6 states Provider’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Service.

7.      SUBSCRIBER INDEMNIFICATION

   7.1   Defense. Subscriber will defend Provider from any actual or threatened Claim arising out of or based upon Subscriber’s use of the Service or Subscriber's breach of any of the provisions of this Agreement if: (a) Provider gives Subscriber prompt written notice of the Claim; (b) Provider grants Subscriber full and complete control over the defense and settlement of the Claim; (c) Provider provides assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request; and (d) Provider complies with any settlement or court order made in connection with the Claim. Provider will not defend or settle any Claim without Subscriber’s prior written consent. Provider will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.

   7.2   Indemnification. Subscriber will indemnify Provider from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Provider in any Claim under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Provider in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 7.1.

8.      LIMITATIONS OF LIABILITY

   8.1   Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, PROVIDER WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF PROVIDER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

   8.2   Cap on Liability. UNDER NO CIRCUMSTANCES WILL PROVIDER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO PROVIDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

   8.3   Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY PROVIDER TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

9.      CONFIDENTIALITY

   9.1   Obligation. The Receiving Party will: (a) not disclose the Confidential Information of the Disclosing Party to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Agreement; and (b) will not use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. A Receiving Party is permitted to disclose Confidential Information of the Disclosing Party to the extent required by law so long as it gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assistance in obtaining a court order protecting such information from public disclosure.

   9.2   Exclusions. Confidential Information does not include any information that: (a) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Disclosing Party; (c) is already in the possession of the Receiving Party at the time of disclosure; (d) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

10.    GENERAL

   10.1     Relationship. Provider will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.

   10.2     Assignability. Neither Party may assign its right, duties, and obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld, conditioned, or delayed, except that a Party may assign this Agreement without the other Party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning Party’s obligations under this Agreement.

   10.3     Subcontractors. Provider may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Provider remains responsible for all of its obligations under this Agreement.

   10.4     Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth in the Order Form and with the appropriate postage affixed. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 10.6. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier. 

   10.5     Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

   10.6     Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California in connection with any action arising out of or in connection with this Agreement.

   10.7     Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

   10.8     Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Service will immediately terminate.

   10.9     Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.

   10.10   Entire Agreement. This Agreement, including any Order Forms and Provider’s privacy policy (available at https://procyon.ai/privacy-policy), is the final and complete expression of the agreement between the Parties regarding Subscriber’s use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed. No employee, agent, or other representative of Provider has any authority to bind Provider with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed or otherwise modified only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Provider will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Provider specifically agrees to such provision in writing and signed by an authorized agent of Provider.

   10.11   Order of Precedence. In the event of any conflict or inconsistency between this Agreement and any other document that references this Agreement, the order of precedence will be: (1) the Order Form; (2) this Agreement; and (3) the Documentation.