Confide Enterprise Subscription Agreement

Effective as of July 2021

SCHEDULE A
TERMS AND CONDITIONS

This Agreement (the “Agreement”) incorporates by reference Confide’s Privacy Policy, Acceptable Use Policy and User Terms and governs Customer’s use of the Services. Customer acknowledges and agrees that by accessing and/or using the Services, Customer is agreeing to and is bound by this Agreement. To the extent of any conflict or inconsistency between the terms and conditions set forth below, and Order, and any other terms referenced herein, the order of governance shall be: (1) the Order; (2) these terms and conditions, (3) the Privacy Policy; (4) The User Terms(including the Acceptable Use Policy).

1. Definitions. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
   1. “Affiliate” means, with respect to any entity, any other entity who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
   2. “Applicable Law” means any applicable federal, state, county, and local law, ordinance, regulation, rule, code, and order.
   3. “Authorized User” means (i) an individual who has been authorized by Customer to access and use the Services.
   4. “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement and which is listed on an Order.
   5. “Customer Data” means all data, information, content and other materials stored or transmitted by Customer and Authorized Users through the Services in their user accounts.
   6. “Documentation” means the user guides and user manuals for the Subscription Services that Confide provides to Subscriber.
   7. “Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.
   8. “Order” means an ordering document or online order for Subscriptionsthat has been entered into by Confide and Customer. Each Order entered into between the parties is incorporated into this Agreement by reference.
   9. “Services” means the encrypted and ephemeral messenger application and other related services provided by Confide which offers Authorized Users the ability to send and receive encrypted, ephemeral messages (“Messages”) through (a) a variety of online application distributors, such as Apple and Google Play, that distribute the application (an “App”) for use on internet-enabled devices, including smart phones, tablets and computers, and (b) the Website.
   10. “Subscription means an individual subscription to the Services purchased by Customer.
   11. “Term” means the Initial Term and any Renewal Terms.
   12. “Update” means any and all new releases, new versions, patches and other updates for the Services that Confide makes generally available without additional charge to its other subscribers of the Services.
   13. “Website” means any Internet website through which Confide provides the Services under this Agreement.
2. Services Confide will provide Customer and Authorized Users with access to the Services and any Updates. Customer and Authorized Users will be responsible for obtaining internet connections and other third party software andservices necessary for it to access the Services. Confide will undertake commercially reasonable efforts to make the Services available to Customer andits Authorized Users at all times in accordance with the terms and conditions set forth in this Agreement. Notwithstanding the foregoing, Confide reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Confide pursuant to Section 3.
3. Fees and Payment Terms.
   1. Customer will pay Confide fees for Subscriptions purchased as stated in an Order (the “Fees”) in accordance with the payment schedule set forth thereon. Subscriptions may be added during a subscription term at the samepricing as the underlying subscription pricing, prorated for the portion of thatsubscription term remaining at the time the subscriptions are added. Any added subscriptions will terminate on the same date as the underlying subscriptions.
   2. All payments of Fees are non-refundable and must be received by Confide within the time specified in an Order. All amounts stated in the Order or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars. Overdue payments will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowable interest under applicable law, from due date until paid. Customer will pay any sales, use or other tax related to the license and services provided hereunder, exclusive of income taxes and payroll taxes relating to Confide’s employees.
4. Term, Termination and Survival.
   1. Term. Subscriptions are purchased for the term stated in the applicable Order (the “Initial Term”). Unless otherwise stated in an Order (a) all subscriptions automatically renew for additional periods equal to one (1) year (each a “Renewal Term”). Either party can give the other notice of non-renewal (confirming email shall suffice) at least sixty (60) days before the end of a subscription term to stop an Order from automatically renewing.
   2. Termination.In the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement by giving thirty (30) days prior written notice to the breaching Party; provided, however, that thisAgreement will not terminate if the breaching Party has cured the breach before the expiration of such thirty (30) day period. Confide may immediately terminate any Authorized User’s accounts if in Confide’s sole discretion, it determines that Customer or an Authorized User of Customer is using the Services in violation of any Applicable Law or the rights of any thirdparty.
   3. Effect of Termination. In the event of any termination or expiration of this Agreement,
      1. all rights and licenses granted hereunder to Customer (as well as all rights granted to any Authorized Users of Customer) will immediately cease, including but not limited to all use of the Services and the Documentation; and
      2. each Party, will either, at its election, return to the other Party ordestroy, all documents, computer files and other materials containing any Confidential Information of such other Party that are in the first Party’s possession or control.
   4. Survival. The following provisions will survive any termination or expiration of this Agreement: Section 4.2 (“Effect of Termination”), Section 6 (“Confidentiality”), Section 7.3 (“Disclaimer”) Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 10 (“Miscellaneous Provisions”) and this Section 4.3 (“Survival”).
5. Access to Services.
   1. Access Grant. Confide grants Customer during the Term a non-exclusive, non-transferable, non-sublicensable (except as expressly set forth below) right to access and use the Services for Customer’s business purposes. Customer may grant access to the Services under the foregoing grant only tousers for the sole purpose of accessing the Services for the internal business purposes of Customer. Customer will be responsible to Confide for compliance with the restrictions on use and other terms and conditions of this Agreement by any Authorized Users.
   2. Registration and Use of Services. Customer shall be responsible for setting up Authorized Users to access the Service. Authorized Users will receive an invite to set up their Subscriptions which will include, setting up a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating an Authorized User’s identity during log-in (“Unique Identifiers”). Authorized Users are required to agree to Confide’s User Terms which will govern their use of the Service. User terms are located at https://getconfide.com/terms and must be agreed to by an Authorized User in order to activate a Subscription. Each Subscription can be used by only one Authorized User and should not be shared with others, but may be reassigned to new Authorized Users replacing former Authorized Users. Authorized Users are solely responsible for the confidentiality and use of their Sign-In Name, Password, and Unique Identifiers. Customer is responsible for any use, misuse, or communications entered through the Service using one or more Authorized Users’ accounts. Customer shall inform us promptly of any need to deactivate a Password or Sign-In Name or change any Unique Identifier. Confide will not be liable for any loss or damage caused by any unauthorized use of your Authorized Users’ accounts. If Confide, at its discretion, believes there has been unauthorized use of one of Customer’s Authorized User accounts, Confide may immediately suspend such account and will notify Customer of such suspension.
   3. Restrictions on Use. Customer will not (and will not permit any third party to): (i) share Customer’s or its Authorized User’s login credentials; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying ideas, algorithms, file formats, or interface protocols of the Services or of any files contained in or generated by the Services; (iii) copy, modify, adapt or translate the Services or otherwise make any use, resell, distribute or sublicense the Services other than in connection with this Agreement; (iv) make the Services available on a “service bureau” basis or allow any parties other than Customer’s AuthorizedUsers to use the Services subject to this Agreement; (v) remove or modify any proprietary marking or restrictive legends placed on the Services; (vi) use the Services in violation of any Applicable Law; or (vii) use the Services in violation of Confide’s Community Guidelines available at http://www.getconfide.com/terms.
   4. Title. As between Confide and Customer, Confide retains all title to and ownership of the Services and the Documentation, including all copyrights and other intellectual property rights relating thereto. Customer will have no rights with respect to the Services or the Documentation other than those expressly granted under this Agreement.
   5. Customer Data. As between Confide and Customer, Customer owns and shall retain all right, title, and interest, including, without limitation, all intellectual property rights, in and to the Customer Data. Customer shall have the sole responsibility for the accuracy, quality, and legality of the Customer Data. Customer hereby grants to Confide an irrevocable, worldwide, royalty free, non-exclusive, transferable, sublicensable license to use the Customer Data (i) in an anonymized, aggregated manner and (ii) in non-anonymized, non-aggregated manner solely to provide and improve the Services.
   6. Protection of Customer Data Confide uses industry-standard end-to-end encryption to keep your messages safe and to ensure they can only be read by the intended recipients. All user to user communication goes through Transport Layer Security (TLS), preventing any possible man-in-the-middle attack and providing yet another layer of security, privacy and data integrity.
      
      Confide shall handle all Customer Data in accordance with our Privacy Policy located at https://getconfide.com/privacy.
      
      Confide will maintain reasonable administrative, physical, and technical safeguards to prevent unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Customer will ensure the transfer and processing of Customer Data to Confide under the Contract is lawful and shall bear sole responsibility for adequate security, protection andbackup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control.
   7. Third Party Applications. If Customer installs or enables a Third Party Application for use with the Services, Customer grants Confide permission to access Customer Data stored on that Third Party Application as required for the interoperation of that Third Party Application with the Services. In no event will Confide be responsible for any Third Party Applications, or for any failure of a Third Party Application to properly interoperate with the Services.If Confide receives information that a Third Party Application may violate anyApplicable Laws or third-party rights, Customer will, promptly upon receiving notice of the foregoing from Confide, disable any connection between such Third Party Application and the Services to resolve the potential violation (and if Customer fails to promptly disable such connection, Confide shall have the right to do so).
   8. Accessing and Downloading the Services from iTunes. The following terms apply to any App on Apple iTunes (an “Apple App”). These terms are in addition to all other terms contained in these Terms and Conditions:
      1. Customer acknowledges and agrees that (i) this Agreement is concluded between Customer and Confide only, and not Apple, and (ii) Confide, not Apple, is solely responsible for the Apple App and content thereof. Customer’s use of the Apple App must comply with the Apple App Store Terms of Service.
      2. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App.
      3. In the event of any failure of the Apple App to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price, if any, for the Apple App to Customer and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App. As between Confide and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to anywarranty will be the sole responsibility of Confide.
      4. Customer acknowledges that, as between Confide and Apple, Apple is not responsible for addressing any claims Customer has or any claims of any third party relating to the Apple App or Customer’s possession and use of the Apple App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
      5. Customer acknowledges that, in the event of any third party claim that the Apple App or Customer’s possession and use of that AppleApp infringes that third party’s intellectual property rights, as between Confide and Apple, Confide, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
      6. Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.
      7. Customer acknowledges and agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as related to Customer’s license of the Apple App, and that, upon Customer’s execution of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relatedto Customer’s license of the Apple App against Customer as a third partybeneficiary thereof.
      8. Without limiting any other terms of this Agreement, Customer must comply with all applicable third party terms of agreement when using the Apple App.
6. Confidentiality.
   1. Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means: (a) with respect to Confide, the Services, any and all source code relating thereto, the Documentation, as well as non-public information or material regarding Confide's legal or business affairs, financing, customers, properties or data, and (b) with respect to Customer, any non-public information or material regarding Customer's legal or business affairs, financing, customers, properties or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (ii) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who did not receive it, directly or indirectly, from the disclosing party.
   2. Use and Disclosure of Confidential Information. The Receiving Party will, with respect to any Confidential Information disclosed by the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of this Agreement; (ii) subject to Section 6.4 below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those of the Receiving Party’s employees who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement, (iii) not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so, (iv) protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care), and (v) prior to providing an employee access to any Confidential Information of the Disclosing Party, inform such employee of the confidential nature of suchConfidential Information and require such employee to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information.
   3. Required Disclosures. If a Party is requested to disclose any of the other Party’s Confidential Information pursuant to any judicial or governmental order, that Party will not disclose the Confidential Information without first giving the other Party written notice of the request and sufficient opportunityto contest the order, to the extent such notice and opportunity to contest may be lawfully given.
7. Representations and Warranties; Disclaimer.
   1. Mutual Representations and Warranties. Each Party represents and warrants that it has the full right, power and authority to enter into this Agreement and to discharge its obligations hereunder.
   2. Representations and Warranties of Confide. Confide represents and warrants that: (i) Confide will comply with all Applicable Laws; (ii) Confide shall use commercially reasonable efforts to ensure that the Services will not contain any Malicious Code; and (iii) the Services will operate substantially incompliance with the Documentation.
   3. Disclaimer. CUSTOMER ACKNOWLEDGES THAT CONFIDE DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AND ANY OTHER DATA OR INFORMATION PROVIDED THROUGH THE SERVICE WILL BE ACCURATE OR COMPLETE.
      
      CONFIDE ALSO ACKNOWLEDGES THAT THE SERVICE MAY CONTAIN BUGS, ERRORS, AND OTHER PROBLEMS THAT COULD CAUSE THE SERVICE TO BE UNAVAILABLE OR TO FAIL TO DELIVER MESSAGES OR OTHERWISE BE UNRELIABLE. CONSEQUENTLY, THE SERVICE AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING THAT THE SERVICE OR THE CONTENT WILL BE ERROR-FREEOR UNINTERUPTED OR THAT THE SERVICE, ITS SERVERS, OR THE CONTENT ARE OR WILL BE SECURE OR FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
      
      TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CONFIDE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM ACOURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
8. Limitation of Liability.
   1. Liability Exclusion. NEITHER PARTY (INCLUDING A PARTY’S AFFILIATES) WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THE SERVICES OR THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
   2. Limitation of Damages. EACH PARTY’S MAXIMUM LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO CONFIDE BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
   3. Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 8.1 AND SECTION 8.2 SHALL NOT APPLY TO DAMAGES ARISING FROM: (I) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER; (II) EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, OR (III) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9. Indemnification.
   1. Indemnification by Confide. Confide will defend, indemnify and hold harmless Customer and its Authorized Users from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and consulting fees) in connection with any third party claim alleging that the use of the Services in accordance with this Agreement infringes or misappropriates intellectual property or proprietary rights of such third party; provided, however, that the foregoing obligations shall be subject to Customer (a) promptly notifying Confide of the claim, (b) providing Confide with reasonable cooperation in the defense of the claim when Customer becomes aware and (c) providing Confide with sole control over the defense and negotiations for a settlement or compromise. Notwithstanding the foregoing, Confide shall have no obligation with respect to a third party claimto the extent the third party claim arises from: (x) use of the Services in combination with modules, apparatus, hardware, software, or services not authorized by Confide or contemplated for use with the Services; (y) use of the Services in a manner that is not in accordance with this Agreement or the Documentation; or (z) the alteration or modification of the Services by a party other than Confide, unless such alterations and modifications were authorized by Confide or contemplated for use with the Services.
   2. Indemnification by Customer. Customer will defend, indemnify and hold harmless Confide and its Affiliates, and each of their officers, directors, managers, shareholders, members and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney’s fees and expert and consulting fees) in connection with any third party claim arising from or relating to (i) any allegation that any data, information or materials provided by Customer hereunder, including, without limitation, the CustomerData, when used in connection with the Services: (a) infringes or misappropriates any intellectual property or proprietary rights of a third party, or (b) violates any Applicable Laws; (ii) Customer’s actual or alleged violation of Applicable Law, or breach of this Agreement; provided, however, that the foregoing obligations shall be subject to Confide (i) promptly notifying Customer of the claim, (ii) providing Customer with reasonable cooperation in the defense of the claim and (iii) providing Customer with solecontrol over the defense and negotiations for a settlement or compromise
10. Miscellaneous Provisions.
    1. Notices. Unless otherwise specified herein, all notices and other communications between the Parties required or permitted by this Agreement or by applicable law, will be deemed properly given, if given by (i) personal service, (ii) registered or certified mail, postage prepaid, return receipt requested, (iii) nationally recognized private courier service or (iv) facsimile, to the respective addresses of the Parties set forth below or such other addresses as the respective Parties may designate by like notice from time to time. Notices so given will be effective upon (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.
    2. Relationship Of The Parties. Each Party is an independent contractor of the other Party. Nothing herein will constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.
    3. Assignment. Neither Party may assign or otherwise transfer any of itsrights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that Confide may, upon prior, written notice to the Customer and without the consent of the Customer, assign or otherwise transfer this Agreement to any of its Affiliates or to an entity with or into which it is merged or consolidated or to which it sells its stock or other equity interests or all or substantially all of its assets. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
    4. Modification. Except for an Order which may only be modified in a writing signed by Customer and Confide, Confide may modify this Agreementor any part hereof from time to time. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Agreement at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in this Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer(or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
    5. Force Majeure. Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to theextent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party
    6. Choice of Law. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
    7. Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in New York for all suits, actions or proceedings directly or indirectly arising out of or relatingto this Agreement, and waive any and all objections to such courts, includingbut not limited to objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the jurisdiction of such courts in any suits, actions or proceedings arising out of or relating to this Agreement.
    8. No Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
    9. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.
    10. Entire Agreement. This Agreement along with any other terms incorporated by reference contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement.