Terms of Service

1. Order Form

Services will be ordered by Customer pursuant to executed order forms (each, an “Order Form”). Each Order Form will include the specific services being ordered (the “Service” or “Services”) and the associated fees and any additional terms as applicable. Each additional Order Form will be numbered sequentially (e.g. Order Form 1, 2, 3, etc.) and upon execution by both parties will be deemed an addendum hereto and will be subject to all of the terms and conditions herein. Any one of Customer’s subsidiaries or affiliates may also order services under this Agreement by entering into an Order Form signed by such subsidiary or affiliate and Company and agreeing to be bound by the terms of this Agreement and such Order Form.

2. Software/Service

2.1. Rights for Use Subject to Customer’s timely payment of all applicable fees, Company hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as expressly permitted hereunder), limited right to access and use the Service subject to the terms and conditions herein. Customer shall not transfer or sub-license the license granted herein to any third party and shall not access or use the Services for or on behalf of any third party. 2.2. Accounts; Security Access to or use of certain portions and features of the Services may require Customer to create an account (“Account”). Customer represents and warrants that (i) all information provided by it is current, accurate, complete, and not misleading, and (ii) it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its Account(s), including the password(s). Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorised use of its accounts, including any unauthorised access or attempted access, in which event Customer acknowledges that Company may change any Customer IDs, passwords and other security measures or temporarily suspend the Services. Customer is responsible for all activities that occur under its Account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the Account(s). 2.3. Restrictions on Use In accessing or using the Service, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Service; (c) apply systems to extract or modify information in the Service using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) input or post through or to the Service any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Service that is regulated by the Privacy Act 1988 (with respect to health information and medical records) or the PCI Data Standards (f) input or transmit through or to the Service any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Service or grant unauthorised access thereto; (g) use or access the Service for purposes of monitoring the availability, performance or functionality of the Service or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Service to compete with Company in any way; or (j) permit any third party to use or access the Service other than your direct employees or contractors who are acting on your behalf. 2.4. Maintenance Customer agrees that Company may install software updates, error corrections, and software upgrades to the Service as Company deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Service for purposes of this Agreement. 2.5. Applicable Laws Customer’s access to and use of the Service is subject to all applicable international, federal (or national), state and local laws and regulations. Customer may not use the Service or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Service is compliant with applicable laws is the responsibility of Customer. 2.6. Suspension of Service Company has the right to immediately suspend the Service (a) in order to prevent damage to or degradation of the Service or unauthorised or non-compliant use, (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, (c) if, following notice from Company, Customer has failed to pay any amounts due and owing, or (d) if Company has reasonable cause to believe that Customer has committed a material breach of this Agreement. In the case of (a), (b), and (c), Company will give Customer prior notice if reasonable and will ensure that the Service is restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.

3. Customer Obligations

3.1. Customer shall:

3.1.1. comply with the reasonable instructions of Company in connection with the Services and if appropriate promptly provide Company with any relevant material or information requested by Company; 3.1.2. be solely responsible for the security and proper use of Customer IDs, passwords and other security measures used in connection with the Services and in accordance with the instructions of Company; 3.1.3. immediately notify Company if it becomes aware of or suspects that there is a security breach in relation to the Services. Upon such notification, Company shall have the right to change Customer IDs, passwords and other security measures or temporarily suspend the Services; 3.1.4. comply with all laws and regulations which apply to the Customer in relation to its activities under this Agreement.

3.2. The Customer shall not:

3.2.1. use the Services to send, receive, upload, download or display any information or material which is or which may be considered to be offensive, abusive, indecent, libelous, defamatory, obscene or menacing, or in breach of confidence, privacy, intellectual property rights or third party rights; 3.2.2. use the Services for sending unsolicited advertising or promotional material (spam); use the Services for the transmission or distribution of anything which may prevent, impair or otherwise adversely affect the operation of the Software or any hardware or telecommunications service used in connection with the provision of the Services; 3.2.3. attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; 3.2.4. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; 3.2.5. access all or any part of the Software or hosting services provided by Company in order to build a product or service which competes with the Software or the Services; 3.2.6. use the Software or any hosting services provided by Company to provide services to third parties;

4. Data Licenses

4.1. Customer Content

4.1.1. As between Company and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Service that is owned by Customer (“Customer Content”) are owned by Customer. Customer shall protect all data, including, without limitation, Customer Content stored on Company’s servers, in accordance with the provisions and principles of applicable data protection laws, and Customer shall comply with the provisions of the (Australian) Privacy Act of 1988 (the “AU Act”). Customer represents and warrants that it shall collect and manage any Customer Content in accordance with the AU Act and that it has, or will obtain prior to using the Services, all consents necessary for Company to process such Customer Content in accordance with this Agreement. Customer shall indemnify and hold Company harmless against all claims and proceedings and all liability, loss, costs, and expenses incurred by Company arising out of or in connection with Customer’s breach of any representations or warranties set forth in this Section 4.1.1. 4.1.2. Customer acknowledges and agrees that in connection with the provision of the Services, Company may store and maintain Customer Content for a period of time consistent with Company’s standard business processes for the Service and that Company may transmit any data outside of the country from which it was originally collected. Following expiration or termination of the Agreement or a Customer account, if applicable, Company may deactivate the applicable Customer account(s) and delete any data therein. Customer grants Company the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement and the applicable Order Form. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Company to perform the Services. Company shall not be responsible for any loss, destruction, alteration or disclosure of Customer Content caused by any third party.

4.2. Aggregated Data

Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may (a) capture data regarding the use of the Service by Customer and its end users, (b) collect metrics and data included in the Customer Content, and (c) aggregate and analyse any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the Customer Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.

5. Third Party Services

Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Customer is prohibited from linking to the Service, framing of all or any portion of the Service, and extracting data from the Service. Company reserves the right to disable any unauthorised links or frames. Company will not be responsible and expressly disclaims any liability for any third-party services that Customer may use or connect to through the Service. If Customer activates any APIs or links to enable data sharing through the Service or directs Company to do so on its behalf, Customer thereby authorises Company to send and receive Customer Content with any such activated third-party service and represents and warrants to Company that Customer has all appropriate right and title to grant such authorisation. Customer will be solely responsible for any third-party fees related to the third-party services and compliance with any applicable third-party service terms.

6. Intellectual Property

6.1. Proprietary RightsCompany’s intellectual property, including without limitation the Service, its trademarks and copyrights and excluding any Customer Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement. 6.2. FeedbackCustomer agrees that advice, feedback, criticism, or comments provided to Company related to the Service are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.

7. Payment and Taxes

7.1. PaymentFees are set forth in the applicable Order Form (“Fees”). Set-up fees, if any, are due upon commencement of the implementation process. Set-up fees, monthly subscription fees, transaction fees, and all other fees owed by Customer to Company will be payable upon invoice. Company will send invoices to the contact(s) provided in an Order Form for each such Customer, and, unless otherwise set forth in the applicable Order Form, the Fees for each such Customer shall be due and payable within 7 days of receipt of the invoice therefor. Undisputed amounts that are past due will be subject to a monthly charge of 4.0% per month or the maximum rate permitted by law, whichever is less, beginning on the eight (8th) day following the date such payment was due. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Company, upon not less than 30 days’ notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time after the first twelve months of the Term, which right will include without limitation the right to charge a Fee for new features or functions of the Service or for features or functions that have previously been offered at no charge. Unless otherwise noted in the Order Form, all Fees are payable in Australian Dollars, and non-refundable. 7.2. TaxesThe Fees are exclusive of any local, state, federal or foreign taxes, levies, or duties of any natures, including, without limitation, (Australian) Goods and Service Tax, value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all applicable Taxes. Company may invoice Taxes to Customer, and Customer shall pay such Taxes, unless Customer provides Company with a valid tax exemption certificate authorised by the appropriate taxing authority.

8. Term and Termination

8.1. TermThis Agreement will be effective as of the stated date in an initial Order Form (“Effective Date”) and remain in effect until (a) all executed Order Forms have expired or been terminated or (b) terminated by either party as permitted by this Agreement. Unless otherwise stated in the Order Form the initial term will be for one year, thereafter, the Order Form will automatically renew for successive periods equal to the initial term, unless cancelled by either party in accordance with this Agreement. 8.2. TerminationEither party may terminate this Agreement by providing 30 days’ written notice once the initial Term in the Order Form has expired. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 14 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property. 8.3. Effects of TerminationUpon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Service, (b) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject to the non-disclosure obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable. Following termination of this Agreement, Company will archive all club data within 4 weeks. Data will be transferred back to the Customer on request. If no request is received to enable such a transfer within 12 weeks of archiving, the data will be permanently deleted. 8.4. Survival Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.

9. Payment Processing and Related Services

9.1. Payment Processing Services Customer has the option to accept payments through the Service (the “Payment Processing Services”), subject to Customer’s eligibility to enroll in the Payment Processing Services. The terms and conditions of this Section apply to Customer only if Customer enrolls in the Payment Processing Services. The Payment Processing Services are provided by a third-party payment processor as a third-party offering (each a “Third-Party Payment Processor”). Customer’s use of the Payment Processing Services will be subject to a separate payment processing agreement solely between Customer and the Third-Party Payment Processor. Customer agrees that Customer and its affiliates will comply with the terms and conditions of any applicable payment processing agreements, privacy policies, and any other related documentation provided by or on behalf of the Third-Party Payment Processor, and any applicable card network rules, policies, laws, and regulations at all times while using such Payment Processing Services. By enrolling in the Payment Processing Services, Customer agrees to the applicable Third-Party Payment Processor’s payment processing agreement, privacy policy, and any other related terms and conditions, including fees charged to the Customer by Third-Party Payment Processors for the Payment Processing Services. Company is not liable for the acts or omissions of any third party, including any Third-Party Payment Processor. 9.2. Fees Fees for the Payment Processing Services are subject to change at the Company’s discretion. The standard fees for the Payment Processing Services are posted at https://www.clubwise.org/customerzone/australia/index.php/payments/ , (the “Posted Fees”). If Customer’s fees for the Payment Processing Services are subject to an alternative arrangement to the Posted Fees, Company will provide Customer with such fee arrangement in writing.

10.Confidential Information

10.1. Confidential Information“Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Service, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company. 10.2. Non-Disclosure Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below. 10.3. Exclusions The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.

11. Dispute Resolution

11.1. 1 In the event of any dispute arising out of or relating to this Agreement, each party agrees not to commence legal proceedings without first attempting in good faith to resolve the dispute amicably and speedily in accordance with the dispute resolution procedure set out below. 11.2. Any such dispute shall be referred in the first instance to a senior manager nominated by each of the parties for resolution. 11.3. If the dispute is not resolved by negotiation between the senior managers nominated by the parties pursuant to clause 11.2 it shall be referred at the written consent of either party to the respective Chief Executives of Company and the Customer. The Chief Executives may each nominate a deputy to deal with the matter on his/her behalf. 11.4. If the dispute is not resolved at this stage within 14 days of being referred to the Chief Executives (or such longer period as the parties may agree), the parties shall meet to consider whether, and on what terms, they wish to refer the matters in dispute to external mediation, arbitration, or assessment by an expert. 11.5. If the parties do not agree on such referrals within 7 days after the end of the period allotted for resolution of the dispute by the Chief Executives, this dispute resolution procedure shall be considered at an end as regards the dispute in question. 11.6. This dispute resolution procedure shall also be considered at an end as regards the dispute in question if the parties agree to refer the matters in dispute to a non-binding arbitration, expert’s assessment or mediation and the resulting findings or recommendations are not acceptable to both parties. 11.7. This dispute resolution procedure shall not prevent a party to the Agreement from taking injunctive action.

12. Disclaimers

COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICE THAT ARISE FROM CUSTOMER CONTENT OR THIRD-PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.

13. Limitation of Liability

IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 1 MONTH PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.

14. Indemnification

Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Service.

15. Publicity

Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.

16. Assignment

Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.

17. Notices

Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to: aussupport@clubwise.com. Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Service.

18. Attorney’s Fees

In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.

19. Relationship of the Parties

This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.

20. No Third-Party Beneficiaries

This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

21. Equitable Remedies

Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.

22. Force Majeure

Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.

23. Limitation of Claims

No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.

24. FCPA Compliance

Customer will comply with the Criminal Code Act 1995 (as amended) and any analogous law or regulations existing in any other country or region, in connection with its performance under this Agreement. Customer shall not make any payment, either directly or indirectly, of money or other assets, including but not limited to compensation derived from this Agreement to government or political party officials, candidates for government or political office, or representatives of other businesses or persons acting on behalf of the foregoing, that would violate any applicable law, rule or regulation.

25. Export Compliance

Customer must comply with foreign and international export, import and anti-boycott laws and regulations. Such export laws govern use of the Service including technical data and any Service deliverables provided under this Agreement and Customer agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer is responsible for ensuring that no data, information, software programs and/or materials resulting from the Service (or direct product thereof) will be exported directly or indirectly in violation of these laws. Customer will indemnify Company for any violation by Customer of any applicable export controls or economic sanctions laws and regulations.

26. Governing Law, Jurisdiction and Venue

This Agreement will be governed by and construed in all respects in accordance with the laws of Victoria, Australia, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the courts located in Victoria. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.

27. Severability, Waiver and Amendment

If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorised representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.

28. Counterparts, Entire Agreement and Order of Precedence

This Agreement or any Order Form may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Order Form(s) states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Order Form; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.