Last Updated: March 15, 2013
These Malwarebytes Subscription Services Terms of Service (“Terms”) govern your use of the subscription-based services made available by Malwarebytes Corporation (“Malwarebytes”, “Our”, “Us” or “We”). These Terms do not govern use of the Malwarebytes website (which is governed by the Malwarebytes Website Terms of Service, accessible at https://www.malwarebytes.com/policy/site_tos or purchases made via the Malwarebytes online store (which is governed by separate Terms and Conditions, accessible at https://www.malwarebytes.com/cb-tos/). They are effective between You and Malwarebytes as of the date of Your acceptance of these Terms.
BY ACCEPTING THESE TERMS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, YOU AGREE TO THE THESE TERMS. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" WILL REFER TO SUCH COMPANY OR ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SUBSCRIPTION SERVICES
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
"Subscription Services" means the online subscription-based services provided by Malwarebytes via the Site.
“Site” means the Malwarebytes website, accessible at www.malwarebytes.com.
“Software” means any software we make available for download in connection with the Subscription Services, including, but not limited to any sever software or other software we make available or provide in connection with the Subscription Services.
"You" or "Your" means the individual, company or other legal entity that is a party to these Terms.
“Your Data” means any content, information or other data You make available via the Subscription Services.
2. FREE TRIAL. We may make one or more Subscription Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered or are registering to use the applicable Subscription Services or (b) the start date of any Subscription Services purchased by You. Additional terms and conditions applicable to the free trial period will be made available to You via the Site when You start a trial and are incorporated into these Terms by reference. ANY OF YOUR DATA YOU MAKE AVAILABLE VIA THE SUBSCRIPTION SERVICES DURING YOUR FREE TRIAL PERIOD MAY BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SUBSCRIPTION SERVICES WITHIN 30 DAYS AFTER THE END OF THE FREE TRIAL.
3. SUBSCRIPTION SERVICES. We will make the Subscription Services available to You pursuant to these Terms and during a subscription term that You select at the time You purchase the Subscription Services. You agree that Your purchase of Subscription Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. Unless otherwise specified at the time You purchase the Subscription Services and depending on the selections you make via the Site at the time You purchase the Subscription Services, we will charge You a recurring fee for use of the Subscription Services in accordance with the selections you make via the Subscription Services. You understand and agree that if You grant access to your account to third parties, that such third parties will be able to access and view all of Your Data in your account. You are solely responsible for all actions taken under Your account.
4. USE OF THE SUBSCRIPTION SERVICES
4.1 Our Responsibilities. We will: (i) provide You with basic support for the Subscription Services at no additional charge, and/or upgraded support if purchased separately; (ii) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We will give at least 8 hours notice via the Subscription Services and which We will schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays;, and (iii) provide the Subscription Services only in accordance with applicable law.
4.2. Your Responsibilities. You will (i) be responsible for compliance with these Terms, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your use of the Subscription Services, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services, and notify Us promptly of any such unauthorized access or use, (iv) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, and (v) use the Subscription Services only in accordance with applicable law and any written instructions that We provide to You. You will not (a) make the Subscription Services available to third parties; (b) sell, resell, rent or lease the Subscription Services; (c) use the Subscription Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Subscription Services to store or transmit viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein; or (f) attempt to gain unauthorized access to the Subscription Services or their related systems or networks.
4.4 Data Security and Storage. If You purchase a version of the Subscription Services that contains a data backup feature, We shall adopt adequate archival procedures to store Your Data. In the event of any loss or corruption of Your Data, We shall use Our commercially reasonable efforts to restore any lost or corrupted copies of Your Data from the latest backup of Your Data maintained by Us in accordance with Our archival procedures. We shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Your Data caused by any third party. Please note that You are solely responsible for maintaining original versions of Your Data and Our sole role is to store copies thereof. OUR EFFORTS TO RESTORE LOST OR CORRUPTED COPIES OF YOUR DATA PURSUANT TO THIS SECTION 4.4 SHALL CONSTITUTE OUR SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF YOUR DATA. We reserve the right to establish or modify Our general practices and limits relating to storage of Your Data.
5. FEES AND PAYMENT FOR SUBSCRIPTION SERVICES
5.1. Fees. You will pay all fees specified on the Site at the time you place an order to use the Subscription Services hereunder. Except as otherwise specified in these Terms or at the time of purchase, (i) fees are quoted and payable in United States dollars; (ii) fees are based on Subscription Services purchased; and (iii) payment obligations are non-cancelable and fees paid are non-refundable. Subscription fees are based on usage of the Subscription Services during the subscription term (depending on the selections you make via the Site at the time of purchase) that begins on the subscription start date and ends on each anniversary thereof, as applicable.
5.2. Invoicing and Payment. You will provide Us with valid credit card information. When You provide Us with credit card information You authorize Us to charge such credit card for all Subscription Services purchased at the time You order the initial subscription term and to charge your credit card again for any renewal subscription term(s) to which you subscribe as set forth in Section 11.2 (Term of Subscriptions). Such charges will be made in advance, in accordance with the billing frequency stated at the time You order the Subscription Services. If, at the time You order the Subscription Services, it is specified on the Site that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant order. Unless otherwise stated by Us in writing at the time of ordering the Subscription Services, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Subscription Services.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and orders on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under these Terms or any other agreement for Our Subscription Services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreement so that all such obligations become immediately due and payable, and suspend Our Subscription Services to You until such amounts are paid in full. In addition, if any amount owing by You under these Terms or any other agreement for Our Subscription Services is 60 or more days overdue, We may, without limiting Our other rights and remedies, delete Your Data from the Subscription Services.
5.5. Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or Section 5.4 (Suspension of Service and Acceleration) if You are disputing in good faith the applicable charges and You are cooperating diligently to resolve the dispute.
5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount will be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Subscription Services, including all related Intellectual Property Rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Restrictions. You will not (i) permit any third party to access the Subscription Services except as permitted herein, (ii) create derivative works based on the Subscription Services, (iii) copy, frame or mirror any part or content of the Subscription Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Subscription Services, or (v) access the Subscription Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Subscription Services.
6.3. Suggestions. You grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Subscription Services any suggestions, enhancement requests, recommendations or other feedback provided by You relating to the operation of the Subscription Services.
6.4. Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
6.5. Federal Government End Use Provisions. We provide the Subscription Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in these Terms. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).7. CONFIDENTIALITY
7.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information will include Your Data; Our Confidential Information will include the Subscription Services; and Confidential Information of each party will include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranty. During any free trial period, the Services are provided “AS IS” without warranty of any kind. Except as provided in the preceding sentence, we warrant that the Services shall operate in all material respects in accordance with the specifications as described on the Site. As Your sole and exclusive remedy and Our entire liability for any breach of the foregoing warranty, We will, at our sole option and expense, modify the Services so that they conform to foregoing warranty or, if We are unable to modify the Services to so conform, refund to You the fees paid for the non-conforming Services. We shall not be responsible to the extent a failure of the Services to operate as warranted is caused by or results from: (i) modification of the Services by anyone other than Us or Our designee; (ii) combination, operation or use of the Services with Your or a third party's applications, software or systems, unless the foregoing were furnished by Us; (iii) abuse, willful misconduct or negligence by anyone other than Us or Our designee; or (iv) use of the Services other than in accordance with the terms of this Agreement and/or the User Guide.
8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any viruses or other malicious code (except for viruses or malicious code previously transmitted to the warranting party by the other party).
8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MALWAREBYTES DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND MALWAREBYTES SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.9. MUTUAL INDEMNIFICATION
9.1 Indemnification by You. You shall defend (or settle), indemnify and hold harmless Malwarebytes, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Your use of the Subscription Services (other than any claim for which Malwarebytes is responsible under Section 9.2); (ii) You has used the Subscription Services in a manner that violates these Terms or (iii) Your Data infringes or misappropriates the Intellectual Property Rights of any third party. Your obligations under this Section 9.1 are contingent upon: (a) Malwarebytes providing You with prompt written notice of such claim; (b) Malwarebytes providing reasonable cooperation to You, at Your expense, in the defense and settlement of such claim; and (c) You having sole authority to defend or settle such claim.
9.2 Indemnification by Malwarebytes. Malwarebytes shall defend (or settle) any suit or action brought against You to the extent that it is based upon a claim that the Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against You. Malwarebytes’ obligations under this Section 9.2 are contingent upon: (a) You providing Malwarebytes with prompt written notice of such claim; (b) You providing reasonable cooperation to Malwarebytes, at Malwarebytes’ expense, in the defense and settlement of such claim; and (c) Malwarebytes having sole authority to defend or settle such claim. In the event that Malwarebytes’ right to provide the Subscription Services is enjoined or in Malwarebytes’ reasonable opinion is likely to be enjoined, Malwarebytes may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate these Terms without liability to You. THE FOREGOING STATES THE ENTIRE OBLIGATION OF MALWAREBYTES AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. Malwarebytes shall have no liability under this Section 9.2 to the extent that any third-party claims described herein are based on use of the Subscription Services in a manner that violates these Terms or the instructions given to You by Malwarebytes.10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. IN NO EVENT WILL MALWAREBYTES’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU HEREUNDER IN THE SIX (6) MONTH PERIOD PRECEDING THE INCIDENT. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR SUBSCRIPTION SERVICES).
10.2. Exclusion of Consequential and Related Damages. NEITHER MALWAREBYTES NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SUBSCRIPTION SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SUBSCRIPTION SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SUBSCRIPTION SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MALWAREBYTES HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS OF DAMAGES SET FORTH IN THIS SECTION 10 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MALWAREBYTES AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.11. TERM AND TERMINATION
11.1. Term. These Terms commence on the date You accept these Terms and, unless terminated earlier in accordance with these Terms, continue until any order form entered into between You and Us expires or terminates. If You elect to use the Subscription Services for a free trial period and do not purchase a subscription before the end of that period, these Terms will terminate at the end of the free trial period.
11.2. Term of Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable order and, unless terminated earlier in accordance with these Terms, continue for the subscription term specified therein. Except as otherwise specified in the applicable order, all subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least ten (10) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless We have given You notice of a pricing increase before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter. If You provide notice of non-renewal during the relevant subscription term, these Terms and your right to use the Subscription Services will terminate at the end of the relevant subscription term.
11.3. Termination for Cause. A party may terminate these Terms for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4. Refund or Payment upon Termination. Upon any termination for cause by You, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You will pay any unpaid fees covering the remainder of the term of all orders after the effective date of termination. In no event will any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. 11.5. Your Data. In the event you cancel your subscription and terminate this Agreement, or if this Agreement is otherwise terminated pursuant to Section 5 above, Malwarebytes will use commercially reasonable efforts retain Your Data for a period of 30 days, if You purchased a version of the Subscription Services that contains a data backup feature, at which point Malwarebytes reserves the right, in its sole discretion, to delete such data, applicable. 11.6. Surviving Provisions. Section 5 (Fees and Payment for Subscription Services), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Your Data), 11.6 (Surviving Provisions) and 12 (General Provisions) will survive any termination or expiration of these Terms. 12. GENERAL
12.1. Manner of Giving Notice. Except as otherwise specified in these Terms, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to You will be addressed to the system administrator designated by You for Your relevant Subscription Services account, and in the case of billing-related notices, to the relevant billing contact designated by You. Direct written Notices to: Malwarebytes Corporation Attn: Policies 3979 Freedom Circle, Santa Clara, CA 95054 or, via email to firstname.lastname@example.org
12.2. Governing Law and Jurisdiction. These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action related to the Subscription Services or these Terms will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
12.3. Compliance with Laws. Each party shall comply with all applicable laws and regulations with respect to its activities under these Terms including, but not limited to, the export laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing You shall not permit Users to access or use Subscription Services in violation of any U.S. export embargo, prohibition or restriction.
12.4. Relationship of the Parties. The parties are independent contractors. These Terms does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
12.7. Assignment. You may not assign or transfer these Terms, whether by operation of law or otherwise, without the prior written consent of Malwarebytes. Any attempted assignment or transfer, without such consent, shall be void. Malwarebytes may assign these Terms freely, without obtaining consent from You. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.8. Entire Agreement. These Terms constitutes the entire and exclusive agreement between the parties concerning its subject matter and supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of these Terms will be effective unless in writing and either signed or accepted electronically by a duly authorized representative of each party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation will be incorporated into or form any part of these Terms, and all such terms or conditions will be null.