Younility Inc. provides an integrated software and hardware solution with software as a service. This Agreement applies to anyone subscribing for the services and governs subscription and use of Younility Inc. services.
THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE SOFTWARE AND THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE DOWNLOADING THE SOFTWARE AND/OR ORDERING SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A PURCHASE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
“Customer Data” means location data and other information transmitted by the Customer and/or its Permitted Users over the Younility Inc. Service which may be hosted and stored by Younility Inc. in accordance with this Agreement;
“Documentation” means any and all hard copy and electronic documentation that Younility Inc. generally makes available to subscribers to the Younility Inc. Service, including “how to” user guides and reference materials;
“Equipment” means the hardware components of the Younility Inc. Service which Customer is required to have in order to use and receive the Younility Inc. Service including smartphone Equipment embedded with Younility Inc. proprietary software;
“Fees” means the fees payable by Customer to Younility Inc. for the right to receive access to the Younility Inc. Service and Support Services including monthly subscription fees, all as further described on the Website and in the Documentation;
“Intellectual Property” means all rights in any invention, discovery, improvement, utility model, patent, copyright, trademark, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world whether or not registered, and shall include all rights in any applications and granted registrations for any of the foregoing rights;
“Permitted User(s)” means a person who is authorized by Customer to use the Younility Inc. Service, whether a person operating a vehicle with in-vehicle Equipment or a person who is provided a login and password by Customer to access the Younility Inc. Service remotely to access and create Customer Data;
“Support Services” means any services and features provided by Younility Inc. in support of or supplemental to the Younility Inc. Service including online training, analytics, support and hosting each as further described on the Website;
“Term” has the meaning given in Section 10;
“Third Party Software” has the meaning given in Section 2.1;
“Younility Inc. Service” means the web-based, fleet management service for routing and coordination of fleets through Younility Inc.’ proprietary systems and network, as further described in the Documentation;
“Younility Inc. Software” means any software pre-loaded on Equipment by Younility Inc.; and
“Website” means www.younility.com or such other URL as indicated by Younility Inc. from time to time where information and access to the Younility Inc. Service is available.
2. SERVICE TERMS.
2.1 Provision of Younility Inc. Service.
Conditioned on the terms and conditions of this Agreement and payment of the Fees, Younility Inc. shall make the Younility Inc. Service and the Support Services available to Customer and it’s Permitted Users during the term of the Customer’s subscription.
2.2 Customer Account Access.
Younility Inc. hereby grants to Customer a non-exclusive, non-transferable internal license to use and access the Website and user interface for the purpose of using the Younility Inc. Service and the Support Services during the Term. Customer shall be provided with login details enabling direct access to its database of Customer Data, analytics and reports based on the same. Customer shall have the ability to edit, add to and delete content which is in its database and account.
2.3 General Service Warranties.
Younility Inc. represents and warrants that during the Term (i) it will provide the Younility Inc. Service and Support Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) the Younility Inc. Service shall perform materially in accordance with the Documentation. For greater certainty, Younility Inc. does not warrant that Customer’s use of the Service will be error-free or uninterrupted.
2.4 Younility Inc. Service Responsibilities. Younility Inc. shall use commercially reasonable efforts to (i) maintain the security and integrity of the Younility Inc. Service and the Customer Data; and (ii) make the Younility Inc. Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by a force majeure event (see further section 12.11).
2.5 Incremental Services.
From time to time, additional Younility Inc. or third-party functionality (such functionality being deemed not to be part of the Younility Inc. Service) may be made available by Younility Inc. to Customer (in the case of third-party functionality, such functionality being made available on a pass-through basis pursuant to terms specified by the third-party provider of such functionality), and which additional functionality may be purchased by Customer for additional fees in accordance with any additional terms and conditions specified by Younility Inc.
2.6 Customer Account & Content Responsibilities.
Customer is responsible for all activities that occur in Permitted User accounts and for maintaining the security and confidentiality of any login details to such accounts. Customer is responsible for any and all content provided hereunder and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Client Data to be made available to Younility Inc. for Younility Inc. to transmit, host and store. For greater certainty, Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Younility Inc. Service and notify Younility Inc. promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Younility Inc. Service and providing Client Data to its Permitted Users.
2.7 Use Restrictions.
Customer shall not (and shall not allow any person to):
(a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Younility Inc. Service;
(b) circumvent any user limits or other timing or use restrictions that are built into the Younility Inc. Service or attempt to again unauthorized access to the Younility Inc. Service or its related systems or networks;
(c) remove any proprietary notices, labels, or marks from the Younility Inc. Service, Documentation or Equipment;
(d) frame or mirror any content forming part of the Younility Inc. Service, other than as expressly permitted in the Documentation;
(e) access the Younility Inc. Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions of the Younility Inc. Service;
(f) input or access data into the Equipment while navigating a vehicle which is in motion;
(g) resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Younility Inc. Service (or any of its components) available to any third party without Younility Inc.’ prior written consent;
(h) use the Younility Inc. Service to (1) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights;
3. SOFTWARE TERMS
3.1 Grant of License for Embedded Software.
Conditioned on the terms and conditions of this Agreement and payment of the Fees, Younility Inc. grants Customer a non-exclusive, non-transferable license during the Term to use the Software in accordance with the Documentation. Binary code versions of certain third-party software may be embedded in or delivered with the Equipment (“Third-Party Software”). If a separate license agreement for an item of third-party software is delivered to Customer with the Equipment or referenced in any material that is provided with the Equipment, then such third-party software shall be Third-Party Software and such separate license agreement shall govern the use of that item or version of such third-party software. Customer’s right to use any Third-Party Software, third-party data, third-party software or other third-party content provided with the Software shall be limited to the use necessary to operate the Software as permitted by this Agreement. No other rights in the Software or Third-Party Software are granted to Customer. Notwithstanding the foregoing, in the case of Third-Party Software that is licensed pursuant to open source licenses that prohibit the imposition of any restrictions on use beyond those contained in such open source licenses, the restrictions on use contained in this Agreement shall not be applicable to such Third-Party Software.
4. HARDWARE/EQUIPMENT TERMS
4.1 Equipment Procurement Terms: General.
Customer can procure Equipment from Younility Inc. for the prices specified in a custom quote from Younility Inc.’ partners sent by email or fax if Customer has elected to have the phone-optimization services. Additional Equipment may be procured from time to time at Younility Inc. then-current price list or as quoted to Customer in a written quotation from Younility Inc.. Upon receipt of a purchase order from Customer for a quantity of Equipment, Younility Inc. will deliver the Equipment(s) by Fedex or other notified means to Customer’s designated premises on signup/account creation. Unless specified in advance by Customer, Younility Inc. will select a carrier in its own discretion. Customer shall be responsible for all freight, packing, insurance and other shipping-related expenses. Risk of loss will pass to Customer upon delivery of the Equipment by Younility Inc. or one of its agents, as the case may be to Customer’s premises. Neither Customer nor any person shall modify or alter any Equipment(s) supplied by Younility Inc. for use with the Younility Inc. Service. Any support or other service required as a result of any abuse, modification, alteration or installation of any additional software on any Equipment(s) provided by Younility Inc. for use with the Younility Inc. Service shall be charged as additional professional services at Younility Inc. then-current professional services rate.
4.2 Equipment and IP.
Younility Inc. or its licensors are the owners of all Intellectual Property in the software or firmware included in the Equipment is licensed and not sold on a perpetual, royalty-free non-exclusive license basis for use solely with the Equipment. The Equipment shall retain any proprietary markings (including copyright and patent) provided there or required by Younility Inc. or its third party licensors.
4.3 Equipment Warranties.
Third party components are sold with the benefit of the warranty provided to you at the time of purchasing the equipment (the “OEM Warranty”). Apart from the OEM Warranty, third party products are provided ‘as is’. In respect of Equipment purchased pursuant to the Younility Inc. Accident Protection plan (“TAP”) the terms applicable available on the Website will apply to protect the Equipment from the date of delivery to Customer (the “TAP Warranty”). Notwithstanding the generality of the foregoing, the TAP Warranty will not apply if the relevant Equipment have been tampered with or modified in any way by anyone other than Younility Inc. or its agents. Furthermore, improper use of the Equipment will void the TAP Warranty. Customer must comply with the returns procedure indicated in the TAP document.
5. PAYMENT TERMS
In consideration for the receipt of the Younility Inc. Service and its components by Customer, Customer shall pay the Fees as specified on the ecommerce portal of the Website.
5.2 Invoicing & Payment.
Fees for the Younility Inc. Service will be invoiced in advance on a monthly or annual basis depending on the subscription plan selected and will include the basic subscription cost of the Younility Inc. Service together with Support Services. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. Equipment fees will be due net thirty (30) days from the date of invoice. Equipment fees must be paid prior to any delivery of the Equipment. Customer is responsible for maintaining complete and accurate billing and contact information with Younility Inc. by updating its online account.
5.3 Overdue Payments.
Any payment not received from Customer by the due date may accrue, at Younility Inc.’ discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Unless otherwise stated, Younility Inc.’ fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement, excluding taxes based on Younility Inc.’ net income or property.
Suspension of Service. If Customer’s account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Younility Inc. shall have the right to suspend the Younility Inc. Service provided to Customer and/or delivery of any additional Equipment(s), without liability to Customer, until such amounts are paid in full.
6. PROPRIETARY RIGHTS
6.1 Reservation of Rights.
The rights and licenses granted under this Agreement are only as expressly set forth herein. Younility Inc. reserves all rights, title and interest in and to the Younility Inc. Service, including all related Intellectual Property. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement.
6.2 Customer Data.
As between Younility Inc. and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. For the Term hereof, Customer grants to Younility Inc. and its affiliates a non-exclusive, worldwide right and license to access and use the Customer Data to the extent necessary to provide the Younility Inc. Service.
Younility Inc. shall have a royalty-free, perpetual, unrestricted license to use or incorporate into the Younility Inc. Service and components any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Permitted Users relating to the Younility Inc. Service or any component thereof.
7. CONFIDENTIALITY & PRIVACY
7.1 Definition of Confidential Information.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (the“Disclosing Party”) disclosed to the other party (the “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, including the terms and conditions of this Agreement, the Customer Data, the Software, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
7.4 Compelled Disclosure.
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections contained in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
8.1 General Warranties.
Each party represents, warrants to the other party that: (i) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (ii) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; and (iii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties.
8.2 Customer Warranties.
Customer represents and warrants that: (a) Customer has all rights necessary to provide Younility Inc. with Customer Data and any other content for use in accordance with the terms of this Agreement; and (b) Younility Inc.’ use of such content in accordance with the terms of this Agreement will not violate the rights of any third party.
EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, YOUNILITY INC. MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.1 Indemnification by Younility Inc..
Younility Inc. shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) awarded to a third party against Customer by a court of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against Customer by a third party alleging that the use of the Younility Inc. Service as contemplated hereunder infringes the patent or copyright of a third party (“IP Claims”); subject to the condition that Customer (a) promptly gives written notice of any IP Claim to Younility Inc.; (b) gives Younility Inc. sole control of the defense and settlement of each IP Claim; and (c) provides to Younility Inc., at Younility Inc. ‘s cost, all reasonable assistance in respect to each IP Claim.
If (a) Younility Inc. becomes aware of an actual or potential IP Claim, or (b) Customer provides Younility Inc. with notice of an actual or potential IP Claim, Younility Inc. may (or in the case of an injunction against Customer, shall), at Younility Inc.’ sole option and determination: (I) procure for Customer the right to continue to use the Younility Inc. Service; or (II) replace or modify the Younility Inc. Service (or the affected components) with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Younility Inc. Service and refund to Customer any pre-paid Fees for any periods after the termination of the Younility Inc. Service, less any outstanding moneys owed by Customer to Younility Inc..
The indemnity in Section 8.1 does not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Younility Inc. Service furnished by Younility Inc. with other products, software or services not provided by Younility Inc.; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Younility Inc. Service outside the scope of the rights granted in this Agreement.
9.4 Indemnification by Customer.
Subject to this Agreement, Customer shall defend, indemnify and hold Younility Inc. harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with: (i) any claims, demands, suits, or proceedings made or brought against Younility Inc. alleging that the Customer Data, or Customer’s use of the Younility Inc. Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; or (ii) any breach of Customer’s warranties hereunder ((i) and (ii) together“Customer Claims”); provided, that Younility Inc.: (a) promptly gives written notice of each Customer Claim to Customer; (b) gives Customer sole control of the defense and settlement of each Customer Claim (provided that Customer may not settle any Customer Claim unless it unconditionally releases Younility Inc. of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance in respect to each Customer Claim.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability.
IN NO EVENT SHALL YOUNILITY INC.’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
10.2 Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF REVENUES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOUNILITY INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Certain Damages Not Excluded.
NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (II) ANY CLAIMS FOR NON-PAYMENT.
11. TERM AND TERMINATION.
11.1 Subscription Term.
These Terms apply from the date of subscribing for the Younility Inc. Services and remain in full force unless/until Customer’s subscription terminates or expires
11.2 Termination for Cause.
A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party 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.
11.3 Outstanding Fees.
Termination or expiration shall not relieve Customer of the obligation to pay any fees accrued or payable to Younility Inc. prior to the effective date of termination or expiration.
11.4 Surviving Provisions.
The following provisions shall survive any termination or expiration of this Agreement: Sections 1, 6-10, 11.4, 12.
12. GENERAL PROVISIONS.
12.1 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this Agreement.
Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
All notices under this Agreement shall be in writing and shall 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 same day after sending by email. Notices to Younility Inc. shall be sent to Younility Inc.’ registered address to 20 Camelot Dr. Suite 600 Ottawa, ON K2G 5X8 and addressed to the Legal Department. Notices to Customer shall be addressed to Customer’s designated contact person specified on subscription.
12.5 Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall 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.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall 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 this Agreement shall remain in effect.
Customer shall not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of Younility Inc.. Any attempt to assign in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.8 Governing Law.
This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
12.9 Venue; Waiver of Jury Trial.
The provincial and federal courts located in Ottawa, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement
12.10 Force Majeure.
Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
12.11 Entire Agreement.
This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any schedule, exhibit or addendum hereto, the terms of such schedule, exhibit, addendum shall prevail. Notwithstanding any language to the contrary therein, no pre-printed terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.