1.
Definitions. The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement, an Order Form or in Komment’s DPA.
a.
"Affiliate" means any entity that Controls, is Controlled by, or is under common Control with the Customer.
b.
"API(s)" means any application programming interface.
c.
"Authorized User" means any individual employee, contractor or agent of Customer authorized by Customer to use the Komment Assets.
d.
"Beta Features" means any Komment Asset features, functionality or services which Komment may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
e.
"Confidential Information" means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and: (i) with respect to Komment, the Komment Assets and Usage Metadata; and (ii) with respect to Customer, the Customer Data. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
f.
"Control" means ownership, directly or indirectly, of 50% or more of the voting interest with the power to direct or cause the direction of the management and policies of such entity.
g.
"Customer Application" means an application owned and operated by Customer.
h.
"Customer Data" means all data provided by, or on behalf of, Customer in connection with or by means of the Service, including any Personal Data as that term is defined under the DPA or as otherwise set under applicable laws. Notwithstanding anything to the contrary in this Agreement, Customer Data does not include Usage Metadata.
i.
"Customer Environment" means equipment, systems, servers, and workstations owned or managed solely by Customer.
k.
"Deployment Type" and/or "Deployment" means the deployment type of the Service purchased and/or used by Customer as identified in an Order Form and that specifies the permitted use under this Agreement.
l.
"Documentation" means the user guides, operating manuals and all other materials provided by Komment that describe the installation, operation, use or technical specifications of the Komment Assets.
m.
"Komment Assets" means the Software, Service and Documentation.
n.
"Komment Integration(s)" means any Komment API and/or webhook integration that integrates a supported Partner Application and the Customer Application with the Service, which is made available by Komment during the Term to Customer, and as further specified in an Order Form.
o.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs designed to intentionally disrupt or disable any systems, software, applications, files or other data.
p.
"Order Form" means an ordering document for a subscription to access and use the Komment Assets: (i) signed in writing by Customer and Komment; (ii) purchased through the Service (e.g., by means of the Service dashboard); or (iii) via a third-party marketplace (e.g., via Amazon AWS Marketplace).
q.
"Output" means the technical documentation of software components and associated metadata created by Customer via the Service for the Customer Application and through Komment Integrations.
r.
"Partner" means a third-party provider of a SaaS solution used by Customer (e.g., typically in the Git space including, but not limited to as GitHub, GitLab, BitBucket and CodeCommit).
s.
"Partner Application(s)" means any application owned and operated by a Partner including those described in an Order Form or otherwise approved by Komment in writing.
t.
"Private Repository" means a storage location for Customer Application software code that is available only to the Authorized Users and not available to the public.
u.
"Prohibited Content" means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; or (iv) contains Malicious Code.
v.
"Public Repository" means a storage location for Customer Application software code that is available to the public.
w.
"Service" means Komment’s proprietary Software algorithms to assist software developers automate commenting workflows which includes the Software and Documentation.
w.
"Software" means software that Komment develops and maintains in order to provide the Service, including the Beta Features, and all modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works thereof to each of the foregoing.
y.
"Subscription Term" is the length of the subscription specified in the applicable Order Form.
z.
"Support" has the meaning specified in Section 3(c) below.
aa.
"Taxes" means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.
bb.
"Unit" means a number of permitted uses of a particular Komment product and/or service as specified under an Order Form.
cc.
"Usage Metadata" means all data provided by, or on behalf of, Customer in connection with or by means of the Service (e.g., project metadata, number of developers, amount of use, push notices, etc.), including via Support. Usage Metadata is not Customer Data and does not consist of Personal Data (as defined in the DPA).
2. Grant of License to the Komment Assets; Restrictions.
a.
Grant of License to the Komment Assets. Subject to the terms of this Agreement and the applicable Order Form, Komment grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Term, solely for Customer’s internal business operations and up to the number of Units specified in the Order Form: (i) for Free and Premium Deployment Types, to access and use the Service and Documentation with the Customer Application via Komment Integrations to create Output in Public Repositories and/or Private Repositories; and (ii) for Enterprise Deployments, to install and use the Service and Documentation with the Customer Application to create Output via Komment Integrations solely within the Customer Environment in Private Repositories.
b.
Komment Asset Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Komment Assets; (ii) share any Komment issued access credentials with any third party; (iii) replicate, reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software and/or Service; (iv) access the Komment Assets in order to benchmark, or monitor the availability, security, performance, or functionality of the Komment Assets, for any competitive purposes without Komment’s express written consent; (v) modify, adapt, or translate the Komment Assets or remove or modify any proprietary markings or restrictive legends placed on or within the Komment Assets; (vi) make copies, store, or archive, any portion of the Komment Assets without the prior written permission of Komment; (vii) use the Komment Assets in violation of any applicable law; (viii) introduce, any Malicious Code into the Komment Assets; or (ix) exploit the Komment Assets in any unauthorized manner including by circumventing any process Komment has put in place to safeguard the Software and/or Service or by using flood pings, denial-of-service attacks, or by deploying spiders, web-bots, screen-scrapers, or web crawlers, that may damage or adversely affect server or network capacity or Service infrastructure (together, (i) through (ix) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
c.
Trial Period. Subject to the terms of the Agreement and Order Form, including payment of all Trial Period fees (if any), commencing on the Effective Date for the period set forth on the Order Form Customer will have the right to use the Komment Assets for evaluation purposes ("Trial Period"). Prior to the end of the Trial Period, Customer may terminate this Agreement without further obligation upon written notice to Komment ("Trial Termination Notice"). If Komment does not receive a Trial Termination Notice prior to the end of the Trial Period, the Subscription Term commences upon the expiration of the Trial Period, and Komment will invoice Customer in accordance with Section 7.
d.
Beta Features. Beta Features made available by Komment are provided to Customer for testing purposes only. Komment makes no commitments to provide Beta Features in any future versions of the Komment Assets or otherwise. Customer is not obligated to use Beta Features. Komment may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Komment does not provide support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.
e.
Customer Affiliates. Customer Affiliates shall only have the right to access and use the Komment Assets pursuant to this Agreement if explicitly stated on the Order Form or otherwise agreed in writing by the parties. Customer shall ensure that each such Affiliate complies with the terms and conditions of this Agreement and Customer shall be responsible and liable for any breach of this Agreement by any such Affiliate.
f.
Third-Party Applications. The Software and Service integrate with Partner Applications and other third-party products, services, tools or applications that are not owned or controlled by Komment (together, "Third-Party Application(s)"). Komment neither licenses Third Party Applications for Customer’s benefit nor endorses any Third-Party Applications. This Agreement does not apply to such Third-Party Applications including Customer’s use thereof. KOMMENT HAS NO LIABILITY OR OBLIGATION OF ANY KIND RELATED TO ANY THIRD-PARTY APPLICATIONS USED BY CUSTOMER.
a.
Customer Application; Partners; Internet Connections. Customer will be responsible for the Customer Application, maintaining Customer partnerships with Partners necessary for each Komment Integration, and obtaining Internet connections necessary for Customer to access the Service via the Customer Environment.
b.
Enterprise Deployment Type: Implementation & Updates & Usage Data. For Komment’s Enterprise Deployment Type, promptly following the Effective Date and during the Term: (A) Komment will make available, by a means specified in the Order Form (e.g., via Resellers (defined below) or secure file sharing), an "Infrastructure as Code" (IAC) asset for the Partner Application as specified in the Documentation and Komment will notify Customer via email of updates to such IAC asset prior to their release; and (B) Customer is responsible for downloading and implementing each IAC asset of the Service, including all IAC asset updates thereto, within the Customer Environment. Customer will implement all IAC assets in a timely fashion. If Customer fails to do so, performance of the Service may be impacted.
c.
Informed Consent. During the Term, Customer will ensure that all relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer, as required by all applicable data protection laws, to accomplish the purposes of this Agreement and the DPA.
d.
Export. The Software and/or Service are subject to export control laws and regulations. Customer may not access or use the Software and/or Service or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Software, Service nor any underlying information or technology, may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
e.
User Accounts & Passwords. Customer will ensure that all Authorized Users safeguard Authorized User accounts and passwords. Customer will notify Komment immediately if it learns of any unauthorized use of any Authorized User accounts or passwords or any other known or suspected breach of security.
a.
Payments. Komment will invoice Customer for all fees and any applicable taxes as provided in the applicable Order Form and subsequent invoice. Unless otherwise provided for in an Order Form: (i) all amounts are due and payable to Komment within thirty (30) days from the date of Komment’s invoice; and (ii) all fees are based on the Komment Assets purchased, not on actual use and are non-refundable.
b.
Taxes. Customer will pay all applicable Taxes excluding only those based on Komment’s net income. If Customer is compelled to make a deduction or set-off for any such Taxes, Customer will pay Komment such additional amounts as necessary to ensure receipt by Komment of the full amount Komment would have received but for the deduction. Any applicable direct pay permits or valid Tax-exempt certificates must be provided to Komment prior to the execution of this Agreement. If Komment is required to collect and remit Taxes on Customer’s behalf, Komment will invoice Customer for such Taxes, and Customer will pay Komment for such Taxes in accordance with Section 6(a).
c.
Late Payments. In the event that Komment does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, Komment may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); (ii) condition future Komment Asset renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend and terminate for failure to pay (if applicable) the Komment Assets pursuant to Section 7(b).
d.
Credit Card Processing. For online Order Forms that require Customer’s payment by credit card, Komment uses a third-party credit card processing service to process payments. Customer consents to the use of such service and to the transfer of Customer’s credit card details to such third-party processor for the purposes of such transaction. Customer agrees to be bound by any separate terms applicable to the processing service. Customer’s credit card will be charged fees automatically for Customer’s use of the Komment Assets at the end of each billing cycle.
e.
Purchases Through Authorised Marketplaces, Distributors & Resellers. The terms of this Agreement related to pricing, payment or Taxes do not apply to any Customer Orders placed through authorized Komment third party marketplaces (e.g., AWS Marketplace, Microsoft Azure Marketplace, etc.), distributors and/or resellers (together, "Komment Resellers") where Customer pays the applicable fees directly to such Komment Reseller. While the terms of this Agreement will apply to Customer’s use of the Service, Customer will establish other terms independently with the Komment Reseller as applicable to Customer’s purchase through such Komment Reseller.
a.
Term. The Term commences on the Start Date and continues for the Subscription Term identified in the Order Form ("Initial Term") and the Agreement will be automatically extended for additional terms each for the Duration (each, a "Renewal Term") unless terminated as provided for in this Agreement. No less than sixty (60) days before the end of the Initial Term or any Renewal Term thereafter, either party may give the other party written notice of termination, in which case this Agreement will terminate at the end of the current Initial Term or Renewal Term. "Term" means the Initial Term and each Renewal Term collectively.
b.
Suspension & Termination for Non-Payment. Komment may suspend Customer’s access to, or use of, the Komment Assets upon written notice to Customer if any amount due to Komment under any invoice is past due. If Customer fails to pay within 30 days of receipt of Komment’s notice of suspension for late payment, Komment may terminate this Agreement and/or the applicable Order Form immediately upon written notice to Customer.
c.
Suspension for Partner Application Failures. In the event a Partner, or if Customer, prevents or ceases access to a Partner Application or means necessary to accomplish a Komment Integration with a Partner Application, Komment may suspend or cease providing the Units specified in the Order Form and in such case, Customer will receive no refund, credit, or other compensation.
d.
Termination. Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days’ notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
e.
Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), Komment will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Term as of the date of such termination. Upon termination or expiration of this Agreement for any reason, Komment will, upon written request and within 30 days of such request, delete all Customer Data processed on behalf of Customer during the Subscription Term as specified in the DPA and shut off access to the Service.
f.
Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 14 (Miscellaneous, as applicable).
a.
Protection of Confidential Information. Each party that receives ("Receiving Party") Confidential Information of the other party ("Disclosing Party") will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.
b.
Representatives. Receiving Party may disclose, distribute, or disseminate Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its "Representatives"), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
c.
Applicable Laws & Court Orders. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
d.
Injunctive Relief. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
a.
Komment Property. Komment owns and retains all right, title, and interest in and to the Komment Assets (including for clarity any part thereof) and Usage Metadata. Except for the limited license granted to Customer in Section 2(a), Komment does not by means of this Agreement or otherwise transfer any other rights to Customer.
b.
Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Application, Customer Environment, Customer Data and Output. Except for the licenses granted to Komment in Section 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to Komment.
c.
Feedback. Customer may provide comments, suggestions and recommendations to Komment with respect to the Komment Assets and aspects thereof (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Komment may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing.
i.
Komment will defend Customer, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, "Customer Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Komment will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, reasonable attorneys’ fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Komment Assets, including Customer’s permitted use thereof, infringes any registered patent, trademark, copyright or misappropriates a trade secret of such third party.
ii.
If Komment becomes, or in Komment opinion is likely to become, the subject of an infringement or misappropriation claim, Komment may, at its option and expense: (a) procure for Customer the right to continue using the Komment Assets (or the component thereof subject of such infringement); (b) replace the Komment Assets (including any component part) with a non-infringing substitute subject to Customer’s prior written approval; or (c) modify the Komment Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, Komment shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c) and refund Customer the pro-rata, unused portion of any prepaid fees.
iii.
Komment will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (a) Customer Data; (b) any unauthorized use, reproduction, or distribution of the Komment Assets or Komment’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; (c) any unauthorized combination of, or modification to, the Komment Assets or Komment’s intellectual property rights, other than as expressly approved by Komment that causes the underlying claim where such claim would have not occurred but for such unauthorized act; (d) any combination of, or modification to, the Komment Assets or Komment’s intellectual property rights, with a Third Party Application where such claim would have not occurred but for such combination or to the extent attributable to the Third Party Application; or (e) continued use of the Komment Assets after Customer has been notified of modifications or substitutes to the extent use of such modifications or substitutes would have prevented the claim.
iv.
Customer’s sole and exclusive remedy and the entire liability of Komment, its officers, directors, employees, shareholders, contractors and representatives, with respect to any and all claims relating to alleged infringement or misappropriation of a third-party’s intellectual property rights, will be pursuant to the indemnification provisions set forth in this Section 11(a).
b.
By Customer. Customer will defend Komment, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, "Komment Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the Komment Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the Komment Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer’s breach of Section 10(b) (Customer Representations & Warranties); or (iii) any allegation by a governmental body that use of Customer Data, as permitted by Komment under this Agreement or at Customer’s request or direction, has violated any applicable law.
c.
Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties’ prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties’ expense, in connection with the defense and settlement of the claim.
12. Limitation on Liability.
a.
NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
b.
EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (AS DEFINED AND FURTHER LIMITED BY SECTION 12(C) BELOW) AND UNCAPPED CLAIMS (DEFINED BELOW), IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE KOMMENT ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
c.
"Excluded Claims" means any claim and/or liability associated with any breach by Komment of Sections 5(b) (DPA), including for clarity with respect to any claim of liability associated with the DPA including the Security Protocols, and 5(c) (Security & Privacy). Komment’s total, cumulative liability for all Excluded Claims will not exceed the greater of (i) $500,000 or (ii) three (3) times the total amount of fees paid by Customer for use of the Komment Assets under this Agreement.
d.
"Uncapped Claims" means any claim or liability associated with: (i) either party’s breach of Section 8 (Confidentiality) but not relating to any liability associated with Komment’s privacy and/or security obligations with respect to Customer Data which remains subject to the Excluded Claims cap; (ii) either party’s respective indemnification obligations under Section 11; or (iii) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, or intentional misconduct.
14.
Miscellaneous. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by both parties. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of Delaware without reference to conflicts of law rules. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in New Castle County, Delaware. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that Komment may assign this Agreement without such consent in connection with an acquisition of Komment or a sale of all or substantially all of its assets. To the extent there is an inconsistency between the terms of the Agreement, Order Form, and DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA.
