SaaS SUBSCRIPTION AND SERVICES AGREEMENT

This Software as a Service (“SaaS”) Subscription and Services Agreement (“Agreement”) is entered into as of the date of the last signature of this Agreement (the “Effective Date”) by and between (CLIENT), (“Subscriber”) and StrategicSource, Inc., (“SSI”).  SSI and Subscriber may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” 

Recitals 

SSI has developed software applications available via the SaaS to enable clients to take advantage of SSI’s analytics and purchasing experience for management of a large supplier base across many categories and user locations. 

Subscriber desires a custom project, white labeling solution, and subscription to the SaaS. 

In furtherance of the foregoing recitals, and for other good and valuable consideration as set forth herein, Subscriber and SSI agree as follows: 

1.       Definitions. In this Agreement, the terms defined in this Section shall have the meanings specified below.  Other terms shall have the meanings defined parenthetically elsewhere in this Agreement.  All such terms apply to both the singular and plural forms.

1.1.     “Confidential Information” means this Agreement (including the Proposal), any Subscriber Data, any Supplier Information, and the Software (including the structure, organization and code (both source code and object code)), together with all information concerning a Party’s business that is treated or designated by such Party as confidential or proprietary, or would reasonably be viewed as confidential to such Party or as having value to such Party’s competitors, including but not limited to, information that reveals inventions, discoveries, concepts, ideas, techniques, processes, designs or specifications by which a Party’s existing and/or future products, services, applications and methods of operation are developed, manufactured, conducted and operated and the means and methods of marketing such products, services, applications and methods of operations, and any and all drawings, diagrams, models, samples, flow charts, computer programs, algorithms, data, finances and plans, customer lists, business plans, contracts, marketing plans, production plans, distribution plans, system implementation plans, business concepts, supplier information, business procedures and business operations.  Confidential Information shall not include information that the other Party can clearly and convincingly demonstrate is Excluded Information.

1.2.     “Downtime” means the period of time when the System or Software is not responding, or does not correctly respond because of: (a) failure or error of the Software; (b) failure of the Host Server, hardware, equipment within the control of SSI or its hosting subcontractor; (c) a failure of the network to which the Host Server is connected, up to the point of connection to the public switched network; or (d) an electric utility failure at the facility hosting the Host Server. Downtime does not include the period of time when the Host Server is not available as a result of (i) scheduled network, hardware or service maintenance and/or upgrades (“Scheduled Downtime”); or (ii) the acts or omissions of Subscriber’s employees, agents, contractors, or vendors, or anyone gaining access to Subscriber’s network by means of Subscriber’s passwords or equipment.

1.3.     “Excluded Information” means information falling within any of the following categories: (a) Information already known to or otherwise in the possession of the Party receiving such information (the “Receiving Party”) from the other Party (the “Disclosing Party”) prior to the time the Disclosing Party disclosed such information to the Receiving Party, or information which is independently discovered after the Effective Date by the Receiving Party without the aid, application or use of, any Confidential Information of the Disclosing Party; (b) Information publicly available or otherwise in the public domain through no fault of or action by the Receiving Party; (c) Information rightfully obtained after the Effective Date by the Receiving Party from any third party which is lawfully in possession of such information and which is provided by such third party without violating any contractual or legal obligation of such third party to the Disclosing Party with respect to such information; or (d) Information approved for release by written authorization of the Disclosing Party.

1.4.     “Phase V Launch Date” means the date agreed to by the Parties, following completion of phases I – IV as identified in the Proposal.

1.5.    “Host Server” means the server(s) on which SSI has the Software installed for access and use as the SaaS.

1.6.     “Permitted Users” means those individuals designated by Subscriber to have access to and use of the SaaS.

1.7.     “Professional Services” means the setup of the Subscriber Portal, training and on-going support provided by SSI as identified in the Proposal and such other services as may be specified in the proposal.

1.8.      “Proposal” means the signed copy of the proposal including the terms and conditions incorporated herein by reference. 

1.9.      “SaaS” means the Software as a Service provided by SSI. 

1.10.   “Software” means the software applications owned by SSI, including any updates or modifications thereto, made available by SSI via the SaaS. 

1.11.   “SSI Services” means the SaaS and Professional Services. 

1.12.   “Subscriber Data” means the data provided by Subscriber to SSI and which is stored on the System. 

1.13.   “Subscriber Portal” means the Internet website set up by SSI for Subscriber to access and use the SaaS. 

1.14.   “Supplier Information” means the supplier contact information and pricing collected by SSI and provided by client. 

1.15.   “System” means the Host Server and all equipment and connections maintained by SSI or SSI’s hosting subcontractor. 

1.16.   “User ID” means a username assigned to a Permitted User of the SaaS. 

2.       Services. 

2.1.      SaaS Services.  Subject to the terms and conditions of this Agreement, SSI hereby grants to Subscriber and Subscriber’s Permitted Users, during the Term, the nonexclusive, non-transferable right to access the System to use the Software.  Subscriber is responsible for its Permitted Users’ compliance with this Agreement.  Upon expiration of the Term or the termination of this Agreement, Subscriber’s and its Permitted User’s right to access the System and use of the Software shall terminate. 

2.2.      Professional Services.  Subject to the terms and conditions of this Agreement, SSI shall perform the Professional Services.  Either Party may request changes to the Professional Services.  In such event, the requesting Party shall provide a written description of the changes and the Parties shall consult and cooperate with each other in good faith to discuss the change and any change in costs, scheduling modifications, hardware or environment requirements, and other implications of the proposed changes.  Any requested change shall be become effective only if made in writing and signed by both Parties (a “Change Order”).  Unless otherwise specified in the Change Order, SSI retains all right, title, and interest in and to any materials or code provided as part of the Professional Services.  Any Change Order shall be deemed incorporated into this Agreement and each such Change Order shall terminate upon completion of the Professional Services as described in that Change Order. 

2.3.      Manner of Performance.  SSI shall determine and shall be solely responsible for, the method, details, and means of performing the Services.  SSI may subcontract the performance of Services under this Agreement; provided that SSI shall remain responsible for the performance of any such subcontracted Services as if performed by SSI. 

3.       Ownership. 

3.1.      Software and Supplier Information.  Subscriber acknowledges and agrees that SSI is and shall remain the exclusive owner of all rights, title and interest in and to the Software, including all copies and derivatives thereof, and all Supplier Information.  SSI may change features or functionality of the SaaS at any time, provided the changes continue to offer the features and functionalities as set forth in the Proposal. 

3.2.      Subscriber Data.  SSI acknowledges and agrees that SSI is and shall remain the exclusive owner of all rights, title and interest in and to the Software, including all copies and derivatives thereof, and all Supplier Information.  Subscriber Data will be backed-up in accordance with SSI’s regular back-up policies and procedures.  Upon termination of this Agreement, provided that Subscriber has fully paid all amounts due to SSI under this Agreement, SSI will electronically transfer the Subscriber Data to Subscriber as mutually agreed by the Parties.  After the termination date, SSI will use reasonable efforts to destroy all such Subscriber Data in its possession or control, except SSI shall not be required to delete copies of Subscriber Data which has been captured by SSI’s electron backup practices, but any such electronic backup files containing any Subscriber Data shall remain subject to the confidentiality and non-disclosure provisions under Section 7 of this Agreement. 

4.       Restrictions.  Access to the System and use of the Software is restricted to the Permitted Users.  Subscriber may use and distribute reports generated by the Software for its internal business purposes, provided that all titles, trademarks, trade names, copyright, restricted rights and other proprietary notices of SSI are retained.  Subscriber shall not: (a) decompile, disassemble, reverse engineer, reverse assemble, or otherwise attempt to discover any of the Software code; (b) copy or transfer electronically the Software or create a derivative works of the Software, in whole or in part (c) remove any proprietary, copyright, trademark, or service mark legend from the Software or otherwise modify the Software or the SaaS, or any part thereof, in any manner or form; (d) use the Software or the SaaS to develop any software or other technology having the same primary function as the Software; (e) sell, transfer, publish, disclose, display, distribute or otherwise make available the Software or the SaaS, or any copies or derivatives thereof, in whole or in part, to any other individual or entity in violation of this Agreement; (f) abuse or misuse the SaaS, including gaining or attempting to gain unauthorized access to the System or the SaaS, or altering or destroying information in the SaaS; (g) use the SaaS in a manner that interferes with other users’ use of the SaaS or the Software. 

5.       Subscriber Responsibilities. 

5.1.      Subscriber Contact.  Subscriber shall appoint one individual and a backup individual (each a “Subscriber Contact”) that shall serve as SSI’s primary contact with Subscriber for all issues pertaining to this Agreement and the Services.  SSI will rely on all oral and written orders and instructions ‎issued by the Subscriber Contact, including without limitation, instructions to setup and remove User ID’s.  Subscriber may select and subscribe individuals as the Subscriber Contact upon written notice to SSI. 

5.2.      Safeguards.  Subscriber will adopt and maintain reasonable and appropriate security precautions for User IDs to prevent their disclosure to or use by unauthorized persons.  Subscriber will; (a) ensure each Permitted User uses a unique User ID when using the SaaS; and (b) immediately contact Subscriber to revoke an individual’s access to the SaaS upon the termination of employment with Subscriber, or upon Subscriber’s withdrawal of authorization for any such individual to access the SaaS.  Subscriber shall be responsible for all activities that occur under the Subscriber’s User IDs. 

5.3.      Cooperation.  Subscriber shall be responsible for: (a) ‎providing trained and competent personnel to reasonably assist SSI in connection with the ‎performance of the Professional Services; (b) providing such materials, items, and information as may be ‎necessary to enable SSI to perform the Professional Services; (c) promptly responding to requests for materials, ‎items, and information made by SSI in connection with the performance of the Professional Services; (d) the ‎accuracy of all information provided by Subscriber; and (e) and ensuring that all electrical and other ‎communications technology connections are present, operating correctly, and appropriate for ‎obtaining the benefit of the SaaS.  SSI shall have no liability or responsibility for any failure of ‎Subscriber to perform any of its obligations, or for any delays in performance by SSI caused by any ‎failure of Subscriber to perform any of its obligations. 

6.       Availability.  SSI guarantees that the SaaS will be available for use at least 99.0% of the time, except for Scheduled Downtime. As Subscriber’s sole and exclusive remedy, if Downtime, other than Scheduled Downtime, falls below the guaranteed level in any calendar month, SSI agrees to credit toward the monthly Subscription FSSI a prorated amount equal to the monthly Subscription FSSIs attributable to such Downtime.  SSI will use commercially reasonable efforts to notify Subscriber at least twenty-four (24) hours in advance of any Scheduled Downtime.  SSI will use reasonable commercial efforts to perform scheduled maintenance outside of Subscriber’s normal business hours to provide the least amount of disruption. 

7.       Confidentiality and Non-Disclosure.  Except as otherwise provided in this Agreement, the Receiving Party may not, without the Disclosing Party’s prior written consent, at any time, during or after the term of this Agreement, directly or indirectly, divulge or disclose the Confidential Information of the Disclosing Party to any third party for any purpose, nor shall the Receiving Party use the Confidential Information of the Disclosing Party for any purpose or benefit of the Receiving Party except in the performance of the Receiving Party’s obligations under this Agreement.  The Receiving Party agrees to hold all Confidential Information of the Disclosing Party in strict confidence and agrees to take all reasonable measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information of the Disclosing Party.  The Parties may disclose Confidential Information only to those of its employees, officers, agents and representatives (collectively “Representatives”) who have a need to know such Confidential Information for the purposes of this Agreement and who are bound by confidentiality obligations consistent with this Section.  Each of the Parties shall inform its Representatives of the confidential nature of Confidential Information and will instruct them to hold the Confidential Information in strict confidence in accordance with the terms of this Agreement.  The Receiving Party shall be responsible for any breaches by the Receiving Party’s Representatives of this Section.  The Receiving Party shall promptly advise the Disclosing Party in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information, which may come to the Receiving Party’s attention.  The Receiving Party acknowledges and agrees that the Disclosing Party will suffer irreparable harm if the Receiving Party fails to comply with its obligations set forth in this Section, and the Receiving Party agrees that monetary damages will be inadequate to compensate the Disclosing Party for any such breach.  The Receiving Party agrees that in addition to other remedies that may be available in law or at equity (including but not limited to an action at law for money damages), the Disclosing Party shall be entitled upon application to a court of competent jurisdiction to an injunction to specifically enforce the terms of this Section.  Notwithstanding any of the foregoing, in the event the Receiving Party receives a valid subpoena or order from a court or other government body to produce all or any part of the Confidential Information of the Disclosing Party, the Receiving Party shall notify the Disclosing Party, in writing, immediately upon receipt of such order or subpoena in order to provide the Disclosing Party an opportunity to seek appropriate protection of the Confidential Information to the extent reasonably practicable.  The Receiving Party shall cooperate fully with the Disclosing Party to resist disclosure of the Confidential Information or to seek appropriate protection of the Confidential Information. 

8.       Payment of Fees and Taxes. 

8.1.      Fees.  Subscriber shall pay all fees and expenses for the Services as identified in the Proposal and any Change Orders.  All fees paid are non-refundable.  Following the Initial Term (as defined Section 9.1), SSI may increase the amount of the monthly fees for the Services for any subsequent Renewal Term (as defined in Section 9.1). 

8.2.      Invoicing.  SSI will invoice Subscriber for the fees and expenses as identified in the Proposal.  All fees and expenses are due within thirty (30) days from the invoice date.  All fees and expenses are payable in U.S. dollars.  Any amounts not paid within thirty (30) days of the invoice date shall be subject to interest charges in the amount of 1.5% per month (or the highest rate permitted by law, if less) from the date due until paid in full. Subscriber agrees to pay all costs (including attorneys’ fees) incurred by SSI in collecting any unpaid fees or expenses. 

8.3.      Taxes.  All fees and expenses are exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes (collectively “Taxes”) now in force or enacted in the future, and Subscriber agrees to pay any such Taxes (excluding taxes on SSI’s net income) that SSI may be required to collect or pay now or at any time in the future.  Applicable Taxes will be invoiced by the SSI to Subscriber unless Subscriber provides SSI a valid applicable tax exemption certificate before the invoice is generated. 

9.     Term; Termination; Suspension. 

9.1.      Term.  This Agreement shall commence on the Effective Date and shall continue for a period of four (4) years following the Phase V Launch Date (the “Initial Term”) unless earlier terminated by either Party for cause pursuant to Section 9.2.  The Agreement shall automatically renew for additional one (1) year periods (each a “Renewal Term”), until the Agreement is terminated pursuant to Section 9.3.  The Initial Term and any subsequent Renewal Term are collectively referred to as the “Term”. 

9.2.      Termination for Cause. 

9.2.1.    By SSI.  SSI may terminate this Agreement if Subscriber is in material breach of this Agreement, including but not limited to failure to fully pay any fees or expenses when due, by issuing a termination notice to Subscriber if Subscriber fails to fully cure the breach within thirty (30) days of SSI issuing to Subscriber a notice of breach.  The termination shall be effective as of the date of the termination notice. 

9.2.2.    By Subscriber.  Subscriber may terminate this Agreement if SSI is in material breach of this Agreement by issuing a termination notice to SSI if Subscriber fails to fully cure the breach within thirty (30) days of Subscriber issuing to SSI a notice of breach.  The termination shall be effective as of the date of the termination notice.  

9.3.      Voluntary Termination. 

9.3.1.    By Mutual Consent.  This Agreement may be terminated at any time and under such terms as the Parties may mutually agrees in writing. 

9.3.2.    By Subscriber.  Subscriber may terminate this Agreement by issuing to SSI a notice of termination not less than sixty (60) days prior to the end of the Initial Term or any subsequent Renewal Term, as applicable.  The termination shall be effective as of the last day of the Initial Term or any subsequent Renewal Term, as applicable.  If the notice of termination is not received at least sixty (60) days prior to the end of the Initial Term or any subsequent Renewal Term, as applicable, the Agreement shall continue until the end of the next Renewal Term.  

9.4.      Suspension of Services.  SSI may suspend its performance of Professional Services or suspend Subscriber’s access to the SaaS pending Subscriber’s cure of any breach of this Agreement, or in the event SSI determines in its sole discretion that access to or use of the SaaS by Subscriber may jeopardize the SaaS or the confidentiality, privacy, security, integrity or availability of information within the SaaS, or that Subscriber has violated or may violate this Agreement, or has jeopardized or may jeopardize the rights of any third party, or that any individual or entity may be making unauthorized use of the SaaS with any User ID.  SSI’s election to suspend the Services shall not waive or affect its rights to terminate this Agreement as permitted under this Agreement. 

9.5.      Effect of Termination.  The termination of this Agreement shall not affect SSI’s entitlement to payment of all undisputed amounts for Services provided to Subscriber prior to termination of this Agreement.  Upon termination of this Agreement, Subscriber’s rights to access the System and use the Software shall immediately terminate.  SSI shall have no obligation to refund amounts paid by Subscriber.  

10.     Warranties and Representations; Warranty Disclaimers.  Each of the Parties represents and warrants to the other Party that it has the power and authority to enter into this Agreement and that the individual signing this Agreement on behalf of such Party has the full legal authority to bind such Party to this Agreement.  SSI represents and warrants that: (a) the Professional Services performed under this Agreement will be performed in a professional and workman-like manner in accordance with normally accepted industry standards, and with a degree of care, skill and expertise as is standard for the provision of services of a similar nature; and (b) that the Software and System will perform substantially in accordance with the Proposal.  EXCEPT AS OTHERWISE PROVIDED HEREIN, SSI MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF FITNESS, PURPOSE, OR MERCHANTABILITY, OR OF THE ACCURACY OF RESULTS OBTAINED THROUGH SUBSCRIBER’S USE OF THE SOFTWARE, SUPPLIER INFORMATION AND/OR SYSTEM.  SUBSCRIBER ACKNOWLEDGES THAT ANY INFORMATION OR REPORT GENERATED, OBTAINED OR ACQUIRED THROUGH THE USE OF THE SOFTWARE AND/OR SYSTEM IS USED AT SUBSCRIBER’S SOLE RISK AND DISCRETION.  SSI IS NOT LIABLE OR RESPONSIBLE FOR ANY RESULTS GENERATED THROUGH THE USE OF THE SOFTWARE OR SYSTEM.  SSI DOES NOT WARRANT OR REPRESENT THAT ACCESS TO THE SOFTWARE OR SYSTEM WILL BE UNINTERRUPTED, ERROR FRSSI OR SECURE.  OPERATION OF THE SYSTEM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF SSI’S CONTROL. 

11.     LIMITATION OF LIABILITY.  AGGREGATE LIABILITY FOR ALL CLAIMS ARISING FROM THIS AGREEMENT, REGARDLESS OF THE NATURE OF SUCH CLAIM, SHALL NOT EXCEED THE TOTAL FSSIS ACTUALLY PAID BY SUBSCRIBER UNDER THIS AGREEMENT FOR THE ONE (1) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM.  SSI SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY, AND EVEN IF SSI HAS BSSIN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BSSIN REASONABLY FORESSSIN BY SSI. SUBSCRIBER AGREES THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  SUBSCRIBER ACKNOWLEDGES THAT SSI HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT AND THAT THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. 

12.     Indemnification. Subscriber shall indemnify, defend, and hold harmless SSI and its affiliates, including their respective Representatives, and other users of the SaaS, from and against any claim, cost or liability, including reasonable attorneys’ fees, arising out of: (a) the use of the SaaS by Subscriber; (b) any breach by Subscriber of any representations, warranties or obligations contained in this Agreement; (c) the actions of any third party gaining access to the SaaS under a User ID assigned to Subscriber; and (d) Subscriber’s negligent or willful misconduct. 

13.     Choice of Law; Jurisdiction.  This Agreement shall be governed by the laws of the State of Minnesota, without giving effect to its conflicts of law principles.  For the purpose of resolving conflicts related to or arising out of this Agreement, the Parties expressly agrees and consent to the exclusive jurisdiction of, and venue in, the federal and state courts in Hennepin County, Minnesota. 

14.     Survival.   The provisions of this Agreement, which, by their terms, require performance after the termination of this Agreement, or have application to events that may occur after the termination of this Agreement, shall survive the termination of this Agreement. 

15.     No Assignment.  This Agreement may not be assigned or transferred by Subscriber without the SSI’s prior written consent.  SSI may assign this Agreement to a third party acquiring all or substantially all of the assets of SSI on notice to Subscriber.  This Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties. 

16.     Force Majeure.  Neither Party shall be in breach of this Agreement in the event a Party is unable to perform its obligations under this Agreement as a result of natural disaster, war, emergency conditions, labor strife, the substantial inoperability of the Internet, the inability to obtain supplies, or other reasons or conditions beyond their reasonable control; provided, however, if such reasons or conditions remain in effect for a period of more than sixty (60) days, either Party may terminate this Agreement without further liability to the other Party upon written notice to such other Party. 

17.     Severability.  In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever the validity or enforceability of the remainder of this Agreement. 

18.     Nature of Relationship.  Nothing contained in this Agreement should be defined to constitute either Party being an agent, representative, partner, joint venture or employee of the other Party for any purpose.  Neither Party has the authority to bind the other or to incur any liability on behalf of the other, nor to direct the employees of the other. 

19.     Notices.  All notices required or contemplated by this Agreement shall be in writing. Notices from SSI to Subscriber may be delivered by means of electronic mail to Subscriber’s e-mail address on record in Subscriber’s account information, or by nationally recognized overnight delivery service to Subscriber’s address on record in Subscriber’s account information.  Such notices to Subscriber shall be deemed to have been given and received when delivered personally or on the next business day if sent by email or two (2) business days after being deposited with the nationally recognized overnight delivery service.  Notices from Subscriber to SSI shall be delivered by a nationally recognized overnight delivery service and such notices to SSI shall be deemed to have been given and received when delivered personally or two (2) business days after being deposited with the nationally recognized overnight delivery service and addressed to:  Attn: Douglas Austin, CEO. 

StrategicSource, Inc.., 10812 Nesbitt Ave. S., Bloomington, MN 55437. 

20.     Waiver.  The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless made in writing.  Any waiver by either Party of any provision or the breach of any provision of this Agreement shall not operate as or be construed to be a continuing waiver of the provision or the breach of the provision. 

21.     No Third-Party Beneficiaries.  Nothing expressed or implied in this Agreement is intended to confer, nor shall confer, upon any person or entity other than the Parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever. 

22.     Counterparts and Exchange by Email or Fax.  This Agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  The exchange of a fully executed Agreement (in counterparts or otherwise) by email or fax shall be sufficient to bind the Parties to the terms and conditions of this Agreement. 

23.     Entire Agreement.  This Agreement constitutes the complete and exclusive understanding and agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to the subject matter hereof. Except as otherwise provided in this Agreement, no amendments shall be valid unless made in writing and signed by the Parties to this Agreement.