MEDIA PUBLICATION AGREEMENT & TERMS AND CONDITIONS
The following Media Publication agreement (“the Agreement”), together with any and all applicable Acceptable Use Policies (“AUP” and together with the Terms and Conditions, the “Agreement”), set forth the terms and conditions which shall govern the relationship between Apptness Media Group, LLC, its affiliates and subsidiaries (collectively "Company") and you as a publisher ("You" or ”Publisher”) using the advertising service (the “Service”) offered through Apptness Media Group LLC
Apptness reserves the right to make changes to the Site, the Service and the Agreement at any time and without prior notification. The latest Agreement will be posted on the Site. Your continued use of the Site and/or the Service after any such modification thereof shall constitute Your consent to such modification. Therefore, You should regularly check the Site for updates and/or changes. For purposes of the Agreement “Publisher” includes the individual, company or entity and, without limitation, any parent entities, owners, subsidiaries, publishers, predecessor or successor entities, and any agents, officers, directors or employees acting on behalf of same, registering with Apptness to use the Service. If You do not agree to the Terms and Conditions in its entirety, You are not authorized to: (a) register as a Publisher; (b) use the Service; and/or (c) use the Site, in any manner or form whatsoever.
WHEREAS, Publisher wishes to acquire Company’s approval and license to access all or a portion of the Campaigns and applicable content (“Program Materials”) to render Services, as described below;
WHEREAS, Company desires to grant approval to Publisher and to license all or a portion of the Program Materials to Publisher pursuant to the terms and conditions of this Agreement and any issued Insertion Order (“IO”).
NOW, THEREFORE, in consideration of the premises set forth above and the mutual promises and terms and conditions stated herein, the parties hereto agree as follows:
• Action: Shall be defined as set forth in an IO
• Advertiser: A company that places advertisements on Company owned and maintained websites or provides Campaign(s) and/or Offers to Company for goods or services.
• Affiliate Network or CPA Network: Includes any and all affiliates or sub-publishers used by Publisher to perform the Services under this Agreement, but not limited to, any intermediate party between a Publisher affiliate program and Company Campaigns.
• Campaign(s): Advertising for goods or services typically broadcast through one or more media channels and directed at one or more segments of a population.
• Click: Defined when a person clicks on a Campaign, as recorded by Company’s server, as defined in Company’s sole discretion.
• CPL: Defined as a campaign for which Publisher shall be paid for each unique and valid lead that meets the requirements set forth in the IO, delivered to Company on a Cost Per Lead basis.
• CPA: Defined as a Campaign for which Publisher shall be paid for Unique and Valid Registrations on a Cost per Action basis.
• CPC: Defined as a Campaign for which Publisher shall be paid on a Cost per Click basis (as defined by Company).
• CPM: Defined as a Campaign for which the Publisher is paid on the basis of impression, or cost per thousand.
• Established Rate: The CPA, CPM, CPC, Revenue Share or other rate at which a Publisher is paid for Services, as defined in an IO or otherwise agreed by the Parties in writing.
• Offers: Advertising content provided by Advertiser(s) to Company for goods or services.
• Program Materials: All content, material and intellectual property developed and/or maintained by Company, including, but not limited to, Offers, payouts, creative types, Campaigns, banners, text links, tracking links, suppression files, landing pages, HTML enabled email creatives, text email creatives, email subject lines, email From lines and all other content and material developed and/or maintained by Company to allow for Company to perform Company Services
• Publisher: The company that has executed this Agreement, including its affiliates or sub-publishers that may be used to perform the Services.
• Revenue Share: Defined as a percentage of the revenue generated from the Campaign less direct costs incurred by Company.
• Unique Registration: Defined as a user who is not already a member of or registered with a Campaign.
• Valid Registration: Defined as a Unique Registration that provides complete, valid information as required by an Advertiser.
1. Services. Publisher shall render media publication services ("Services") as set forth in an IO to this Agreement for each Campaign defined therein. The manner and means by which Publisher chooses to complete the Services are in Publisher's sole discretion and control, subject to the terms and conditions of this Agreement, and Publisher shall be responsible for providing the Services in accordance with this Agreement. Publisher shall only use Program Materials provided by Company. Publisher shall not alter, edit or supplement any Program Materials in any way without the prior written approval of Company, prior to rendering Services. Likewise, any alternative creative content created by Publisher (“Alternative Content”) must be approved in writing by Company prior to rendering Services with such content. Unless otherwise stated in any IO, Publisher agrees that any approved edited or supplemented Program Material or Alternative Content approved by Company will become the property of Company and are “works for hire” under the US Copyright Act. Publisher hereby irrevocably assigns to Company and waives all rights, title and interest worldwide in and to all approved edited or supplemented Program Material or Alternative Content. To the extent reasonably required, and upon the request of Company, Publisher shall cooperate during or after performance of Services with Company for the retaining, obtaining or maintaining of such rights, including but not limited to the execution of any reasonably required documentation. If indicated in any IO that Publisher shall own any approved edited or supplemented Program Material or Alternative Content, then Publisher grants Company an assignable, exclusive, worldwide license to copy, display, publish, modify, perform, distribute and sell the edited or supplemented Program Material or Alternative Content.
2. Payment. Company will pay Publisher by check for Services rendered hereunder as set forth in an IO. Unless otherwise agreed, standard payment terms are as follows: Company will pay Publisher at the Established Rate, as defined in the applicable IO, for all Unique and Valid Registrations accepted by Company as reported by Company within 30 days after the end of the month in which payment accrued. Company will provide either: (i) Web-based, password-protected real-time reporting; and/or (ii) manual reporting at a frequency to be determined by Company. Reporting will include Advertiser-level or Offer-level lead data as set forth in the IO. Publisher agrees to provide to Company a W-9, W-8 or Tax Identification Number for proper tax reporting of payments. Publisher is responsible for updating and providing all contact information in a timely fashion. Company shall be excused from making any payments if such information is not provided, not provided upon request, or is incorrect. In the event Publisher breaches this Agreement or an IO, Company reserves the right to suspend or cancel Publisher’s account, in its sole discretion, and to withhold any and all payments. Company retains the right to audit Publisher’s books and records for the purpose of verifying lead data, compliance with this Agreement and any IO and ensuring that no fraudulent activity has taken place. The audit shall be conducted at Company’s expense unless the audit reveals that Publisher has violated the terms of this Agreement, an IO or otherwise committed fraud, in which case, Publisher shall bear the costs of the audit..
3. Confidentiality. While performing Services for Company, confidential information about Company's or third parties’ businesses ("Confidential Information") may be disclosed to Publisher. Confidential Information includes, without limitation, the terms and conditions of this Agreement or any IO, Company's or third parties’ Program Materials or Offers, payments and pay structure, login and password, if applicable, business plans, partnership/affiliation arrangements, Company’s clients, financing arrangements, technical data, and financial data. In addition, Confidential Information may include information concerning any of Company’s or Advertiser’s past, current, or possible future products or methods. Confidential Information does not include (i) information which Publisher shows is or becomes generally known by the public other than as a result of a disclosure by Publisher, (ii) information which Publisher can show was known by Publisher prior to performance of Services and was not first disclosed to Publisher by Company, or (iii) information which Publisher can show was independently developed by Publisher without the participation of individuals who have had access to Confidential Information. Publisher shall not disclose, in any form, oral, electronic or paper, Confidential Information by any means to any third party, and Publisher shall only use Confidential Information for the purposes of performance of Services pursuant to this Agreement. Publisher’s duties of non-disclosure and non-use shall continue during the term of this Agreement and for a period of five (5) years thereafter. Publisher agrees to disclose the identity and contact information of any affiliate or sub-publisher suspected of breach of this Agreement to Company. Additionally, Publisher agrees to the disclosure of its contact information to any third party if reasonably required, in Company’s sole discretion, to defend itself in any legal matter. After the termination of this Agreement and upon the request of Company, Publisher shall have fifteen (15) days to certify in writing that all copies of Confidential Information, in any whole or partial form, have been destroyed or returned, or used solely as directed by Company.
4. Data Ownership/Consumer Data. Company retains sole and exclusive ownership and rights to all data, including all consumer data, identifiable as related to Company, as a result of, used in, collected through, or related to any Program Materials, Offer(s), customer Registration(s), suppression file or Campaign (“Consumer Data”). Publisher acknowledges that all data, including, without limitation, all Consumer Data, and their structure, organization, methods, concepts and techniques constitute valuable Confidential Information of Company. Company and its licensors retain and reserve exclusive ownership of all worldwide copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the Program Materials, customer Registrations, Offers and Campaign(s), including any derivative works, modifications, customizations, updates, or enhancements.
5. Data Qualification and Integrity. Company shall only pay Publisher for Unique and Valid Registrations as defined herein unless otherwise set forth in an IO. Publisher understands and agrees that Publisher and any affiliate, and sub-publisher shall only submit Unique and Valid Registrations. Upon payment for such Unique and Valid Registrations, Company shall have no further obligation to Publisher. Company and/or its Advertisers, in their sole discretion, shall have the right to market and re-market the person(s) and or data generated by Publisher pursuant to this Agreement, without further obligation to Publisher.
Company will not pay or compensate Publisher in any way for leads or acquisitions that have been received and rejected by an Advertiser for any reason, including but not limited to duplicates, invalid data, incomplete data, or fraudulent data, or for registrations, leads or acquisitions that have been determined by Company, in Company’s sole discretion, to have been generated or procured through the use of any Prohibited Conduct, to be duplicates, invalid, incomplete or fraudulent, or for any registrations, leads or acquisitions which do not meet the criteria agreed to in an IO. In the event that Publisher has already received payment for such registrations, leads or acquisitions, Company reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher. Without diminishing any other rights or obligations of either Party herein, Publisher acknowledges that if it receives notice that fraudulent activities or Prohibited Conduct may be occurring on Publisher’s sites(s) or related media, and Publisher does not take any actions to stop the fraudulent activities or Prohibited Conduct, then Publisher will be solely responsible for all associated costs and legal fees resulting from these fraudulent activities or Prohibited Conduct.
6. Prohibited Conduct. Company does not permit and has a zero tolerance policy for Prohibited Conduct by any Publisher or any of Publisher’s affiliates and/or sub-publishers. Publisher or any of Publisher’s affiliates, or sub-publishers caught engaging in Prohibited Conduct may be immediately terminated by Company, and are subject to forfeiture of any monies due, legal action by Company and any other recourse in Company’s sole and absolute discretion. “Prohibited Conduct” includes, but is not limited to, the following:
(a) Performing Services using SMS or Text Messaging campaigns.
(b) Performing Services through email marketing without complying with any and all applicable laws and regulations, including, without limitation, the CAN-SPAM Act of 2003 and/or any applicable state or international laws pertaining to the dissemination of emails.
(c) Performing Services through email marketing using “multi-advertiser” email content without written approval of Company.
(d) Performing Services using edited or supplemented Program Materials or Alternative Content without the written approval of Company.
(e) Performing Services (i) that are not in compliance with an existing IO; (ii) that are flagged as fraudulent; (iii) through anonymous proxy or VPN servers, bots, automated scripts or zombie networks; (iv) through lead stuffing; (v) by incentivizing consumers with cash, rewards, points, prizes, or content locking unless otherwise agreed in the IO; (vi) through spyware, adware, hacking, warez, phishing, smishing, cracking, instant messaging, phreaking, telemarketing, via facsimile, click fraud, unsolicited commercial email, illegal downloads of any kind; or (vii) any other activity generally understood to be abusive in the sole discretion of Company.
(f) Performing Services through any illegal act or by way of deceptive practices, including violating the intellectual property, proprietary or publicity rights of a third party.
(g) Performing Services that result in fraudulent transactions with Company’s Advertisers.
(h) Performing Services by stating or implying, directly or indirectly, that a consumer is already a Winner of, or has Won, or in any way state or imply, directly or indirectly, that the Company Campaign or Offers is in any way related to food stamps, government assistance or work/job assistance.
(i) Place any Program Materials on websites with no content, or that promote, link to, reference, mention, condone or contain profanity, sexually explicit material, hate material, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, family status or any other material deemed to be obscene or otherwise harmful to the reputation of Company or its Advertisers, as determined in Company’s sole discretion.
(k) Attempting in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Company website tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure performance and provide its services.
(l) Performing Services that can or will negatively impact the reputation or goodwill of Company, in Company’s sole discretion.
Company shall be allowed to report all known and/or suspected prohibited conduct to interested parties. Publisher agrees that Company shall not be liable for the consequences of such reports and acknowledges that it shall be in Company’s sole discretion to determine whether or not prohibited conduct has occurred or is suspected. Furthermore, Publisher, on behalf of itself and any affiliate and/or sub-publisher(s) it may use in performance hereunder agrees to indemnify and hold Company and its officers, directors, members, shareholders, employees, contractors, representatives, agents, successors and assigns harmless from and against all direct and indirect costs, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and costs, attributable to any such reports.
8. TELEMARKETING 8 (a) The provisions of this Section 8 are applicable only if: (i) the IO specifies that the Leads include telephone numbers of consumers who have provided their “prior express written consent” (as that term is defined in 47 CFR §64.1200(f)(8); a “TCPA Consent”) to be called/contacted by or on behalf of the advertiser (“Consenting Users”), or (ii) the IO specifies a drive-to-site campaign where the marketing partner will be seeking to obtain TCPA Consent so it may make outbound telemarketing calls to Consenting Users. Notwithstanding the foregoing, the parties acknowledge and agree that they intend for all Leads to be from consumers who have provided TCPA Consent and that Marketer is the Responsible Party (as that term is defined below), unless the IO specifies otherwise.
8. (b) The TCPA Consent obtained by the party responsible for securing such consent (“Responsible Party”) shall contain all of the elements set forth in 47 CFR §64.1200(f)(8) which specifically includes the name of the party(ies) on whose behalf a Consenting Consumer may be called and/or, where applicable, contacted via SMS messaging (each, “marketing partner”). If the IO provides that Consenting Users may be contacted via SMS messaging, the TCPA Consent shall include appropriate language required under the Mobile Marketing Association U.S. Consumer Best Practices for Messaging (“MMA Best Practices”). The Responsible Party shall maintain or cause to be maintained records (“TCPA Records”) of the TCPA Consents obtained from each Consenting User including the date and time stamp when the TCPA Consent was obtained, IP address/device ID of the Consenting User, URL for the TCPA Consent form and the contents of the TCPA Consent including the advertiser name, and such other information and/or documentation that is reasonably necessary to prove in a regulatory or judicial proceeding or in discussions that could reasonably be expected to predate such a proceeding that the Responsible Party secured legally sufficient TCPA Consent from the Consenting User to permit TCPA compliant telemarketing calls and/or contact via SMS messaging, where applicable, by or on behalf of the marketing partner to such Consenting User. The Responsible Party shall maintain the TCPA Records for at least 7 years and shall provide such TCPA Records to the requesting party as soon as practicable but no later than 10 days after its written request therefor. The Responsible Party is solely responsible for all costs associated with acquiring and maintaining the TCPA Records.
8. (c) Marketer will submit to Company for its prior review all advertisements and components and elements thereof, including banner ads, emails including the body, header and subject lines, ad copy, contextual ads and/or other content, that Marketer uses to obtain TCPA Consent (the “TCPA Creative”). Marketer will not use TCPA Creative unless and until it is approved by Company in advance. Marketer shall not modify approved TCPA Creative unless the modification is also approved by Company in advance
9. Remedies. Publisher recognizes that a breach of Sections 6 or 7 could result in immediate, extraordinary and irreparable damage to Company and/or its Advertisers and that such damages may be difficult to measure. Accordingly, Publisher agrees that should it violate these provisions, Company may in addition to other legal remedies, terminate this Agreement immediately without pay and assess liquidated damages of up to $1,000.00 per occurrence of each such violation. Publisher further agrees that such liquidated damages are reasonable and do not constitute a penalty.
10. Indemnification. Publisher, on behalf of itself and any affiliate and/or sub-publisher(s) it may use in performance hereunder agrees to indemnify and hold Company and its officers, directors, members, shareholders, employees, contractors, representatives, agents, successors and assigns harmless from and against all direct and indirect costs, losses, damages, liabilities and expenses, including reasonable attorneys’ fees and costs, attributable to: (a) any claim made by a third party arising out of the Services; (b) any claim arising out of the acts or omissions of any affiliate, sub-publisher or any third party that Publisher employs hereunder; (c) any claim made by a third party arising out of Publisher’s failure to uphold any of its obligations set forth in this Agreement; (d) Publisher’s breach of this Agreement, including, without limitation, any of Publisher’s representations or warranties as set forth in this Agreement and/or any subsequently issued Insertion Order; and/or (e) any unauthorized use, alterations or editing of the Program Materials or Alternative Content.
11. Termination. Company may terminate this Agreement, or any Campaign, upon one (1) business days’ notice, with or without cause, and upon termination, Publisher shall immediately cease all performance of Services or such Campaign, and notify its affiliates, and/or sub-publishers immediately, as applicable, to do the same upon receipt of notice. Each IO shall terminate on the End Date unless terminated sooner in accordance with the terms of this Agreement or as set forth in such applicable IO. If termination by Company is without cause, then Publisher shall be paid for all approved and accepted Services performed through notice of termination. Publisher shall not alter the rate or delivery of a Campaign after its receipt of notice of termination. Publisher will not be paid for any Campaign after effective termination. Publisher may terminate this Agreement for material breach and failure to cure by Company with five (5) business days’ prior written notice, or without cause at the end of completion of Services. The term of this Agreement shall begin upon the Effective Date and terminate when all Services have been completed and accepted. Unless otherwise stated in this Agreement, any obligations which by their nature are to continue after termination or expiration shall survive and remain in effect for a period of one year after such happening, including without limitation, sections 6,7,8,9,10,11,12 and 14. Any breach of this Agreement by Publisher or Publisher’s affiliate, or sub-publisher may result in immediate termination at the discretion of Company. Without waiver of this right, Company may choose to first issue a warning; followed by a second warning and credits for the last 15 days resulting in non-payment for any amounts earned in the prior 15 day period; and then termination from Company’s program.
12. Disclaimer of Warranty. Company makes no warranties, guarantees, or representations regarding the revenue or profit the Publisher can make from the Company Campaign. Company makes no guarantees or representations regarding any information contained in any Program Materials or oral communications made by any Company or Advertiser representative, employee, or publisher. Publisher assures that it has not relied upon any oral or written information provided by Company. Publisher acknowledges that the success of the Services is very much in the hands of the Publisher to promote and expose its website to generate sufficient traffic to its site and/or advertisements to generate sales, leads and/or Registrations in accordance with this Agreement.
13. LIMITATION OF LIABILITY. THE COMPANY SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE ANY CAMPAIGN, PRGRAM MATERIALS, ADVERTISER PRODUCTS AND/OR SERVICES, OR ANY OF ITS SITES (INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). IN ADDITION, COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF COMPANY SITES WILL BE UNINTERRUPTED OR ERROR-FREE, AND COMPANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. IN NO EVENT SHALL COMPANY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, FOR ANY LOSS OF PROFITS, REVENUE, DATA OR SERVICES, ARISING IN CONNECTION WITH THIS AGREEMENT, THE COMPAIGN, THE PROGRAM MATERIALS OR ANY ADVERTISER PRODUCT, OFFER OR SERVICES, REGARDLESS OR WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. FURTHER, UNDER NO CIRCUMSTANCES, REGARDLESS OF THE BASIS OF THE CLAIM, SHALL COMPANY’S LIABILITY EXCEED THE AMOUNT PAID TO PUBLISHER IN THE THREE MONTHS PRIOR TO NOTICE OF SUCH CLAIM STATED IN THE APPLICABLE IO SIGNED BY COMPANY.
14. Company Services. Publisher understands and agrees that from time to time Company’s websites and services hereunder may be inaccessible, unavailable or inoperable for any reason, including, without limitation, (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. While Company will attempt to provide the services on a continuous basis, Publisher acknowledges and agrees that Company has no control over the availability of the services on a continuous or uninterrupted basis. Publisher also understands and agrees that Company is not responsible for the functionality of any third-party website or interface. Terms of this Agreement are subject to Company hardware, software, and bandwidth traffic limitations. Company’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of this Agreement.
15. General Matters.
15.1 Each Party is an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship between the parties. Publisher is not the agent of Company or Advertiser and is not authorized to make any representation, contract, or commitment on behalf of Company or Advertiser.
15.2 Neither party will be liable to the other by reason of its failure to perform or delay in the performance of its obligations hereunder as a result of any causes or conditions which are beyond such party’s reasonable control and which such party is unable to overcome by the exercise of reasonable diligence, including, but not limited to, Acts of God, fires, storms, wars, governmental action, labor conditions and/or strikes, insurrections, earthquakes, natural disasters, and interruption in internet service. Furthermore, neither party will be liable to the other by reason of its failure to perform or delay in the performance of its obligations hereunder to the extent that federal, state or local legislative, judicial, administrative or other governmental action prohibit, impair, inhibit or frustrate any activity contemplated pursuant to this Agreement or the performance of a party’s services. In the event the foregoing occurs, Company may terminate this Agreement effective upon written notification to Publisher.
15.3 This Agreement and any dispute arising hereunder shall be construed in accordance with the laws of the State of Florida without regard to principles of conflict of laws. Furthermore, it is understood that this Agreement shall be treated as though it were executed in Palm Beach county, FL, and to have been performed in the same. Each party unequivocally consents to the personal jurisdiction of the state and federal courts located in Palm Beach county, FL, and that any action relating to this Agreement shall be instituted and prosecuted in the courts located in Palm Beach County, FL. Should a dispute relating to this Agreement arise between the parties, prior to either party instituting any suit or action in an appropriate court as set forth above, the dispute shall be referred by each party to an officer/manager of its respective company with authority to settle the dispute who shall meet in good faith in an attempt to resolve the dispute.
15.4 If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as to best accomplish the objectives of such unenforceable provision within the limits of applicable law.
15.5 Any waiver of a provision of this Agreement must be in writing and signed by the party to be charged. A valid waiver hereunder shall not be interpreted to be a waiver of that obligation in the future or any other obligation under this Agreement.
15.6 All notices relating to this Agreement must be made to the e-mail or physical address listed on Publisher’s account or to the physical address of Company listed above, or to the physical address designated through notice by either party. And, if to Company, with a copy to: 1600 S Federal Hwy Suite 203, Pompano Beach, FL, 33062 Attn: Legal Department.
15.7 Publisher may not assign this Agreement or performance of Services hereunder without the written consent of Company, and any such attempt without the written consent of Company shall be void.
15.8 This Agreement, together with each IO referencing this Agreement, constitutes the entire understanding and agreement between the parties relating to the subject matter thereof and supersedes any prior or contemporaneous agreement between the parties relating to the performance of work under any IO. If any terms in the IO conflict with the terms of this Agreement, the terms of this Agreement shall supersede the IO unless expressly agreed to in the IO, for that engagement only. This Agreement will not be governed by the U.N. Convention on the International Sale of Goods, the application of which is expressly excluded.