Please, read the following terms carefully
1.1 “Agent” means Spyderbat’s local client agent for use with the Platform. An agent or “nano agent” (client software) is installed on compatible Linux based systems, to collect relevant data and forward it securely to the Platform.
1.2 “Agreement” means, collectively, the Order Form, these Terms, and any other exhibits or addenda attached to the Order Form.
1.3 “Customer Data” means all data, information, policies, or other content uploaded or provided by Customer to the Agent, Platform or Services. Customer Data does not include any component of the Agent, Platform or Services, or material provided by or on behalf of Spyderbat.
1.4 “Documentation” means any user manuals or other documentation provided or made available by Spyderbat to Customer under the Agreement.
1.5 “Effective Date” has the meaning given in the applicable Order Form.
1.6 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights (including rights in audiovisual works and moral rights), trademark rights, trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction
1.7 “Order Form” means the ordering document executed between Spyderbat and Customer through which these Terms are referenced.
1.8 “Platform” means Spyderbat’s proprietary cloud-based cyber-attack tracing and intercept solution, as further described in the Order Form, with a cloud-hosted backend that security analysts can interact with using a standard web browser.
1.9 “Spyderbat Technology” means, individually or together, the Agent, the Platform, the Documentation, and any other software, technology or data provided by Spyderbat to Customer, and includes any Updates to the foregoing.
1.10 “Services” has the meaning set forth in Section 3.1.
1.11 “Third Party Technology” means any software, code, algorithms, processes, methods, inventions, or other technology which is not owned by Spyderbat.
1.12 “Updates” means any update, upgrade, enhancement, new version, new feature or functionality, change, or other modification to the Agent, the Platform or any other Spyderbat Technology.
1.13 “Work Product” means any Intellectual Property Rights or technology developed by Spyderbat in connection with Spyderbat’s provision of the Services to Customer.
2. GRANTS AND RESTRICTIONS
2.1 Grant of Rights to Platform. Spyderbat hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in accordance with Section 13.5), royalty-free right to use and access the Platform during the Term and solely in accordance with the limitations in the Agreement. The Platform includes only those features and modules specified in the Order Form. From time-to-time during the Term, Spyderbat may provide Updates to the Platform, and those Updates will then be considered part of the “Platform” for purposes of the Agreement.
2.2 Grant of Rights to Agent. Spyderbat hereby grants Customer a non-exclusive, non-transferable (except in accordance with Section 13.5), royalty-free right and license to download, install and use the Agent during the Term and solely in accordance with the limitations in the Agreement. The Agent includes only those features and modules specified in the Order Form. Updates to the Agent may be provided by Spyderbat from time to time. Unless otherwise agreed in writing by the Parties, the Agent may only be installed on Customer systems.
2.3 License to Documentation. Subject to the terms and conditions of the Agreement, Spyderbat hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license during the Term of the Agreement to use, copy, and reproduce Documentation as reasonably necessary to support Customer’s authorized use of the Platform and the Agent.
2.4 Restrictions. Other than as expressly authorized in the Agreement, the rights and licenses granted to Customer in this Section 2 do not include any right to, and Customer will not: (a) modify, translate, or create a derivative work of any portion of the Agent or the Platform or any other Spyderbat Technology; (b) sell, lease, loan, provide, distribute or otherwise transfer any portion of the Spyderbat Technology to any third party; (c) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of Spyderbat Technology; (d) display or disclose any portion of the Agent or the Platform to any person except to Customer’s employees and contractors (as authorized under Section 2.6) who are required to use the Agent or the Platform; (e) remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Agent or the Platform; (f) attempt to subvert or defeat any security measure or technical safeguard on the Agent or the Platform; or (g) cause or permit any third party to do any of the foregoing.
2.5 Suspension or Termination of Services. Spyderbat may suspend, terminate, or otherwise deny Customer’s access to or use of all or any part of the Agent or the Platform, without incurring any resulting obligation or liability, if: (a) Spyderbat receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Spyderbat to do so; or (b) Spyderbat believes, in its good faith and reasonable discretion, that: (i) Customer has failed to comply with any material term of the Agreement, or accessed or used the Agent or the Platform beyond the scope of the rights granted or for a purpose not authorized under the Agreement; (ii) Customer is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with the Agent or the Platform; or (iii) the Agreement expires or is terminated. This Section 2.5 does not limit any of Spyderbat's other rights or remedies, whether at law, in equity, or under the Agreement.
2.6 Contractors. Customer may allow third party contractors to access and use the Agent and the Platform, if: (a) that contractor’s use is solely on behalf of Customer; and (b) that contractor agrees to be bound by terms at least as restrictive as the Agreement. Customer is solely responsible for any act of a contractor that, if undertaken by Customer, would be a breach of the Agreement.
2.7 Feedback. If Customer provides any feedback to Spyderbat concerning the functionality and performance of any portion of Spyderbat Technology (including identifying potential errors and improvements), Customer hereby assigns to Spyderbat all right, title, and interest in and to the feedback, and Spyderbat is free to use the feedback without payment or restriction.
2.8 Reservation of Rights. All rights not expressly granted in the Agreement are reserved. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by implication, estoppel or otherwise.
3. SERVICES AND SUPPORT
3.1 Services. Subject to Customer’s compliance with the terms and conditions of the Agreement, Spyderbat will use its commercially reasonable efforts to provide Customer with the integration, training, and other professional services purchased by Customer in the Order Form (the “Services”). All Services will be performed in accordance with the applicable Order Form or a written statement of work (“SOW”) attached to the applicable Order Form. The Services do not include the development of any technology or software or Intellectual Property Rights for or on behalf of Customer. Customer acknowledges and agrees that any development of new software or technology for Customer will be subject to a separate written development agreement between the Parties.
3.2 Support. Spyderbat will provide Customer with reasonable technical support and assistance related to the Services during the Term. Customer may notify Spyderbat of support requests at any time via email, Slack channel, or the Spyderbat Platform. Spyderbat will assist Customer in addressing and correcting the issue or problem during the hours of 9am – 5pm Central Time Monday through Friday, excluding U.S. federal holidays.
4. INTELLECTUAL PROPERTY
4.1 Spyderbat Property. All right, title, and interest in and to the Spyderbat Technology, including all Intellectual Property Rights, are and will remain the sole and exclusive property of Spyderbat and its licensors. Except for the limited licenses and rights expressly granted in Section 2 and Section 3, nothing herein grants to Customer, or should be construed to grant to Customer, any right, title, or interest, including Intellectual Property Rights, in or to Spyderbat Technology.
4.2 Work Product. All right, title, and interest, including Intellectual Property Rights, in and to Work Product (excluding any Customer Data embedded in that Work Product) is and will remain the sole and exclusive property of Spyderbat and is deemed Spyderbat Technology for purposes of the Agreement. Nothing in the Agreement transfers, or should be construed to transfer, any right, title or interest, including Intellectual Property Rights, in Work Product to Customer.
5. TERM AND TERMINATION
5.1 Term. Unless otherwise noted on the Order Form, these Terms are effective beginning on the Effective Date and, unless earlier terminated in accordance with the Agreement, will continue for a period of one year (the “Initial Term”) and thereafter automatically renew for successive one year periods (each a “Renewal Term”, and together with the Initial Term the “Term”), unless either Party provides at least 60 days prior written notice of its intent not to renew prior to the expiration of the Initial Term or then-current Renewal Term.
5.2 Termination for Convenience. Spyderbat may terminate the Agreement with or without cause upon 90 days’ written notice to Customer.
5.3 Termination for Cause. Either Party may terminate the Agreement effective immediately if the other Party is in material breach of the Agreement and such breach is not cured within 30 days of the breaching Party receiving written notice of that breach from the non-breaching Party.
5.4 Post-Termination Obligations. If the Agreement is terminated for any reason: (a) Customer will pay to Spyderbat any Fees (as defined below) or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; and (c) Customer will immediately cease all use of the Agent and the Platform, Documentation, and other Spyderbat Technology.
5.5 Survival. Upon termination of these Terms, Sections 2.4, 2.7, 2.8, 4, 5.4, 5.5, 6, 7.3, 8, 9, 10, 11, 12, and 13 will survive.
6.1 Fees. Customer’s use of the Agent, the Platform and Services provided by Spyderbat is subject to the fees set forth in the Order Form, as well as any additional services fees and expenses set forth in a SOW (collectively, the “Fees”). All amounts payable under this Agreement are denominated in United States dollars, will be paid in United States dollars, and are non-refundable.
6.2 Late Fees and Setoffs. Unless otherwise specified in the Order Form, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Spyderbat to collect any amount that is not paid when due. Amounts due from Customer under the Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
6.3 Taxes. Other than net income taxes imposed on Spyderbat, Customer will bear all taxes, duties, and other governmental charges resulting from the Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Spyderbat after all such taxes are paid are equal to the amounts that Spyderbat would have been entitled to in accordance with the Agreement as if the taxes did not exist.
7. REPRESENTATIONS AND DISCLAIMERS OF WARRANTY
7.1 Mutual Warranties. Each Party represents and warrants to the other that: (a) the Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party entering into or performing under the Agreement.
7.2 Customer Warranties. Customer represents and warrant to Spyderbat that: (a) Customer has obtained and will maintain all necessary rights, consents, and authorizations for Spyderbat to process Customer Data in accordance with the terms of the Agreement; and (b) Customer’s use of the Spyderbat Technology will be in compliance with all applicable laws, regulations, and statutes.
7.3 GENERAL DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7, SPYDERBAT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. SPYDERBAT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. SPYDERBAT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SPYDERBAT TECHNOLOGY. SPYDERBAT DOES NOT WARRANT THAT THE SPYDERBAT TECHNOLOGY IS ERROR-FREE OR THAT OPERATION OF THE AGENT AND PLATFORM WILL BE SECURE OR UNINTERRUPTED. SPYDERBAT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SPYDERBAT TECHNOLOGY IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SPYDERBAT TECHNOLOGY WILL ALWAYS BE AVAILABLE.
8. LIMITATION OF LIABILITY.
8.1 Disclaimer of Indirect Damages. EXCEPT FOR LIABILITIES ARISING FROM (A) A PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY, (B) CUSTOMER’S BREACH OF ITS WARRANTIES IN SECTION 7, (C) CUSTOMER’S INFRINGEMENT OF SPYDERBAT’S INTELLECTUAL PROPERTY RIGHTS, OR (D) CUSTOMER’S VIOLATION OF SECTION 11 (CONFIDENTIALITY); (COLLECTIVELY, THE “EXCLUDED LIABILITIES”), NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCE, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THAT PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2 Cap on Liability. EXCEPT FOR THE EXCLUDED LIABILITIES, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SPYDERBAT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
8.3 Independent Allocations of Risk. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SPYDERBAT TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 8.3 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THE AGREEMENT.
9. INTELLECTUAL PROPERTY INFRINGEMENT
9.1 Defense of Infringement Claims. Spyderbat will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of Spyderbat Technology infringes or misappropriates any third party U.S. Intellectual Property Right during the Term of the Agreement if: (a) Customer gives Spyderbat prompt written notice of the Claim; (b) Customer grants Spyderbat full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Spyderbat may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim without Spyderbat’s prior written consent. Customer will have the right to participate in the defense of the Claim at Customer’s own expense and with counsel of Customer’s own choosing, but Spyderbat will have sole control over the defense and settlement of the Claim.
9.2 Indemnification of Infringement Claims. Spyderbat will indemnify Customer from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Spyderbat’s consent after Spyderbat has accepted defense of the Claim); and (c) all amounts that Spyderbat agrees to pay to any third party to settle any Claim under Section 9.1.
9.3 Exclusions from Obligations. Spyderbat will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon: (a) use of the Agent, Platform or any other Spyderbat Technology in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any Third Party Technology; (c) use of any Spyderbat Technology by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Spyderbat Technology in accordance with instructions provided by Spyderbat, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Spyderbat Technology not made or authorized in writing by Spyderbat where such infringement or misappropriation would not have occurred absent such modification.
9.4 Limited Remedy. This Section 9 states Spyderbat’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party Intellectual Property Right by the Spyderbat Technology.
10. CUSTOMER INDEMNIFICATION
10.1 Defense. Customer will defend Spyderbat from any actual or threatened third party Claim arising out of or based upon (a) Customer’s use of the Agent or Platform (except to the extent Spyderbat is required to indemnify Customer for such Claim under Section 9); (b) Customer Data; or (c) Customer’s breach of any of the provisions of the Agreement. Spyderbat will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing. Customer will not settle any claim or acquiesce to any judgment imposing any non-monetary liability on Spyderbat without Spyderbat’s prior written consent.
10.2 Indemnification. Customer will indemnify Spyderbat from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Spyderbat in any Claim under Section 10.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Spyderbat in connection with the defense of a Claim under Section 10.1; and, (c) all amounts that Customer agrees to pay to any third party to settle any Claim under Section 10.1.
11.1 Definition. “Confidential Information” means any information disclosed by either Party to the other Party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents, prototypes, samples, and equipment), that is designated by the disclosing Party as confidential or proprietary, that reasonably appears to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential between business parties, including customer, product, financial, and strategic information. “Confidential Information” may also include information disclosed to the disclosing Party by third parties. Confidential Information will not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party, as shown by the receiving Party’s files and records; (iv) is obtained by the receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.
11.2 Non-Use and Non-Disclosure. Neither Party will use any Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under the Agreement. Neither Party will disclose any Confidential Information of the other Party to third parties or to that Party’s employees, except to those employees of the receiving Party with a need to know. Neither Party will reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects which embody the other Party’s Confidential Information and which are provided to the Party hereunder. A Party may disclose the other Party’s Confidential Information if required by law so long as the receiving Party gives the disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
11.3 Maintenance of Confidentiality. Each Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its employees who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to those employees. Neither Party will make any copies of the Confidential Information of the other Party unless the same are authorized under the Agreement or previously approved in writing by the other Party. Each Party will reproduce the other Party’s proprietary rights notices on any approved copies, in the same manner in which those notices were set forth in or on the original.
11.4 Return of Materials. Upon the termination of the Agreement, each Party will deliver to the other Party all of the other Party’s Confidential Information that it may have in its possession or control.
11.5 Remedies. Each Party acknowledges that any violation or threatened violation of the Agreement may cause irreparable injury to the other Party, entitling the other Party to seek injunctive relief in addition to all legal remedies.
12. CUSTOMER DATA
12.1 Ownership and Security. As between Spyderbat and Customer, Customer Data is and will remain owned by Customer. Customer hereby grants to Spyderbat the right to process, transmit, store, use or disclose Customer Data to provide the Agent, the Platform and Services to Customer and as otherwise set forth in the Agreement. Spyderbat will use commercial reasonable technical, physical, and administrative measures designed to protect the security and integrity of any Customer Data within its possession or control.
12.2 Analytics Data. Customer agrees that Spyderbat my process, transmit, store, use, create, and disclose aggregated and/or deidentified data derived from the use of the Agent, the Platform, Services, or Customer Data (“Analytics Data”) for its business purposes, including for data analysis, benchmarking, technical support, and product development purposes. All Analytics Data will be in an aggregated and/or deidentified form only and will not identify Customer.
13.1 No Partnership, Joint Venture or Franchise. The Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
13.2 Use of Name. Subject to Customer’s prior written consent (which may be given by e-mail), Spyderbat may use Customer’s name and logo, but not any of its other trademarks, on its website and in its client lists for the sole purpose of identifying Customer as a customer of Spyderbat.
13.3 Notices. All notices in connection with the Agreement will be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mail, postage prepaid, certified or registered, return receipt requested, and addressed either to Customer or to Spyderbat at the addresses specified in the applicable Order Form, or to such other address as a Party may designate pursuant to this notice provision.
13.4 Governing Law. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Texas without reference to its choice of law rules that would result in the application of the laws of another jurisdiction. The Parties agree that any dispute arising from the Agreement will be heard exclusively in the state or federal courts located in Travis County Texas and irrevocably submit to that jurisdiction and venue.
13.5 Assignability. The Agreement may not be assigned or otherwise transferred by either Party, in whole or in part, without the prior written consent of the other Party, except that Spyderbat may assign the Agreement in connection with a merger, acquisition, change of control, or sale of all or substantially all of its assets or stock. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of this Section 13.5 is null and void.
13.6 Waiver. The waiver by either Party of any breach of any provision of these Terms does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of that Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
13.7 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
13.8 Construction. If any part of the Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of t the his Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Customer under the Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Failure by a Party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision.
13.9 Updates to Terms. These Terms may be updated at any time by Spyderbat, provided that the version of these Terms in effect at the time of execution of any Order Form will continue to apply to that Order Form. Execution of any new Order Forms will be subject to the revised Terms.
13.10 Entire Agreement. The Agreement is the final and complete expression of the agreement between the Parties regarding the subject matter of the Agreement. In the event of any conflict between the Terms and an Order Form, these Terms will control unless the Order Form specifically identifies the section of these Terms that is to be superseded. These Terms supersede all previous oral and written communications regarding these matters, all of which are merged into these Terms, except that these Terms do not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to the Effective Date of these Terms . The Agreement will not be modified except by a written agreement dated subsequent to the Effective Date of these Terms and signed on behalf of Customer and Spyderbat by their respective duly authorized representatives. Any additional terms and conditions on Customer’s purchase order, invoice, or other Customer document will be of no effect and are expressly superseded by these Terms.