Last Update: May 6, 2019
Unless otherwise specified in this Agreement, capitalized terms used in this Agreement shall have the meanings set forth in this Section 1.
“Annual Record Retention and Audit Support” allows for private and confidential information to be stored and secured throughout the duration of this agreement. This information is kept in electronic, digital format, and is secured through administrative, physical and technical protections and accessible only by authorized persons. The data is encrypted and prevents unauthorized users from opening the files and reading the contents. There are two types of encryption that are utilized to protect the privacy of the I-9 Record at rest and in transit. All I-9 records are stored and maintained for the length of time the law requires and support provided for ICE, DOJ, IER, and E-Verify audits.
“Authorized I-9 Representative(s)” includes up to two (2) Users who have been designated by you to contact Tracker’s technical support for routine questions and issues regarding the Software.
“Confidential Information” means all non-public or proprietary information in any form or medium furnished by or on behalf of either Party (the “Disclosing Party”) on, before or after the Effective Date, whether furnished in writing, electronically, orally, visually, or learned of by the other Party (the “Receiving Party”) in performance of its obligations of this Agreement, related to the business and operations of the Disclosing Party or its affiliates/subsidiaries which to a reasonable person would be considered confidential or proprietary, or that is identified as confidential or proprietary (including, without limitation, information related to strategic plans, marketing plans, products, customers, contracts, members, suppliers, employees, pricing, costs, business process and practices, financial data, accounting and financial practices, audit reports, technology, manufacturing processes and practices, equipment, equipment configurations, product formulas, distribution methods, or trade secrets of the Disclosing Party or its affiliates/subsidiaries, or any other non-public or proprietary information relating to the Disclosing Party or its affiliates). Any notes, summaries, reports, analyses, or other material derived by the Receiving Party in whole or in part from the Confidential Information of the Disclosing Party shall also be considered Confidential Information under this Agreement. User Data shall be considered Confidential Information of Client.
“Force Majeure Event” means an event or circumstance beyond the reasonable control of either Party, including, but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer failures involving hardware or software not within Tracker’s possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks).
“Go-Live Date” means the latter of (a) the effective date of an Order Form or (b) the date you begin using the Software in a commercial manner.
“New I-9 Record” means any I-9 record created in the system where Section 1 has been signed even though Section 2 may not have been completed.
“Order Form” means one or more documents issued pursuant to this Agreement by Tracker (and executed by the Parties) specifying, among other things, the Software and any other Services you seek to obtain from Tracker, the number of New and/or Historical I-9 records to be purchased, the setup and annual fees, and the applicable Subscription Period.
“Overages” means any New I-9 Records created in the system within an annual timeframe that exceeds the annual subscription license volume specified on the order form. New I-9 Record volumes will be reviewed quarterly and excess New I-9 Records created will be invoiced in all quarters following their occurrence.
“Remote Hire Network” means a network of trained Authorized Representatives who are available for you to delegate the authority to complete Section 2 on your behalf. These services are provided by a subcontractor and are not employees of Tracker. Liability associated with the compliant completion of the I-9 remains with you as the employer.
“Services” means all services to be provided to you (and/or your affiliates/subsidiaries) pursuant to one or more Order Forms.
“Software” means the proprietary Tracker I-9 employment verification and E-verify web services component, Tracker I-9 Resolve and any Third Party Products identified on an Order Form.
“Subscription Period” means the period(s) during which a specified number of Users (which may be unlimited) are licensed to use the Software pursuant to this Agreement and the applicable Order Form(s).
“Third Party Products” means the third party software products listed on an Order Form.
“User(s)” means your (or your affiliates/subsidiaries) employees, representatives, consultants, contractors or agents who are authorized by you to use the Software and who have been given login credentials by you.
“User Account(s)” means the unique User identification name(s) and password(s) needed to access and setup Tracker I-9 users.
“User Data” means any data or information you (or your Users) provide, upload or disclose to Tracker in the course of using the Software.
“Work Product” means (collectively) all deliverables, assessments, reports, discoveries, inventions, developments, documents, works of authorship, writings, drawings, designs, data, specifications, formulae, manuals, processes, programs, software, web-based applications and any related improvements or modifications to the foregoing, which with respect to all of the foregoing are conceived, created or otherwise developed by us (alone or with others) for you pursuant to any of the Services provided to you under this Agreement or an Order Form.
Tracker agrees to provide the Software and Services identified on Order Forms. You may place orders for additional subscriptions to use the Software at Tracker’s then-current fees. All Order Forms are subject to the terms and conditions of this Agreement. This Agreement is a non-exclusive agreement, and both parties remain free to enter into similar agreements with third parties.
3. Software and Services
3.1 Grant of User Accounts. Subject to the terms of this Agreement, Tracker grants to you and your affiliates/subsidiaries a non-transferable (except as provided for herein), non-exclusive, non-sublicensable right to access and use the Software on a worldwide basis during the Subscription Period for up to the number of User Accounts described in each Order Form. User Accounts may not be shared or used by more than one (1) User but may be reassigned from time to time for any reason to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Software. You are responsible for the User Accounts, including any passwords issued under this Agreement. You must comply with the procedures specified by Tracker from time to time in writing to you regarding obtaining and updating User Accounts and passwords. You must use commercially reasonable efforts to prevent any third party from using a User Account or obtaining a password. You will inform Tracker immediately of any actual or potential unauthorized access that you become aware of to a User Account, password, or to the Software.
3.2 Data and Security. Tracker shall use commercially reasonable efforts to (a) maintain the security of the Software; (b) make the Software generally available 24/7 (24 hours a day, 7 days a week) in a manner which minimizes errors and interruptions in the Software, except for: (i) planned down time, which shall be any period outside of the hours of 6:00 am to 9:00 pm PST Monday through Friday; or (ii) down time of the Software caused by a Force Majeure Event or emergency maintenance . You are solely responsible for providing, at your own expense, all equipment needed to connect to, access or otherwise use the Software, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Software. All User Data will be transmitted and stored via secure channels Tracker shall employ the highest industry-standard security, firewall and virus protection technology to safeguard (1) User Data transmitted or stored on its servers and (2) the Software. You are responsible for the accuracy, quality, legality, completeness and use by you of User Data that is stored on the Tracker servers. Tracker shall maintain appropriate technical and organizational measures to protect User Data against alteration, destruction, damage, unauthorized disclosure and/or loss and will be responsible and liable to you for its acts or omissions that result in the alteration, destruction, damage, unauthorized disclosure, loss or failure to store any User Data. Tracker will not be responsible or liable to you for your acts or omissions that result in the alteration, destruction, damage, unauthorized disclosure, loss or failure to store any User Data. If User Data is lost or damaged, Tracker, at its expense, will assist Client in restoring such User Data to its servers. Tracker may view or access individual records from time to time solely for the purpose of resolving a problem, support issue, or suspected violation of this Agreement, or as may be required by law.
3.3 Training. We provide Administrative Training sessions using your telephone and a computer with internet access at no charge. You may purchase end-user basic training and/or custom training services at Tracker’s then-current fees. Allow two weeks’ notice to schedule on-site training. You agree that prior to using the Software, your Administrative Users shall attend at least one (1) of Tracker’s Basic Training sessions for the Software. Tracker will have no obligation to provide the Software unless and until you or at least one (1) of your Users attends such Basic Training.
3.4 Technical Support and Maintenance. Tracker will provide standard technical support and maintenance to Authorized I-9 Representatives between the hours of 6:30 a.m. and 5:30 p.m. Pacific Time, Monday through Friday, excluding national holidays in the United States of America. Authorized user may contact support at (877) 875-7911. Outside of these hours, a Software desk will answer all calls and escalate emergency technical support incidents to our on-call technical support staff. Tracker is not obligated to provide technical support to you if the Software fails to perform because of any of the following reasons: (a) your misuse of the Software, including manipulation of the data or data entry error; (b) a Force Majeure Event; (c) system or network failure of E-Verify web services or the E-Verify website; or (d) problems related to networks, operating systems, hardware, printers, or the SQL or Access database software.
3.5 E-Verify web services. If you elect to participate in E-Verify, you must register online with the Department of Homeland Security (DHS) for an E-Verify account and sign a Memorandum of Understanding (MOU), which provides the terms of agreement between you, the Employer (if different), the Social Security Administration, and the DHS. You are responsible for observing all terms and conditions specified in the MOU.
4. Limitations on Use
You, your affiliates/subsidiaries and your Users may use the Software only as intended by Tracker and as indicated (or permitted) by this Agreement and instructions and other materials provided during training or through Tracker’s website. You agree not to violate any local, state, federal or foreign law, treaty, regulation or convention (including those related to employment verification, anti-discriminatory hiring practices, data privacy, international communications and the transmission of technical or personal data) applicable in connection with your use of the Software. You will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the Software; (b) rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify or timeshare the Software or any portion thereof without a separate written agreement with Tracker; (c) interfere in any manner with the operation of the Software, or the hardware and network used to operate the Software; (d) modify, copy or make derivative works based on any part of the Software; or (e) create Internet “links” to or from the Software or any content which forms part of the Software (other than your own internal intranets).
5. Fees and Payments
The Software fees described in the Order Form include annual fees for the subscription to the Software, initial set up and configuration services, annual record retention and audit support for a pre-determined number of electronic New I-9 Records, technical support and maintenance, and any other Services that you have purchased from Tracker (collectively, the “Fees”). There are no other fees for the Software and/or the Services except as provided for in an Order Form. Unless explicitly provided for in an Order Form, Client is not responsible to Tracker for any reimbursable expense under this Agreement. Tracker will invoice you for all Fees in accordance with the Order Form and You agree to pay Tracker for the undisputed Fees described in such invoice in U.S. Dollars within thirty (30) days of the invoice date, unless another timeframe is specified in the Order Form. If payment is not made when due, a late payment charge of one percent (1%) per month (or the highest amount allowed by law, whichever is lower) may be added to your bill and immediately become due and payable. Your access to the Software may be deactivated without further notice if initial or future payments become past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your Software account.
6. Intellectual Property Rights
6.1 Notwithstanding anything to the contrary in this Agreement, nothing shall limit, restrict or impair either party’s ownership of, or other rights to, any materials, data or intellectual property that existed prior to the execution of this Agreement or that was developed or acquired independent of it (“Pre-existing Property”). A Party’s Pre-existing Property shall include, without limitation, all records, documents, programming specifications, diagrams, source code, object code, documentation, and/or Confidential Information that was developed or acquired prior to or independent of this Agreement. For the avoidance of doubt, and except for any license granted in this Agreement, all right, title and interest in and to (a) the Software (including any corrections, updates, adaptations, enhancements thereto or copies thereof), (b) the Third Party Products and (c) Tracker’s Pre-existing Property are and shall remain exclusively with Tracker.
7. Limited Warranty
If you notify Tracker in writing within thirty (30) days of the Go Live Date that you are not satisfied with the Software for any reason and/or you do not accept the Software, Tracker will refund the Fees paid for the Software (except for any fees for set up and configuration) and, at your sole option, this Agreement and/or the applicable Order Form shall automatically terminate (the “Limited Warranty”). This represents Tracker’s total liability and your sole remedy with respect to the Limited Warranty.
8. Representations and Warranties
In addition to the Limited Warranty, Tracker represents, warrants and covenants that:
(a) all Services will be performed in a timely, professional and workmanlike manner in accordance with generally accepted industry practices and standards;
(b) it has the corporate power and authority (and any required licenses or permits) to enter into, and perform its obligations under, this Agreement and any applicable Order Form;
(c) any Services (including, any resultant Work Product) and the Software (or any portion thereof) does not (and will not) infringe or misappropriate the patent, copyright, trademark, trade secret, intellectual property rights or other proprietary rights of any third party;
(d) it will comply with all local, state, federal or foreign law, treaty, regulation or convention (including those related to employment verification, anti-discriminatory hiring practices, data privacy, international communications and the transmission of technical or personal data) applicable in connection with the provision of any Services (including, any resultant Work Product) and/or the Software under this Agreement and any applicable Order Form; and
(e) it has suitable and adequate candidate screening and security procedures, and that it will perform background and reference checks on all employees performing the Services under any Order Form.
Except as provided for herein (or in an applicable Order Form), Tracker makes no other representations or warranties, express or implied (including, but not limited to, implied warranties of merchantability, and fitness for a particular purpose), with respect to any use of the Software described herein and to the maximum extent permitted by applicable law, Tracker disclaims all other representations and warranties. You acknowledge and agree that you are not relying on Tracker or its Software to provide any legal advice whatsoever, including without limitation, as to electronic signatures, employment eligibility verification, E-Verification or E-Verify Designated Agent duties, records maintenance or other laws. The Software may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Tracker is not responsible for any delays, delivery failures, or other damage resulting solely from such problems. Except as provided for herein (or in an applicable Order Form), Tracker does not guarantee that the Software will perform error-free or uninterrupted or that it will correct all Software errors.
10. LIMITATION OF LIABILITY
THE PARTIES AGREE THAT EXCEPT FOR LIABILITY ARISING OR RESULTING FROM (A) BODILY INJURY TO A PERSON; (B) TRACKER’S DEFENSE AND INDEMNIFICATION OBLIGATIONS IN SECTION 11; OR (C) EITHER PARTY’S MISAPPROPRIATION OR UNAUTHORIZED DISCLOSURE OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION IN BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT OR AN APPLICABLE ORDER FORM:
10.1 In no event shall either Party (and their respective officers, directors, affiliates/subsidiaries, representatives, and employees) be liable to the other Party for any special, indirect, consequential, punitive, exemplary or incidental damages whatsoever (including, without limitation, damages for loss of business profits, OR business interruption) arising out of this Agreement or any applicable Order Form, whether foreseeable or unforeseeable and even if such Party has been advised of the possibility of such damages; and
10.2 Each Party’s (and their respective officers, directors, affiliates/subsidiaries, representatives and employees) entire and aggregate liability to the other Party for any and all claims under any provision of this Agreement (or any applicable Order Form) shall be limited to OnE (1) time the amount of the subscription fee actually paid (or due and payable) by you for the Software and any Services during the twelve (12) month period immediately preceding the events giving rise to such claims.
Tracker agrees to defend, indemnify and hold you, your affiliates/subsidiaries and your (and their) respective officers, directors, employees and agents harmless from and against any and all claims, losses, liabilities and expenses (including reasonable attorneys’ fees), whether or not litigation is commenced, arising under or relating to any one or more of the following:
(a) any breach of Section 8(c);
(b) personal injury (including death) or loss or damage to tangible personal or real property resulting from the acts or omissions of Tracker, its employees, or agents;
(c) any breach of Tracker’s confidentiality obligations contained in this Agreement or an applicable Order Form; or
(d) any breach of Section 8(d).
This Agreement begins on the Effective Date and continues until terminated in accordance with Section 13 herein. Each Order Form will commence on the effective date indicated therein and shall continue for the Subscription Period set forth therein. Unless otherwise provided for in an Order Form, Subscription Periods within an Order Form automatically renew for successive equal periods at Tracker current rates not to exceed 5% above prior rates, unless either you or Tracker provides the other Party notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Unless otherwise agreed to by the Parties in writing, the terms and conditions applicable to any renewal term will be the same as those in effect for the immediately preceding portion of the Subscription Period or any applicable renewal term. Termination or expiration of any Order Form shall not modify the term of this Agreement or any other Order Form.
13.1 You or Tracker may terminate this Agreement at any time after the completion of the current term outlined in an Order Form (as long as no other Order Forms exist hereunder with a current term remaining) by giving the other Party sixty (60) days prior written notice of its intent to do so.
13.2 You or Tracker may terminate this Agreement or an Order Form (a) upon thirty (30) days written notice of a material breach of this Agreement or an Order Form if the breach is not cured within such thirty (30) day period or (b) immediately upon written notice, should the other Party: (i) make a general assignment for the benefit of creditors; (ii) institute proceedings, or have proceedings instituted against it, seeking relief or reorganization under any laws relating to bankruptcy or insolvency; or (iii) have a court of competent jurisdiction appoint a receiver, liquidator, or trustee over all or substantially all of such Party’s property or provide for the liquidation of such Party’s property or business affairs.. Additionally, you may terminate this Agreement or an Order Form immediately upon written notice to Tracker if Tracker is relying upon a Force Majeure Event for non-performance of its obligations under this Agreement and such Force Majeure Event continues for more than thirty (30) days.
14. Confidential Information; Publicity
14.1 The Parties acknowledge that by reason of their relationship under this Agreement, they may have access to and acquire Confidential Information of the other Party. Each Party agrees that, in the event a Party is exposed to the other Party’s Confidential Information, the Receiving Party shall:
(a) protect Confidential Information from unauthorized disclosure using commercially reasonable care, but in any case, not less than the efforts such Party uses to protect its own Confidential Information;
(b) will not disclose Confidential Information to any third-party (except for such authorized agents and contractors that a Party uses to perform the Services or provide the Software, and who are subject to confidentiality obligations at least as protective as those contained in this Agreement); and
(c) will not use Confidential Information other than as reasonably necessary (i) to (with respect to Tracker) perform under this Agreement or (ii) for (with respect to you) receipt of the Software and any Services.
14.2 Notwithstanding Section 14.1 (and except as provided for herein), the obligations set forth in Section 14.1 shall not apply to Confidential Information which: (a) is or becomes a matter of public knowledge through no breach of this Agreement or an applicable Order Form by the Receiving Party (provided that this exception shall not be interpreted in any manner to limit the confidential nature of User Data); (b) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party without an obligation of confidentiality to the Disclosing Party; (c) subsequent to disclosure, is rightfully obtained by the Receiving Party from a third party who is lawfully in possession of such Confidential Information without restriction; (d) is independently developed by the Receiving Party without resort to the Confidential Information; or (e) is required by applicable law or judicial order to be disclosed, provided that the Receiving Party shall give the Disclosing Party prompt written notice of such required disclosure in order to afford the Disclosing Party an opportunity to seek a protective order or other legal remedy to prevent the disclosure, and shall reasonably cooperate with the Disclosing Party’s efforts to secure such a protective order or other legal remedy to prevent the disclosure.
14.3 Promptly upon discovery of any unauthorized intentional, unintentional, or accidental disclosure of the Confidential Information of Client, Tracker shall notify Client in writing. The notice shall contain a description of the Confidential Information disclosed, the approximate date of disclosure, the party receiving the disclosure and the circumstances surrounding such disclosure. In the event of the foregoing, Tracker shall immediately: (a) investigate such disclosure and (b) inform Client of the results of such investigation, including, but not limited to, the cause (technical vulnerability or process failure) of the disclosure, steps taken to remediate the cause of the disclosure and any future actions that may be taken to ensure that the disclosure does not occur again.
14.4 CONFIDENTIAL INFORMATION OF CLIENT IS PROVIDED “AS IS” AND CLIENT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14.5 Any and all press releases and other public announcements relating to the existence or terms of this Agreement or the related transactions between Tracker and Client must be approved in advance by the Parties in writing.
14.6 The Receiving Party acknowledges that any unauthorized disclosure or use of Confidential Information of the Disclosing Party may cause the Disclosing Party imminent irreparable injury and that the Disclosing Party shall be entitled to, in addition to any other remedies available at law or in equity, seek temporary, preliminary, and permanent injunctive relief in the event the Receiving Party does not fulfill its obligations under this Section 14.
During the term of this Agreement, Tracker shall, at its sole cost and expense, procure, pay for, and keep in full force and effect, the following types of insurance:
Worker’s Compensation and Employer’s Liability. Policy limit is $1,000,000 per accident for bodily injury and $1,000,000 per employee/aggregate for disease.
Commercial General Liability. Policy limits of $1,000,000 per occurrence combined single limit and $2,000,000 annual aggregate extend to cover: (a) Contractual Liability assumed by Tracker under the Agreement (b) Broad Form Property Damage Liability, (c) Products & Completed Operations; and (d) Personal Injury & Advertisers Liability.
Errors and Omissions/ Cyber Liability. Policy limit of $5,000,000 per claim and annual aggregate, covering all acts, errors, omissions, negligence, and including infringement of intellectual property rights in the performance of services for or on your behalf hereunder. Such policy shall include, but not be limited to, network risk/cyber coverage (including coverage for unauthorized access, failure of security, theft of funds, breach of privacy perils, as well as notification costs and regulatory defense).
Automobile Liability. Policy limit $1,000,000 Combined single limit each accident).
Umbrella Liability. Policy limit of $10,000,000 each occurrence/aggregate.
16. General Terms
16.1 All Order Forms, attachments, additions, and revisions are incorporated into this Agreement (and references to this Agreement in Section 16, except for Section 16.12, shall include any applicable Order Forms).
16.2 Neither Party may assign or transfer this Agreement or any obligations hereunder, by operation of law or otherwise, to any third party without the other Party’s prior written consent (which shall not be unreasonably withheld); provided, however, that, upon written notice, a Party may assign or transfer this Agreement or any obligations hereunder to an entity acquiring all or substantially all of the assets of that Party, whether by acquisition of assets or shares, or by merger or consolidation. Any assignment in violation of the foregoing shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties.
16.3 This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions. Any legal proceeding or other action in connection with this Agreement shall be brought exclusively in the state or federal courts located in the State of California, and each Party accepts and submits to the exclusive jurisdiction and venue of any such court and provided that the tribunal or adjudicator permits any party or witness to attend via audio or video conference. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
16.4 This Agreement constitutes the complete understanding and agreement between Tracker and you with respect to the Software and any Services ordered hereunder and supersedes any prior (or contemporaneous) understanding or agreement, oral or written, relating thereto. Provisions of any purchase order, invoice or other documents either Party submits shall not be binding on the other Party and are hereby superseded by the terms of this Agreement.
16.5 If any provision of this Agreement shall be held illegal or unenforceable by a court of competent jurisdiction, that provision shall be limited or eliminated to the minimum extent necessary so that the other provisions of this Agreement shall otherwise remain in full force and effect, and enforceable.
16.6 Any modification, amendment or waiver of this Agreement must be in writing signed by authorized representatives of both Parties. Neither Party will waive any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder.
16.7 All notices, demands or other communications hereunder shall be in writing and shall be delivered, sent by mail, registered or certified, return receipt requested, postage prepaid, and addressed to the Parties at the addresses set forth on page 1 hereto.
16.8 The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, joint venture, or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. Except as provided for in this Agreement, each Party shall bear its own costs and expenses in performing under this Agreement.
16.9 No provisions of this Agreement are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party.
16.10 All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law or in equity.
16.11 This Agreement may be executed by facsimile and in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. The section headings in this Agreement are for convenience of reference only and will not be given effect to interpret or construe any of the provisions of this Agreement.
16.12 In the event of a conflict between this Agreement and any Order Form, the terms of this Agreement shall govern unless the Order Form specifically and expressly states the specific provision of this Agreement that it wishes to prevail over and/or supersede.