These Master Terms are incorporated into the Agreement between Magnite and Customer. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Agreement.
DEFINITIONS. The definitions for certain terms used in this Agreement are set forth below; other terms are defined elsewhere in the Agreement.
“Advertisement” or “Ads” means materials or messages in any format, including, without limitation, banner ads, sponsored links, textual, interactive, and audio or video messages that promote the Advertiser’s listings, content, products, or services.
“Ad Quality Guidelines” means the guidelines set forth at https://www.magnite.com/legal/ad-quality-guidelines/ (for the sake of clarity, all rights and obligations of Buyers apply equally to Customer under such guidelines).
“Advertiser(s)” mean the entit(ies) on whose behalf the Authorized User uses the Magnite Platform. For purposes of clarity, the Customer may be an Advertiser.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Applicable Laws” means any applicable national, federal, foreign, state, and local laws, rules, and regulations and/or self-regulatory guidelines, including, without limitation, those related to advertising, the Internet, privacy, telemarketing, and unfair business practices and which shall include for the avoidance of doubt the California Consumer Privacy Act (“CCPA”), European Union Regulation 2016/679 (“GDPR”), the GDPR as incorporated into United Kingdom law pursuant to section 3 of the European Union (Withdrawal Act) 2018 (“UK GDPR”), any implementation of the European Union Directive 2002/58/EC (as modified by Directive 2009/136/EC), and any replacement legislation for any of the foregoing.
“Authorized User” means an employee or contractor of Customer (or a Customer Affiliate) who is authorized by Customer to access the Magnite Platform in accordance with Customer’s rights and obligations under this Agreement.
“End User” means an individual who is exposed to the Advertisements inserted into the Inventory purchased through the Magnite Platform.
“Fees” means the total fees payable by Customer to Magnite in conjunction with its use of the Magnite Platform, which includes (i) the amount that Customer owes to an Inventory Source for a Transaction, with such amount collected by Magnite on behalf of such Inventory Source, and (ii) the amounts owed to Magnite by such Customer as consideration for the use of one or more Magnite Services, as set forth in the Agreement or any subsequent amendment or addendum.
“Inventory” means digital advertising inventory, including, without limitation, web, mobile, application, and/or native text advertising inventory available for purchase by Customer through the Magnite Platform.
“Inventory Source” means an ad exchange, network, or other seller of Inventory who makes Inventory available for purchase via the Magnite Platform.
“Magnite Data” means all data that Customer collects through or as a result of its use of the Magnite Platform or otherwise under this Agreement, including any data Customer collects following the purchase of a particular impression or unit of Inventory.
“Magnite Materials” means the Magnite Service(s), the Magnite Platform, the Magnite Data, and any proprietary or confidential technology, documentation or materials of Magnite, including any developments, modifications, enhancements, amendments, and upgrades thereto, and all derivatives thereof: (i) made accessible to Customer or (ii) made accessible to third parties by Customer or at Customer’s request in accordance with and as permitted by the terms of the Agreement.
“Magnite Platform” means the proprietary Magnite platform made available to Customer pursuant to this Agreement for bidding on and buying Inventory, as well as serving and measuring Advertisements.
“Magnite Service” means any product, feature, offering, or service made available to Customer by Magnite pursuant to this Agreement.
“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs, including code that is intended to or has the effect of misappropriating, commandeering, or disrupting access to or use or operation of any information, device, or system.
“Personal Information” means any information relating to an identified or identifiable natural person, including (but not limited to) IP addess, device identifiers, and other persistent identifiers. For the purposes of this Agreement, Personal Information expressly excludes an individual’s name, postal addresses, e-mail addresse(s), social security numbers, driver’s license or identification card numbers, account numbers, credit card or debit card numbers, medical information, and any information that permanently identifies a particular device, which shall be referred to herein as “Restricted Personal Information.”
“Security Incident” means any unauthorized or unlawful breach of security leading to, or reasonably believed to have led to, the accidental or unlawful destruction loss, alteration, unauthorized disclosure or access to any data processed under or in connection with the Agreement(s), including but not limited to Personal Information.
“Taxes” means all federal, state, local, foreign and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government.
“Third-Party Vendor” means a company that is not an Inventory Source but that provides data (“Third-Party Data“) or other services (“Third-Party Services“) to facilitate Transactions or enhance Magnite’s Services.
“Transaction” means the purchase of Inventory by Customer via the Magnite Platform.
1. GRANTS; RESTRICTIONS ON USE; CONTENTS OF ADS
1.1 Magnite Platform. Magnite shall grant Customer the right to access and use the Magnite Materials solely as permitted and required under this Agreement. Customer shall be fully responsible for the acts and omissions of its Authorized Users, including the placement of bids and the execution of any Transactions with Inventory Sources through the Magnite Platform, and for all Fees related thereto.
1.2 Advertisements. Customer hereby grants Magnite all rights and licenses in and to the Advertisements, including all content therein, in each case as necessary for Magnite to perform its obligations under this Agreement, including service of the Advertisement to the applicable Inventory Source. Magnite may restrict or remove any Advertisement from the Magnite Service for any reason in its reasonable sole discretion, including Magnite’s determination that the Advertisement does not comply with the Agreement or is likely to cause damage or injury to other Magnite clients or their end users or their systems or devices, the Magnite Materials, or Magnite’s or its clients’ respective policies or reputation. For some elements of the Magnite Services, Magnite’s preapproval of Advertisements may be required.
1.3 Restrictions on Use. Customer shall not (and shall not permit any Authorized User, Affiliate, or third party to) make any use or disclosure of the Magnite Materials that is not expressly permitted under this Agreement. Without limiting the foregoing, except as expressly permitted under this Agreement, Customer shall not (and shall not permit any Authorized User, Affiliate, or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the underlying structures, algorithms, ideas, know-how, or any other information of or related to the Magnite Materials; (ii) modify, translate, adapt, or create derivative works based on the Magnite Materials; (iii) make any copies of the Magnite Materials; (iv) resell, distribute, or sublicense the Magnite Materials; (v) make the Magnite Platform available on a timesharing or “service bureau” basis, or otherwise allow any third party to use or access the Magnite Materials; (vi) remove or modify any proprietary marking or restrictive legends placed on the Magnite Materials; (vii) use the Magnite Materials for any purpose not expressly permitted in this Agreement or in violation of Applicable Law; (viii) introduce into the Magnite Materials any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; (ix) use the Magnite Materials in connection with any Ads that do not comply with the Ad Quality Guidelines; (x) attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the website tags, source codes, links, pixels, modules, or other data provided by or obtained from Magnite that allows Magnite to measure ad performance and provide the Magnite Platform; (xi) use the Magnite Platform to target Ads to children under the age of 16 years or the age required for parental consent as defined by laws of any other applicable jurisdiction, or use the Magnite Platform in a manner that could violate the Children’s Online Privacy Protection Act (“COPPA”) or similar Applicable Laws in other jurisdictions, (xii) use the Magnite Platform to target Ads to users generally accepted as “sensitive” pursuant to the Interactive Advertising Bureau (“IAB”) Code of Conduct or Network Advertising Initiative (“NAI”) Code of Conduct (2020) guidelines unless pursuant to an opt-in policy. If Customer violates any of the above provisions, Magnite reserves the right, in its sole discretion, to deny Customer and its Authorized Users access to the Magnite Materials, or any portion thereof, in addition to pursuing whatever additional remedies are available to Magnite as a result of Customer’s breach of such terms.
1.4 Ad Quality. All Ads shall follow the Ad Quality Guidelines.
1.5 Bidding, Transactions, Third-Party and Inventory Source Policies. Customer’s use of the Magnite Platform will allow Customer to bid on and purchase Inventory from Inventory Sources as well as access data and services provided by Third-Party Vendors. Customer acknowledges and agrees that its decision(s) to bid on and purchase any available Inventory and/or to use the services of Third-Party Vendors shall be exclusively at the discretion of Customer. Magnite will not provide any recommendations to Customer in this regard or bear any liability or responsibility in connection with Customer’s decisions, the Inventory or Inventory Sources, or any data or services provided by Third-Party Vendors as may be selected by Customer.
2. CUSTOMER’S RESPONSIBILITIES
2.1 Password. Magnite will provide Customer with account access information, which includes a password (“Password”). When registering for an account with Magnite, Customer must provide true, accurate, current, and complete information. Customer is responsible for safeguarding its account access and Password and for all activity undertaken through its account. Magnite reserves the right to delete or change Customer’s Password or otherwise disable Customer’s access to the Magnite Materials at any time should Magnite believe it necessary to do so for security reasons, as determined by Magnite in its sole discretion. Magnite will not be liable for any loss or damage caused by any unauthorized use of Customer’s account.
2.2 Equipment, Access. Except as specifically provided for elsewhere in this Agreement, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Magnite Materials, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like.
3.1 As used herein, “Confidential Information” means all material or information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated or identified as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure (and whose disclosure is not otherwise permitted under the Agreement between Magnite and Customer). Confidential Information includes business and marketing plans, software code, technology and technical information, product and system designs and configurations, specifications, APIs, trade secrets, and business processes. The terms and conditions of the Agreement and the Magnite Materials are the Confidential Information of Magnite. However, notwithstanding the foregoing, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without restriction on use or disclosure; (iii) was independently developed by Receiving Party without reference to the Disclosing Party’s Confidential Information or breach of any obligation owed to Disclosing Party; or (iv) is rightfully received from a third party without restriction on use or disclosure.
3.2 Receiving Party shall not use or disclose to any third party any Confidential Information of Disclosing Party for any purpose other than (i) to perform Receiving Party’s obligations or exercise its rights under the Agreement (including, with regard to Magnite, the right to operate the Magnite Platform and provide the Magnite Services); (ii) with Disclosing Party’s prior written consent; or (iii) as otherwise required by law or legal process. Receiving Party may disclose the Confidential Information of the Disclosing Party to Receiving Party’s employees, consultants, or agents who have a bona fide need to know such Confidential Information to support the Receiving Party’s exercise of its rights or performance of its obligations under the Agreement and who are bound by confidentiality obligations with respect to such Confidential Information at least as protective as those set forth herein. Receiving Party shall be responsible and liable for failure by any party to which it discloses Disclosing Party’s Confidential Information to treat that information in accordance with Receiving Party’s obligations. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected unauthorized disclosure of Disclosing Party’s Confidential Information.
3.3 If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (i) prompt prior notice of such compelled disclosure (to the extent legally permitted) and (ii) reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure. In any event, such disclosure shall be strictly limited to the Confidential Information that is required to be so disclosed by law or legal process.
4. INTELLECTUAL PROPERTY. As between the Parties, Magnite is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Magnite Materials, including all source code, object code, operating instructions, and all interfaces developed for or relating to the same, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, improvements, and derivative works thereof, including all intellectual property rights therein and thereto (collectively, “Magnite Intellectual Property”). Customer has no rights to the Magnite Intellectual Property other than those expressly granted pursuant to this Agreement. As between the Parties, Customer is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Ads, including all intellectual property rights therein and thereto (collectively, “Customer Intellectual Property”). Magnite has no rights with respect to the Customer Intellectual Property other than those expressly granted pursuant to this Agreement.
5. TERM; AUTOMATIC RENEWALS; AND TERMINATION.
5.1 Term. This Agreement shall commence on the Effective Date and continue in effect until terminated hereunder (the “Term”). Each Party may terminate the Agreement at any time for any reason or no reason, without penalty, by providing thirty (30) days’ prior written notice to the other Party.
5.2 Termination. In addition to any other remedies it may have, either Party may also terminate this Agreement immediately if the other Party materially breaches any of the terms or conditions of this Agreement and does not cure the breach within five (5) days’ of receiving notice of the breach. Customer will pay in full for the Services hereunder up to and including the last day on which the Services are provided.
5.3 Effect of Termination. In the event of any termination or expiration of this Agreement, Customer shall pay Magnite for all undisputed amounts payable hereunder as of the effective date of termination or expiration; Customer and its Authorized Users shall immediately cease accessing and using the Magnite Materials; and, upon request, each Party will return to the other Party (or provide the other Party with written certification of the destruction of) all documents, computer files, and other materials containing any Confidential Information of such other Party that are in the first Party’s possession or control.
5.4 Survival. Upon termination or expiration of this Agreement, the following shall survive: (i) any provisions specified by their terms to survive; and (ii) provisions of the Agreement that, by their nature, are applicable to matters at issue between the Parties after termination of the Agreement, such as accrued unpaid payment obligations, limitation of liability, indemnities, confidentiality, and proprietary rights.
6. ADDITIONAL REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
6.1 Mutual Representations and Warranties. Each Party represents, warrants, and covenants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses and/or access granted hereunder; and (ii) it (and, with respect to Customer, its Authorized Users) shall comply with all Applicable Laws in the conduct of its business and in the performance of its obligations under this Agreement.
6.2 Additional Representations and Warranties of Customer. Customer further represents, warrants, and covenants to Magnite that (i) it has the rights to use and license the Advertisements as contemplated by this Agreement; (ii) Customer, if Customer is not the Advertiser, is authorized to act on behalf of the Advertiser; (iii) Customer shall employ commercially reasonable methodologies, technologies, and other means reasonably necessary to prevent the introduction of Malicious Code into the Magnite Platform, and shall not intentionally introduce Malicious Code into the Magnite Platform; and (iv) Customer shall use the Magnite Platform in compliance with Magnite’s publicly posted policies located at https://www.magnite.com/legal/ and all Applicable Laws, rules, and regulations.
6.3 Disclaimer. THE MAGNITE MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” MAGNITE MAKES NO WARRANTY WITH RESPECT TO THE MAGNITE MATERIALS AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT MAGNITE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
7.1 Customer will defend, indemnify, and hold harmless Magnite, its permitted successors and assigns, and their respective Affiliates officers, directors, agents, and employees (the “Magnite Indemnitees”) from and against any claims, suits, legal proceedings, regulatory proceedings, or investigatory proceedings (“Claims”) brought against any Magnite Indemnitees by any third party and any and all judgments, losses, damages, settlements, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and costs) (“Losses”) arising as a result of any such Claim, in each case as a result of or in connection with the Advertisements or Customer’s breach of its obligations or its representations and warranties as set forth in this Agreement.
7.2 Magnite will defend, indemnify, and hold harmless Customer and its permitted successors and assigns, and their respective Affiliates, officers, directors, agents, and employees (the “Customer Indemnitees”) from and against any Claims brought against any Customer Indemnitees by any third party and any and all Losses arising as a result of any such Claim, in each case as a result of or in connection with any claim that the Magnite Materials, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party. The indemnification obligations set forth in this Section 7.2 shall not apply with respect to portions or components of the Magnite Materials (i) not supplied by Magnite; (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Magnite; (iii) that are combined with other products, processes, or materials where the alleged infringement relates to such combination; (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (v) where Customer’s use of the Magnite Materials is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Magnite Materials are held by a court of competent jurisdiction to be or are believed by Magnite to be infringing, Magnite may, at its option and expense (a) replace or modify the Service or the API to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer the necessary rights to continue using the Magnite Materials, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Magnite Platform (if applicable).
7.3.1 Notice and Reasonable Assistance. In the event of a Claim, the indemnified party shall provide prompt notice of the Claim to the indemnifying party. A failure to provide prompt notice shall not release the indemnifying party from its indemnification obligations under the Agreement, but it will reduce those indemnification obligations by the amount (if any) of additional Losses attributable to the delayed notification. The indemnified party shall also provide reasonable information and assistance needed to defend or settle the Claim (provided the indemnifying party bears any out-of-pocket expenses incurred by the indemnified party in providing such assistance or information).
7.3.2 Control of Claim. The indemnifying party of any Claim shall have sole control of the investigation, defense, and settlement of the Claim, provided that the indemnifying party does not, without the prior written consent of the indemnified party, enter into any settlement of a Claim that: (i) imposes a monetary obligation on the indemnified party that is not covered by the indemnification; (ii) imposes a material, non-monetary obligation on the indemnified party; (iii) does not include an unconditional release of the indemnified party; (iv) admits liability on the part of the indemnified party; and/or (v) is non-confidential (collectively, the “Settlement Restrictions”). If the indemnified party refuses to consent to a settlement offer that the claimant will accept and that does not trigger any of the Settlement Restrictions, then the indemnified party shall be assigned the Claim, and the indemnifying party shall have no responsibility for any costs of defense after the date the settlement offer is made, and no responsibility to provide indemnity to the indemnified party in excess of the cost of the settlement offer.
8. LIMITATION OF LIABILITY.
8.1 Liability Exclusion. EXCEPT AS SET FORTH IN SECTION 8.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
8.2 Limitation of Damages. EXCEPT AS SET FORTH IN SECTION 8.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED TWO HUNDRED FIFTY THOUSAND UNITED STATES DOLLARS ($250,000).
8.3 The exclusions and limitations of liability set forth in Section 8.1 and Section 8.2 shall not apply in connection with a claim resulting from a Party’s gross negligence, willful misconduct, fraud, or its confidentiality or indemnity obligations (and, with regard to customer, breach of its restrictions on use in SECTION 1.3).
9.1 Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section 9.1 will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
9.2 Publicity. During the Term, with a Party’s prior permission, each Party may refer to the other Party as a customer and reference the usage of the Magnite Platform. In connection therewith, each Party may use the other Party’s corporate logo, with prior consent.
9.3 Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement shall operate or be deemed as a waiver of any such right or remedy.
9.4 Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to conflicts of law principles. Jurisdiction and venue for all disputes hereunder shall be in state and federal courts located in the State of New York, Borough of Manhattan. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
9.5 Notices. All notices required under this Agreement must be in writing and sent via email. Notices sent during the regular business hours of the receiving Party shall be deemed received on the day the notice was sent; notices sent during non-business hours shall be deemed received on the next business day. All notices to Magnite shall be sent to email@example.com. All notices to Customer will be sent to the email address on file with Magnite for Customer.
9.6 Independent Contractors. The Parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
9.7 Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision shall be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement shall remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, shall be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
9.8 Force Majeure. Except for Customer’s obligations to pay Fees, neither Party shall be deemed to be in breach of this Agreement and be liable to the other Party for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, earthquakes, strikes, or shortages of materials or resources.
9.9 Complete Understanding. This Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written.