Partner Program Terms and Conditions

This Independent Distribution Agreement (the "Agreement"), entered into by and between Playphone, Inc., a Delaware corporation ("Playphone"), and you (together with Playphone, each a "Party" and collectively, the "Parties"), sets forth the terms and conditions of your participation in Playphone’s Partner Program (the “Program”). Your participation in the Program is subject to Playphone’s approval in its sole discretion. Playphone reserves the right, in its sole discretion, to reject you. By checking the box below and clicking the "CONTINUE" button, you assert that you have reviewed and agree to be bound by the terms of this Agreement. The “Effective Date” of this Agreement is the date on which you click the "CONTINUE" button.

WHEREAS, Playphone is a provider of mobile entertainment content with a website currently located at www.playphone.com (the "Playphone Site"); and

WHEREAS, you desire to promote the Playphone Service.

NOW THEREFORE, for the mutual promises and premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

  • 1. DEFINITIONS.
    • 1. "Adware" means any application or Widget that (a) causes advertising to pop-up as a new window (over or under the active window) on the end user’s computer or device, either randomly or based on the end user’s online activity (other than advertisements a person serves to visitors to such person’s own domains while those visitors are visiting such domains) or (b) is used to distribute Spyware.
    • 2. "Application Terms of Use" means documentation provided to the end user governing an Your Application.
    • 3. "Customer" means an end user referred to Playphone directly by you through the Integration under this Agreement that: (a) provides all information requested by Playphone, which may include carrier, mobile number, email address, and content selection information, (b) agrees to the Terms & Conditions, (c) (i) receives a password from Playphone via text messaging ("SMS") or WAP push and responds “yes” to the message or enters the correct password on a Playphone confirmation page, or (ii) directly downloads Mobile Content via WAP or similar services, and (d) is billed by or on behalf of Playphone for a monthly subscription
    • 4. "Customer Data" means data collected by Playphone with respect to Customers, including contact information (such as name, email address, cell phone number and postal address), certain billing information (such as credit card number and expiration date), demographic information (such as zip code, age level), and information relating to Mobile Content purchases and usage patterns.
    • 5. "Drive-by-Download" means implementing or allowing any automatic application or Widget installation process or procedure to be initiated without the end user giving his or her informed consent to the installation or download prior to the initiation of the process or procedure.
    • 6. "Integration" means a placement that includes portions of the Playphone Services through use of the Playphone Tools in accordance with the Specifications, as well as any other instances of direct marketing and promotion of the Playphone Services by you, to the extent expressly permitted by this Agreement
    • 7. "Malware" means any viruses, trojan horses or other disruptive software, or any software designed to disrupt, damage, or perform unauthorized actions on a computer system, or which transmit data from a user’s computer without notice to and the express prior consent of the user, including, without limitation, Adware and Spyware.
    • 8. "Mobile Content" means any Mobile Device content offered to Customers by Playphone, including, without limitation, ringtones, wallpaper images, video, text alerts, and games.
    • 9. "Mobile Device" means a portable wireless telecommunications device through which a Customer may connect with a Mobile Network to transmit and receive communications, including, without limitation, wireless, mobile or cellular communication devices, Internet communications devices, or other communications or transmission technology now known or hereafter devised.
    • 10. "Mobile Network" means a wireless telecommunications network pursuant to which a Playphone Customer receives mobile telecommunications services.
    • 11. "Playphone Service" means the services provided by us with respect to Mobile Content to Customers on a subscription basis, as well as any associated applications, including, without limitation, those applications that allow Customers to purchase and receive Mobile Content.
    • 12. "Playphone Tools" means any application programming interface (“API”) or technology and related documentation and any uniquely coded hyperlinks made available by Playphone that allow you to develop the Integration with Playphone and offer access to the Playphone Service, including, without limitation, any xml feed of the Playphone catalog of Mobile Content.
    • 13. "Playphone Marks" means the trademarks, service marks, trade names, brands, logos and other distinctive branding features of Playphone.
    • 14. "Playphone User" means an end user of the Playphone Service.
    • 15. "Specifications" means the formatting parameters, technical specifications, privacy and regulatory guidelines (including applicable Mobile Marketing Association guidelines), design and functionality requirements, Mobile Content parameters, and implementation processes set forth on Playphone’s “Specifications Page” located at Partnerprogram.playphone.com/regulations, as may be updated by Playphone from time to time.
    • 16. "Spyware" means any application or Widget that covertly gathers end user date and transmits it through the end user’s Internet connection, other than information (1) reasonably gathered in connection with services or information provided by the software provider to such end users, or (2) that is not associated with personally identifiable information.
    • 17. "Terms & Conditions" means Playphone’s Terms of Service and Privacy Policy and any other standard end user documentation of the Playphone Service, as the same may be updated from time to time.
    • 18. "Third Party Sites" means any Web sites or online services other than the Playphone Site, including any Web sites or online services owned or controlled by you.
    • 19. "Widget" means an element of graphical user interface that displays information or provides a specific way for a user to interact with an operating system and application programs.
    • 20. "Your Application" means your own proprietary application and/or Widget.
    • 21. "Your Marks" means your trademarks, service marks, trade names, brands, logos and other distinctive branding features.
    • 22. "Custom Widget" means the customizable Widget hosted by Playphone or its subcontractor and provided by Playphone as part of the Program.
  • 2. LICENSE GRANT.
    • 1. License Grant. Subject to the terms and conditions of this Agreement, Playphone grants to you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable license to: (i) use the Playphone Tools for the sole purpose of developing with Playphone and offering to prospective Customers the Integration and/or Custom Widget on Third Party Sites and/or Your Applications in accordance with the Specifications, (ii) customize the Widget through the widget platform of Playphone’s widget provider, (iii) use the Widget in accordance with any terms provided by Playphone or its subcontractor, and (iv) offer and promote the Playphone Services in conjunction with the Integration and the Custom Widget.
    • 2. License Restrictions. You shall not use the Playphone Tools, the Integration or the Widget other than as contemplated in this Agreement nor distribute, modify, adapt, translate, or prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Playphone Tools.
  • 3. PLAYPHONE RESPONSIBILITIES.
    • 1. Playphone Service. Playphone shall, at its own cost and expense, provide the Playphone Service and obtain Mobile Content for the Playphone Service. Playphone shall be solely responsible for and will solely control the Playphone Service, and all features, content, pricing, and functionality thereof, and will have the right to modify or amend the same at all times, in its sole discretion.
    • 2. Customer Support. Playphone shall administer first response customer support to all inquiries or complaints received from Playphone Users via the Playphone Service.
    • 3. Terms of Use. The Playphone Service and Integration shall be offered to Playphone Users subject to the Terms & Conditions, but in no event will Playphone be liable for any breach by Playphone Users of the same.
  • 4. YOUR RESPONSIBILITIES.
    • 1. Required Consents. You shall be solely responsible, at no cost to Playphone, for (i) procuring and maintaining during the Term all rights, consents, licenses, permissions, and clearances with respect to any Third Party Sites, Your Applications or Your Marks (all of the foregoing, collectively, “Required Consents”) and (ii) paying any interested third parties (including performing rights organizations (e.g., ASCAP, BMI and SESAC) and unions (e.g., AFTRA)), all royalties, clearance costs, payments that may be required under collective bargaining agreements, and all other fees relating to or arising out of any Required Consents.
    • 2. Integration/ Widget. You shall at all times cooperate in good faith with Playphone to produce and implement the Integration and/or Widget in accordance with the Specifications and any other terms provided by Playphone or its subcontractor.
    • 3. Restrictions/Adherence to Marketing Regulations. You shall at all times comply with the terms of Playphone’s Marketing Regulations, as may be updated from time to time in Playphone’s sole discretion (the “Marketing Regulations”). The current version of the Marketing Regulations is located at Partnerprogram.playphone.com/regulations and is incorporated herein by reference. You shall not display the Integration or the Widget on a web page with or adjacent to any material that is, in Playphone’s reasonable opinion, pornographic, obscene, violent, hate-related, controversial or otherwise objectionable. Without limiting Playphone’s other rights or remedies at law or equity, Playphone may immediately terminate this Agreement, withhold payment from you and disable any Integration hereunder in the event Playphone reasonably believes you have failed to comply with the Marketing Regulations.
    • 4. Privacy. You agree that if you collect any information (including, but not limited to, Customer Data) from end users (including, but not limited to, Customers and Playphone Users) you shall do so in accordance with all applicable laws, including, but not limited to, applicable privacy and data security laws, rules, and regulations. In addition, a link to a privacy policy shall be posted on any Third Party Site or Your Application through which you collect information from end users.
    • 5. Restrictions for Your Applications. You agree that Your Applications displaying the Integration and/or Widget will not be Malware or be distributed as Drive-by-Downloads. If Your Application is downloadable by an end user to a computer or Mobile Device, you shall, at all times, use industry best practices with respect to the disclosures presented to end users and the download processes for Your Applications. Your Applications must be accompanied by Application Terms of Use and shall not be bundled with any third party applications, software or Widgets.
    • 6. Cooperation. You shall promptly report to Playphone any malfunctions adversely affecting the Integration, the Widget or the Playphone Service and take all actions reasonably required to restore the Integration, the Widget or the Playphone Service to proper functioning. Playphone reserves the right, at its option and without liability, to require you to remove the Integration or Widget from or modify the Integration or Widget on the Third Party Sites and/or Your Applications at any time during the Term.
    • 7. Relationship Management. You shall designate a relationship manager reasonably acceptable to Playphone who shall be the principal point of contact between the Parties and who shall collaborate during the Term on ongoing editorial, promotional, and forward looking initiatives.
  • 5. OWNERSHIP.
    • 1. Ownership. Except as expressly set forth in this Agreement, as between you and Playphone, you and your licensors or partners retain all right, title, and interest in and to the Third Party Sites, Your Applications and Your Marks, including all copyrights and other intellectual property rights therein. All other rights not expressly granted under this Agreement by you are hereby reserved by you. As between you and Playphone, Playphone retains all right, title, and interest in and to the Playphone Service, Specifications, Playphone Tools, Playphone Marks, and Mobile Content, including all copyrights and other intellectual property rights therein. All rights not expressly granted under this Agreement by Playphone are hereby reserved by Playphone.
    • 2. Customer Data. Playphone shall own all right, title and interest in and to Customer Data collected with respect to Customers or Playphone Users who access the Integration, as applicable. You shall not use or authorize, encourage, or permit any third party to collect or use any Customer Data or disclose to third parties any Customer Data.
  • 6. TAXES.
    • 1. Fax your W-9 to 408-261-6201 or email accounting@playphone.com to get paid.
    • 2. Playphone will pay on Authorized from carrier subscriber that stays for at least 24 hours.
    • 3. Method of Payment. Within thirty (30) days after the receipt of each Statement, Playphone shall pay to you all undisputed Payments due you for that month in U.S. dollars via your PayPal account. You agree to provide Playphone with accurate information regarding your PayPal payment instructions and Playphone expressly disclaims any liability with respect to inaccurate PayPal information provided by you. You agree to otherwise cooperate as requested by Playphone to facilitate payments hereunder, it being understood that Playphone reserves the right to withhold payment until you have provided accurate PayPal payment instructions. A minimal accrual of $100 or more is required before Payments are made to you. Except as expressly provided herein, no other fees will be payable by Playphone under this Agreement in connection with the Integration, Playphone Service, licenses provided hereunder, or the provision of other materials or services under this Agreement. All Payments due hereunder will be accompanied by electronic reports e-mailed to you or made available to you by other means selected by Playphone that show total Customers and successful downloads for the calendar month ("Payment Reports").
    • 4. Taxes. All payments made by Playphone under this Agreement are without reduction for, any taxes; provided, however, that if required by applicable law or authorities, Playphone may reduce Payments for revenue share, fees, or royalties by the amount of tax, duties, or fees for which you are responsible hereunder, and pay such tax, duties, or fees to the appropriate authorities. In addition, you agree that you shall complete all necessary paperwork requested by Playphone in order that it may issue payments to you, before Playphone will be required to issue any payments to you. Other than federal and state net income taxes imposed on Playphone, you will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. In the event that Playphone is required to pay these Taxes on behalf of you, Playphone shall be entitled to deduct an amount equal to the Taxes owed from amounts owed to you under this Agreement.
    • 5. Costs. Except as otherwise expressly provided hereunder, each Party will be responsible for all costs and expenses incurred by it in connection with the performance of its obligations under this Agreement.
  • 7. CONFIDENTIAL INFORMATION.
    • 1. "Confidential Information" means any and all information that is disclosed by Playphone to you, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure, or by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary and/or confidential.
    • 2. Use and Disclosure Restrictions. You will use the same level of effort and care that you ordinarily use with respect to your own proprietary information of similar nature and importance, and in no event will you use less than a reasonable level of effort and care to maintain the confidentiality of all Confidential Information in your possession or control. You may not disclose the Confidential Information to any person other than those of your financial and legal advisors that need to know such Confidential Information for the purposes of providing professional services to you, provided that any such financial or legal advisors are subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. You may not use the Confidential Information for any purpose other than the purposes contemplated under this Agreement.
    • 3. Press Release. You shall not issue a news release or public announcement regarding this Agreement without the prior written consent of Playphone. Playphone is permitted to announce your participation in the Playphone Service.
    • 4. Sharing of Your Information. You agree that Playphone may share your email address, name, phone number or other personal information to our trusted partners for the purpose of providing you with the Playphone Tools or otherwise in connection with the Playphone Service.
  • 8. TERM AND TERMINATION.
    • 1. Term. The term of this Agreement will begin on the Effective Date and will continue until terminated by either Party (the "Term").
    • 2. Termination. Either Party may terminate this Agreement upon twenty-four (24) hours’ prior written notice.
    • 3. Effect of Termination. Upon termination or expiration of this Agreement, any provision which, by its nature or express terms should survive will survive termination or expiration, including Sections 5 and 7 through 12 of this Agreement. Upon expiration or termination of this Agreement for whatever reason, you will immediately cease using the Playphone Tools, Playphone Services, and Playphone Marks, and will cease to use the Confidential Information, and will destroy or return (at Playphone’s option) all Confidential Information previously provided to you.
    • 4. Removal of content. Notwithstanding any of the foregoing, Playphone may, for any reason or no reason and at any time and without any penalty (i) remove or make inaccessible from the Playphone Service any Mobile Content; and/or (ii) block or otherwise prevent access to the Playphone Service through or by the Integration, any Your Application, Widget, and/or API.
  • 9. REPRESENTATIONS, WARRANTIES AND COVENANTS
    • 1. Your Representations and Warranties. You represent and warrant to Playphone that: (a) you are over eighteen (18) years of age and have the full power and authority to enter into this Agreement; (b) the execution of this Agreement and performance of your obligations under this Agreement do not and will not violate any other agreement to which you are a party; (c) this Agreement constitutes a legal, valid, and binding obligation of it when executed and delivered; (d) any activities you undertake in connection with this Agreement will be performed in compliance in all material respects with applicable laws, rules, and regulations (including all applicable data privacy and data security laws, rules, regulations, and industry guidelines); (e) you have and will have all necessary rights, title, and interest in and to Your Applications and Your Marks, including any Required Consents, in order to grant the licenses set forth in this Agreement; (f) Your Applications and Third Party Sites are free of any known Malware and Spyware and will not be distributed as Drive-by-Downloads and will comply with the terms and policies of any sites on which they are placed; (g) the Integration and Custom Widget will be offered in accordance with the Specifications, this Agreement and any other terms provided by Playphone or its subcontractor; and (h) Your Applications, Your Marks and Third Party Sites do not and will not (I) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, (II) slander, defame, libel or invade the right of privacy, publicity or other property rights of any person, or (III) generate spam, phish or violate any law.
    • 2. Your Covenants. You shall (a) use the Integration and Widget in accordance with the terms and policies of any sites on which they are placed; (b) not export the Integration or Playphone Tools in any manner contrary to the export regulations of the United States; (c) not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Widget or Playphone Tools; (d) conduct your business in a manner that reflects favorably at all times on the Playphone Service and the good name, goodwill and reputation of Playphone; (e) avoid deception, misleading or unethical practices that are or might be detrimental to Playphone or the public, including, but not limited to, disparagement of Playphone or its products; (f) not publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material; and (g) make no representations, warranties or guarantees to third parties with respect to the specifications, features or capabilities of the Playphone Service or Widget that are inconsistent with the written specifications provided by Playphone to you.
    • 3. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PLAYPHONE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND PLAYPHONE EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. PLAYPHONE MAKES NO WARRANTY OF ANY KIND THAT THE PLAYPHONE SERVICE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR. WARRANTIES, IF ANY, WITH RESPECT TO ANY PRODUCTS OR SERVICES OFFERED BY PLAYPHONE WILL RUN DIRECTLY FROM PLAYPHONE TO CUSTOMERS.
  • 10. INDEMNIFICATION.

    You agree to indemnify, defend, and hold Playphone harmless from and against any liabilities, damages, losses, or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party that is based upon, arises out of, or relates to the alleged or actual breach of any of your representations, warranties, or covenants set forth in this Agreement, including, but not limited to, any claims, demands, actions, or proceedings initiated by any third party claiming a trademark, trade dress or other intellectual property interest in any of Your Applications, Third Party Sites or Your Marks.

  • 11. IMITATION OF LIABILITY.

    IN NO EVENT WILL PLAYPHONE BE LIABLE TO YOU FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT PLAYPHONE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL PLAYPHONE’S LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAYABLE BY PLAYPHONE TO YOU UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

  • 12. MISCELLANEOUS.
    • 1. Consultation with Counsel. You acknowledge that you have had the opportunity to consult with your own attorneys and advisors prior to entering into this Agreement and that you freely, knowingly and willfully enter into this Agreement with Playphone.
    • 2. Assignment; Binding Effect. Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other, except that Playphone may assign any of its rights and obligations under this Agreement without consent: (i) to any of its affiliates (provided that any such assignment will not relieve the assigning party of its obligations hereunder) or (ii) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its related assets, by operation of law or otherwise, or similar transaction. This Agreement inures to the benefit of and shall be binding on the Parties’ permitted assignees, transferees and successors.
    • 3. Governing Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The Parties agree that the federal and state courts located in San Jose, Santa Clara County will have exclusive jurisdiction and venue under this Agreement, and the Parties hereby agree to submit to the jurisdiction exclusively.
    • 4. Relationship of Parties. The Parties are independent contractors with respect to each other. You are and remain, for all purposes, responsible for your own actions, taxes, the provision of any benefits, insurance and compliance with any and all applicable laws and regulations. This Agreement does not constitute and may not be construed as constituting a partnership or joint venture among the Parties hereto, or an employee-employer relationship. No Party shall have any right to obligate or bind the other Party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
    • 5. Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, carrier gateway provider service failures, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
    • 6. Notices. All notices under the terms of this Agreement must be given in writing and sent by registered mail or facsimile transmission with machine confirmation or must be delivered by hand. Notices to you may be sent to the email address provided by you or sent to the address or facsimile number provided by you to Playphone. Notices to Playphone will be delivered to the following address:
      PLAYPHONE, INC.
      Address: 224 Airport Parkway #300, San Jose, CA 95110
      Fax: 408-261-6201
      Attention: Legal Department
      With a copy of notices pertaining to breach to:
      Attention: Legal Department

      All notices will be presumed to have been received when hand delivered, five business days of mailing of the notice by registered mail, or upon receipt of a successful facsimile transmission delivery receipt.

    • 7. Headings and Wording. Unless otherwise expressly stated in this Agreement, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection, or other subdivision. Article, Section, Subsection and Attachment references refer to articles, sections and subsections of, and attachments to, this Agreement. The words “include” and “including” are not and should not be construed or interpreted as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month, and calendar year. The word “notice” and “notification” and their derivatives mean notification in writing. Section or paragraph headings used in this Agreement are for reference purposes only, and should not be used in the interpretation hereof. No provision of this Agreement will be construed against either Party as the drafter thereof.
    • 8. Amendment. Playphone reserves the right to amend this Agreement in its sole discretion by notifying you in writing. All other amendments of this Agreement must be in writing and executed by both Parties. No trade usage or other regular practice or method of dealing between the Parties may modify, interpret, supplement or alter in any manner the express terms of this Agreement.
    • 9. Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.
    • 10. Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
    • 11. Entire Agreement. This Agreement, together with all documents and materials specifically referred to in this Agreement and which are incorporated by this reference and form a part of this Agreement,  represents the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior and contemporaneous agreements, representations, negotiations and/or understandings, written or oral, for all purposes.