Aquata Terms and Conditions
These AQUATA TERMS AND CONDITIONS (these “Terms”) are effective as of the Order Effective Date (“Effective Date”) indicated in the Aquata Order Form entered into by Arcesium LLC, a Delaware limited liability company (“Arcesium”), and the entity identified therein as the customer (“Customer”), and, subject to expiration or termination as provided herein, will remain in effect for the duration of the Subscription Term (defined in Section 6). The “Aquata Order Form” or “Order” refers to an ordering document for a paid Aquata (defined in Section 1) subscription that references these Terms. The Order together with these Terms forms the “Agreement” between Arcesium and Customer. This English language version of these Terms controls over any translation.
1. Aquata.
Arcesium is the developer and/or licensor of a proprietary cloud-based technology solution known as Aquata (defined below) designed to provide a synchronized source of information for disparate funds, asset classes, and datasets. Aquata comprises a series of separate Arcesium-owned or exclusively licensed object code applications (each, an “Application”) and embedded therein, or integrated therewith, are certain additional software and/or other content owned by and licensed from unaffiliated third parties (such third party elements, collectively with the Applications, are referred to as, “Aquata” or the “Solution”). Customer’s subscription hereunder includes services to manage, support, and maintain the Solution in, and make it available from, the remotely deployed and accessed technology and networking environment referred to as the “Cloud”. Such ongoing support, maintenance, and Cloud availability services are collectively referred to as the “Cloud Services”. The Solution and Use Rights (defined in Section 2.1) granted with respect thereto, together with the Cloud Services, are referred to collectively as, the “Arcesium Offerings.”
2. Use Rights; Restrictions.
2.1 Grant of Use Rights. Effective upon both parties’ execution of the Order, Arcesium hereby grants to Customer, for use by the Authorized Users (defined below), solely during the Subscription Term (defined below), a revocable, non-exclusive, non-transferrable, and non-sublicensable right, as limited by the Usage Metrics (defined below), to: (a) access and perform, remotely through the Internet and/or via virtual private network, the executable features and functions, and perform and display the graphical interface components of, the Solution in connection with Customer’s internal operations; and (b) download, print, display, and reproduce the documentation for the Solution as reasonably required in connection with the preceding (collectively, the “Use Rights”). The Use Rights are subject to all terms of the Agreement including certain limitations on Customer’s usage (the “Usage Metrics”), as provided in the Order. The Use Rights are granted solely to Customer for exercise by the Authorized Users and are not and will not be considered enterprise-wide rights. An “Authorized User” means each named individual employee of Customer or of an Authorized Affiliate (defined in Section 2.2) with user interface (“UI”) only or UI and API access to the Solution.
2.2 Restrictions on Use; Conditions.
The Solution may only be used in accordance with (and subject to) its documentation and specifications. As an express condition of the Use Rights, Customer and its Authorized Users shall not: (a) directly or indirectly, whether through Customer or any third party, act as a service bureau or timeshare for a third party or otherwise: (i) resell or sublicense Customer’s rights under the Agreement; and/or (ii) provide any third party (other than Authorized Affiliates as contemplated above), agent, and/or service provider, or any other non-Authorized User, with access to, or use of, the Solution); (b) reverse engineer, or attempt to create human readable source code from, the Solutions, or reverse engineer their database schema or file definitions; (c) remove, modify, or obscure proprietary rights notices placed on the Solution and/or their documentation or screens; or (d) export the Solution (actually or under the doctrine of deemed export) except between countries within which Customer is authorized to exercise Customer’s Use Rights, and in such instances Customer is solely responsible for compliance with applicable export laws. If Customer is required to provide a government or regulatory body with access to the Solution, such access is subject to this Section and Customer’s confidentiality obligations as well as Customer’s obligations and Arcesium’s rights under FARS and DFARS (and their state analogs and all of their successor regulations). As used herein, “Affiliate” means, with respect to any specified entity, any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the entity specified (where “control” has the meaning given to it under the United States Securities Exchange Act of 1934); and an “Authorized Affiliate” means an Affiliate of Customer that is not a Restricted Party (as defined in Section 8.1).
2.3 User Credentials.
Arcesium will issue credentials (a unique user identification and password) to authenticate Authorized Users’ right to access the Solution (“User Credentials”). Customer’s commitment to maintaining the strict confidentiality of the User Credentials is a material condition of the Use Rights. Customer must not allow unauthorized personnel to gain access to the User Credentials and shall immediately notify Arcesium of any unauthorized use of the User Credentials or any other breach of security related to the Solution of which Customer becomes aware. Customer is responsible for all activity that occurs under User Credentials issued to it and for notifying Arcesium if a named user leaves Customer’s employ or otherwise should be denied access to the Solution. Further, notwithstanding anything to the contrary in the Agreement, Customer shall be responsible and liable, and hereby assumes all responsibility and liability, with respect to the acts or omissions of all Authorized Users in connection with the Agreement (including any breach of the Agreement by such persons) and use of the Solution.
2.4 Records.
During the Subscription Term and for one (1) year thereafter, Customer must maintain records of the identities of Authorized Users and, on reasonable prior written notice and no more than once per calendar year, shall provide such records to Arcesium to confirm compliance with foregoing terms.
2.5 General Terms.
The Arcesium Offerings will be delivered using commercially reasonable efforts, and Arcesium’s ability to provide them is conditioned upon the following assumptions and dependencies: (a) Customer will provide such reasonable and timely cooperation as Arcesium may require of Customer, including access to Customer’s information, personnel, and/or systems; (b) Arcesium may rely on information, data, or materials submitted by, and consents, confirmations, and permissions provided by, Customer’s or its other service providers’ systems (if automated) or personnel (if not automated) and Arcesium has no obligation to independently verify the accuracy, completeness, or authority of the foregoing; (c) Customer will timely procure all necessary rights, and provide Arcesium and its Affiliates with access, to all necessary Customer Data (defined in Section 5), and will comply with all Customer obligations under its agreements and obligations related to Customer Data, all in accordance with any reasonable timeline communicated by Arcesium; and (d) Customer will be responsible for the costs of any dedicated network connection and other technology and infrastructure. Arcesium shall not be responsible for any non-performance, and/or any failures or delays in performance, if the foregoing assumptions or dependencies prove inaccurate or otherwise fail to obtain.
3. Suspension.
Without limiting Arcesium’s other rights hereunder, and without liability to Arcesium, Arcesium may suspend Customer’s or any Authorized User’s access to or use of the Arcesium Offerings (including as required by one or more of Arcesium’s business partners): (a) in the event of activity that, in Arcesium’s reasonable opinion, may put Arcesium, the Arcesium Offerings, or other licensees/subscribers at risk; (b) if necessitated by applicable law or regulation; or (c) if activity by Customer, its personnel, or Authorized Users, or otherwise under Customer’s credentials, breaches the Agreement.
4. Cloud Services; Support.
Maintenance, support, and availability services will be provided per, and in accordance with the service levels and other terms contained in, the policies found at https://view-su2.highspot.com/viewer/666a3ba30ab149474ebf20c0 (or such other address as Arcesium may notify Customer from time to time), which policies may be updated by Arcesium upon notice to Customer from time to time (including electronically) (the “Support Policies”). Customer acknowledges that, per such policies, first-line support is the only support Arcesium provides with respect to Third Party Data (defined in Section 5), and Customer may be required to contract with the licensor for additional support. For purposes of this Agreement, references to “Third Party Software and Data” in the Support Policies are deemed to refer to Third Party Data, all of which is provided by Customer and not Arcesium.
5. Ownership.
As between Customer and Arcesium, all IPR (defined below) in and to the Solution, Arcesium data, and Arcesium Tools and Methods (defined below), and in each case all of their derivative works and improvements, are owned or licensed by, and are proprietary to, Arcesium; provided that Arcesium asserts no ownership in or to any Customer Data. As between Customer and Arcesium, all IPR in and to Customer Data and Output are owned by Customer, and Customer hereby grants to Arcesium and its Affiliates the express right to possess, access, modify, and use the Customer Data and Output solely for purposes of performing Arcesium’s obligations under the Agreement; for loading, integrating, and using the same with the Solution and Cloud Services on behalf, and for the benefit, of Customer; and/or on an aggregated, de-identified basis (such that it is in no way identified or identifiable with Customer or its Affiliates) to improve the Arcesium Offerings or for marketing purposes. Customer agrees that Arcesium is relying on Customer’s representation that Customer is legally authorized to grant such license. “IPR” means intellectual property rights (including copyrights, trademarks, and patents), proprietary rights (including trade secrets), and moral rights (including rights of authorship and modification) throughout the world. “Customer Data” means all data input by or on behalf of Customer into the Solution, including any third party data, including market-data or similar price, trade, and historical/reference information (collectively, “Third Party Data”). “Output” means the actual contents resulting from calculations, derivations, or other processing of the Customer Data by the Applications, but expressly excludes any Arcesium data and Arcesium Tools and Methods. “Arcesium Tools and Methods” means the: (x) templates, forms, screens, and/or non-product software tools used to deliver or present the Output; and (y) methods, systems, and/or processes used to create, and the arrangement, organization, and categorization of, the Output.
6. Fees, Taxes, Expenses, and Payments.
The Order contains the fees and charges payable by Customer for Aquata (the “Fees”), together with the schedule of payments and any additional applicable payment information. Unless otherwise stated in the Order, all Fees will be invoiced by Arcesium and payable by Customer via ACH (in accordance with payment instructions communicated by Arcesium in writing) in U.S. Dollars with payment due within thirty (30) days of Customer’s receipt of invoice. Arcesium shall not be responsible for allocating Fees or other charges among Customer funds or entities. Fees do not include applicable taxes (including sales, use, value-added, or excise taxes) or government charges all of which are payable by Customer (excluding taxes on Arcesium’s income), which will be separately stated on the relevant invoice and paid by Customer in accordance with this Section 5. Unless otherwise set forth in the applicable Order, Fees will increase by five percent (5%) annually commencing on the first anniversary of the Effective Date. If Arcesium does not receive timely payment, Arcesium may charge the maximum monthly interest allowed by law up to one percent (1%), suspend Arcesium’s performance, and seek costs of collection, including reasonable attorneys’ fees. If Customer disputes invoiced amounts, Customer must submit good faith disputes to Arcesium in writing on or before the date the invoice becomes due, otherwise the invoiced amounts will be final and non-refundable.
7. Term and Termination. The initial term of Customer’s Use Rights under the Order (the “Initial Term”) will be stated in the Order. Upon expiration of the Initial Term, such Use Rights will automatically renew for successive twelve (12)-month terms (each, a “Renewal Term”; all Renewal Term(s) collectively with the Initial Term, the “Subscription Term”), unless either party gives the other written notice of non-renewal at least ninety (90) days prior to expiration of the Initial Term or then-current Renewal Term. If an obligation under the Agreement is materially breached, the non-breaching party may provide written notice specifying the nature of the breach and the breaching party will have thirty (30) days from receipt of notice to cure. If not so cured, the non-breaching party may terminate the Agreement by providing a second written notice of immediate termination. In addition, the Agreement, including all Use Rights and Cloud Services thereunder, shall terminate automatically and immediately upon Customer’s insolvency or any attempt by Customer to obtain protection from creditors or wind down operations, unless otherwise agreed by Arcesium in a written notice. Further, if Customer undergoes a change of control (as “control” is defined in Section 2.2), Customer shall notify Arcesium thereof as far in advance as reasonably practicable (or if advance notice is not permitted, within five (5) business days of the consummation thereof), and Arcesium may terminate the Agreement by written notice to Customer within thirty (30) days following receipt of such notice from Customer. If the Agreement is terminated by either party or expires pursuant to its terms, then Customer must immediately pay any outstanding amounts due to Arcesium, and all copies and embodiments of Arcesium’s confidential information (including the Applications) must be returned.
8. Confidentiality and Data Security.
8.1 Non-Disclosure; Non-Use.
All confidential, non-public information one party receives from the other in its performance of an Agreement, including the contents of the Agreement, shall be held in strictest confidence and shall not, without the express written consent of the disclosing party, be used (other than for performance hereunder) or disclosed except to those of the receiving party’s employees, service providers, and individual independent contractors (and, in the case of Arcesium as receiving party, to its Affiliates and such Affiliates’ employees, service providers, and individual independent contractors) (collectively, “Representatives”) who are bound to substantially similar obligations of confidentiality and have a need to know, except that Customer shall not in any event disclose Arcesium’s confidential, non-public information to any Restricted Party (defined below). Each party shall be liable for any breach of this Section 7 by such of its Representatives to which it discloses the other party’s confidential information. For the avoidance of doubt, the rights and obligations of Customer in this Section 7 shall not operate to modify the scope of Use Rights or any restrictions thereon including with respect to use of, or access to, the Arcesium Offerings by third parties (including Affiliates, agents, and/or service providers). A “Restricted Party” means any of (a) Viteos, IVP, MIK, Enfusion, Markit, SS&C, Citco, Northern Trust, Hedgserv, State Street, Eze Software Group, Broadridge, Gravitas, FIS, and Linedata or any other entity or business unit that competes with Arcesium, and/or (b) the Affiliates of all of the foregoing entities.
8.2 Disclosure Required by Law.
The receiving party is free to make disclosure of any confidential information in a judicial, legislative, or administrative investigation or proceeding or to a government or other regulatory agency; provided that, to the extent permitted by, and practicable under, the circumstances, the receiving party provides to the disclosing party prior written notice of the intended disclosure to enable the disclosing party the reasonable opportunity to contest or limit such disclosure or, if prior written notice is not permitted or practicable under the circumstances, notice of such disclosure promptly thereafter.
8.3 Data Protection Addendum.
Arcesium’s obligations to safeguard Customer Data if any, are as set forth in the Arcesium Data Protection Addendum found at https://view-su2.highspot.com/viewer/666a3b44df113037ae4d1a6d (or such other address as Arcesium may notify Customer from time to time), as updated by Arcesium from time to time (the “Data Protection Addendum”).
9. Indemnity.
9.1 Indemnification by Arcesium.
Arcesium will indemnify Customer (and hold the Customer harmless from amounts the Customer owes to third parties as the result of either a ruling by a court of competent jurisdiction or a reasonable settlement entered into by Arcesium that holds that the unmodified form of the Applications provided to Customer under the Order infringes or violates a third party’s copyright rights, trade secret rights, or trademark rights. If the Applications are found to be infringing, or if at any time Arcesium reasonably believes that the Applications may be subject to a claim of infringement, then Arcesium may choose to: (a) modify the applicable portions of the Applications to be non-infringing; (b) obtain a license for Customer to continue using the infringing portions of the Applications; (c) replace them with a functionally comparable, compatible, non-infringing alternative; or (d) if none of the foregoing is commercially practicable, terminate the Agreement including any Use Rights and refund a pro-rata portion of any pre-paid fees Customer paid for the terminated Applications. Arcesium’s indemnity obligations shall not apply to: (i) Customer’s use of the Applications outside the scope of the Use Rights and/or their documentation, (ii) infringement arising from Customer Data or any other materials not provided by Arcesium, (iii) any infringement not reported by Customer in accordance with these Terms (but only to the extent Arcesium is actually prejudiced by Customer’s delay or failure to report), or (iv) any modifications to the Applications made by any party (other than Arcesium or Arcesium’s subcontractors or by Customer acting at Arcesium’s express direction). This Section 9.1 sets forth Customer’s only remedy and Arcesium’s only liability with respect to infringement or other violations of IPR.
9.2 Indemnification by Customer.
Customer will indemnify, defend, and hold Arcesium and its Affiliates harmless from all third party claims, allegations, or causes of action (including investigations) and any resulting damages, costs, expenses, or fines (including reasonable legal costs) arising from or related to Customer Data (including Arcesium’s access thereto) (including any allegation which, if true, would mean Customer’s representation in Section 4 is untrue or the license granted by Customer therein is otherwise invalid), Section 11, Customer’s breach of an Agreement, and/or Customer’s investment, trading, and/or lending decisions.
10. Disclaimer of Warranty.
TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) ARCESIUM EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT); (B) ARCESIUM DOES NOT WARRANT THAT THE ARCESIUM OFFERINGS MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR ARE ERROR FREE; AND (C) IN NO EVENT SHALL ARCESIUM BE RESPONSIBLE FOR ANY FAILURES, DELAYS, OR DEFECTS IN THE ARCESIUM OFFERINGS CAUSED BY CUSTOMER DATA, THE ACTS OR OMISSIONS OF ANY PROVIDERS OR LICENSORS THEREOF, AND/OR ANY INABILITY TO OBTAIN SUFFICIENT RIGHTS THERETO.
11. Limitation of Liability.
(a) No Consequential Damages. NEITHER PARTY WILL be liable for ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, reliance, OR PUNITIVE damages OR LOST OR IMPUTED profits OR LOST DATA, other than with respect to EACH PARTY’s FRAUD, GROSS NEGLIGENCE, or WILLFUL MISCONDUCT.
(b) Limit on Direct Damages. other than with respect to: (i) fees paid or PAYABLE by customer under the agreement; (ii) breach of a party’s confidentiality obligations under section 7.1; AND (IIi) EACH PARTY’s FRAUD, GROSS NEGLIGENCE, or WILLFUL MISCONDUCT, EACH PARTY’S TOTAL AGGREGATE liability under the agreement WILL BE LIMITED TO direct damages in AN amount equivalent to the fees PAID OR PAYABLE TO ARCESIUM UNDER THE ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (THE “DIRECT DAMAGES LIMITATION”). IF A PARTY’S CLAIMS HEREUNDER ARISE OUT OF A SINGLE SET OF FACTS, THE NATURE OF WHICH MAKES ANY OF SUCH CLAIMS SUBJECT TO THE DIRECT DAMAGES LIMITATION, THEN THE MAXIMUM TOTAL LIABILITY FOR SUCH CLAIMS IN THE AGGREGATE SHALL BE THE DIRECT DAMAGES LIMITATION.
(c) Tolling; Further Assurances. Customer must bring all claims and causes of action within one (1) year after expiration or termination of the Subscription Term. The limitations and exclusions in this Section 11 apply to all claims or causes of action under whatever theory brought and regardless of whether a party was advised of the possibility of the claim. Customer agrees that the obligations of Arcesium arising under (or relating to) an Agreement and any other claims, demands, or causes of action arising out of (or relating to) the Agreement shall be without recourse to any partner or member of, or investor in, Arcesium, any controlling person of such partner, member, or investor, or any related entity, successor, or assign of any such partner, member, investor, or controlling person; and no such partner, member, investor, controlling person, related entity, successor, or assign shall have any liability for the obligations of Arcesium or for any other claims, demands, or causes of action for injunctive or monetary relief arising out of (or relating to) the Agreement. For the avoidance of doubt, each such partner, member, investor, controlling person, related entity, successor, and assign is a third-party beneficiary of the Agreement for purposes of enforcing the terms of the preceding sentence.
12. No Reliance.
Neither the Solution nor Arcesium makes lending, investment, or trading decisions nor do they render any type of financial, investment, legal, tax, regulatory, or other advice. Customer acknowledges that, as between Customer and Arcesium, Customer is solely responsible for its investment, trading, and/or lending decisions, and compliance with all applicable laws and industry regulatory rules with respect thereto. Customer further acknowledges that Arcesium is not a fiduciary to Customer or any of its investors or clients. In addition to and without limiting the restrictions and obligations in Section 14, to the extent that Customer provides any materials to its existing or prospective investors or clients: (a) describing Aquata; or (b) generated by or derived from, or provided as part of, Aquata (including any Output), such materials shall include a written statement that Customer is solely responsible for the content of such materials and that Arcesium shall have no liability with respect thereto.
13. Assignment.
Customer may not assign or transfer the Agreement or any Use Rights without Arcesium’s prior express written consent in each instance. Any purported assignment or transfer in violation of this Section 13 will be null and void ab initio.
14. Use of Names and Marks.
Customer shall not, without Arcesium’s prior written consent, explicitly or implicitly use Arcesium’s name, trademarks, or service marks in any of Customer’s marketing or publicity materials, offering documents, financial reports, or in any other materials provided to Customer’s existing and prospective investors or clients.
15. Non-Solicitation.
During the Subscription Term and for twelve (12) months thereafter, Customer agrees to not, directly or indirectly, direct, request, or seek to influence any of Customer's Affiliates to, solicit, hire, or employ (including in any consulting capacity) any employee, officer, or director of Arcesium or its Affiliates involved in Arcesium’s performance under the Agreement, or any person who served in any such capacity during the preceding six (6) months; provided that this Section 15 shall not prohibit general solicitation for employees through advertising and other similar means, if not directed at the employees, officers, or directors of Arcesium or its Affiliates, or the hiring or employment of any person who responds to any such general solicitation.
16. Miscellaneous.
Headings and captions are used for convenience of reference only. The Order may be signed in separate, identical counterparts deemed to be one instrument. The laws of the State of New York will govern all Agreements without regard to the principles of conflicts of laws. All disputes arising out of (or relating to) the Agreement shall be brought in the appropriate state or federal court located in the State of New York, New York County, and such courts will have exclusive substantive and procedural jurisdiction. The prevailing party in any dispute is entitled to the recovery of reasonable legal fees and expenses. All notices regarding the Agreement, including claims for purported breach thereof, must be sent by certified mail or reputable overnight courier to the address specified herein for each party (or such other address of which either party may notify the other in writing in accordance with the foregoing) and deemed given three (3) business days after sending; provided, that notices for operational and technical matters under the Order not involving allegations of breach may be sent via email to the respective party’s primary relationship contact thereunder. Copies of all legal notices to Arcesium shall be sent to: Arcesium LLC, 441 Ninth Avenue, 24th Floor, New York, NY 10001, to the attention of: General Counsel (or such other address of which Arcesium shall notify Customer in writing (via email sufficient)), with a copy (which shall not constitute notice) to legal@arcesium.com. Failures in performance beyond a party’s reasonable control are excused. Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waiver of a breach is not waiver of other or later breaches. Nothing in the Agreement is intended to create an agency, partnership, joint venture, or franchise between the parties and except as may be expressly stated in the Order, neither party has the authority to act in the name or on behalf of or otherwise to bind the other. In performing its obligations under the Agreement, each party is acting as an independent contractor of the other. For the avoidance of doubt and notwithstanding anything herein to the contrary: (a) Customer acknowledges that Arcesium’s Affiliates may be used in the performance of Arcesium’s obligations under the Agreement and are entitled to the benefit of all licenses and other rights granted to Arcesium under such Agreement whether expressly stated therein or not; and (b) Arcesium will be solely responsible for all acts and omissions of such Affiliates in performing under any Agreement. Arcesium may identify Customer as its customer to other Arcesium customers or prospective customers. Without limiting the foregoing, Arcesium may use and display Customer’s name, logos, trademarks, and service marks on Arcesium’s website and in Arcesium’s marketing materials in connection with identifying Customer as a customer of Arcesium. Upon Customer’s written request, Arcesium will promptly remove any such marks from Arcesium’s website and, to the extent commercially feasible, Arcesium’s marketing materials. References to days are references to calendar days unless otherwise specified. The word “including” is exemplary meaning “including without limitation” or “including, but not limited to.” The words “shall,” “will,” and “must” are obligatory and require performance of the stated condition or obligation. The word “may” is intended to be permissive, imparting a right, but not an obligation, to perform. To the extent required by the licensors of Customer Data, such licensors are the express, intended third-party beneficiaries of the Agreement. Except as expressly set forth in these Terms, there are no third-party beneficiaries of the Agreement.
17. Entire Agreement and Survival.
The Agreement constitutes the entire agreement between the parties with respect to the Use Rights thereunder and supersedes all previous or contemporaneous written and verbal agreements or proposals relating to the same subject matter, and cannot be modified except by written agreement referencing the specific provisions modified. Conflicts between these Terms and the Order with respect to amounts, manner, or timing of payments will be resolved in favor of the Order. All other conflicts will be resolved in favor of these Terms. Purchase orders or similar documents issued by Customer or Customer’s agents are void and of no effect. If Customer’s procurement processes require use of an internal purchase order, such use will be solely for Customer’s administrative convenience, and no such purchase order or its accuracy will be a condition of payment, nor shall a purchase order or its terms supersede, replace, or amend any Agreement. Sections 2.4, 8, 9, 10, 11, 12, 13, 14, 15, and those portions of Sections 5, 6, 7, 16, and this Section 17 that by their nature should survive, each shall survive expiration or termination of the Agreement.
