This GENERAL TERMS AND CONDITIONS (collectively with any and all Insertion Order and/or Order Form addendums, exhibits, premises, schedules, and/or appendixes hereto, and as each of the same may be amended, supplemented or otherwise modified from time to time, this “Agreement”), are made by and entered into between Preciso SRL a corporation having its registered office located at Via Picena 14 Atri 64032 Italy(“Preciso”), and the other entity signatory hereto (on its own behalf and on behalf of its Affiliates, “Advertiser”). Preciso and Advertiser may be referred to herein together as the “Parties”, and each may be referred to herein as a “Party”.
WHEREAS, Preciso is a company expert in display advertising and retargeting, proficiently accomplished through a programmatic understanding, and owns a proprietary technology used to optimize programmatic buying called “Preciso ” (as more precisely defined below); and
WHEREAS, the Advertiser wants to use the Services as provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement, the Parties, intending to be legally bound, agree as follows:
“Ad” means any Advertiser’s advertising that is targeted to an end user through the Services.
“Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.
“Data Protection Laws” means, the EU General Data Protection Regulation 2016/679 (“GDPR”), as well as any other personal data protection legislation applicable, already in force or that will enter into force after this DPA enters into force, including the provisions of any Data Protection Authority. Each of the respective terms “data controller”, “data processor”, “data subject”, “personal data”, and “processing” shall have the same meaning as in Data Protection Laws, and their cognate terms shall be construed accordingly.
“Effective Date” means the execution date of an Insertion Order and/or any date otherwise indicated by the Parties in writing, and/or in absence of the above, the starting date of the provision of the Services.
“Fees” means the amount that the Advertiser shall pay to Preciso for the Services, as stated under Section 5.
“Inventory” means Publisher’s advertising spaces on the Sites made available for purchase.
“Insertion Order” or “Order Form” means a document executed by both Parties that specifies the type of Services to be provided to Advertiser by Preciso for campaigns, the duration of the Services, a budget, fees, and other specific details for the Services.
“Preciso” means Preciso proprietary DSP technology, licensed to the Advertiser which allows the Advertiser to plan directly its campaigns.
“Publisher” means the owners of the Sites where the Ad will be displayed with the Services.
“Reasonable Endeavours” means taking such steps and performing in such a manner, including, without limitation, by reference to the levels of accuracy, quality, care, prudence, completeness, timeliness, responsiveness, resource efficiency, productivity and proactive monitoring of service performance, as a well-managed Preciso would undertake and perform where such Preciso was acting in a diligent, prudent and reasonable manner to achieve a particular desired result for its own benefit.
“Rules” means, collectively, all now existing or hereinafter enacted or amended laws, rules, regulations, self-regulations, declarations, decrees, directives, statutes, and/or other enactments, orders, mandates or resolutions issued or enacted by any governmental or regulatory entity (including, without limitation, any domestic or foreign, supra-national, state, county, municipal, local, territorial or other government), which includes, to the extent applicable and without limitation, Directive 95/46/EC, Directive 2002/58/EC, European Commission decisions and guidance, each as may be transposed into domestic legislation of each European Member State or other country and as amended, replaced or superseded from time to time, including, without limitation, by Data Protection Laws and laws implementing or supplementing Data Protection Laws, and any and all applicable self-regulatory codes and principles related to privacy, the processing or protection of personal data, advertising, marketing or the interception, recording or monitoring of communications.
“Services” means any service that Preciso offering to Advertiser, that Advertiser agrees to receive, subject to this Agreement, as provided for in the Insertion Order(s) If specified within the Insertion Order, they may include Preciso’s license.
“Site” means a website, application, or other digital property on or in which Preciso shall provide the Services, owned or legitimately managed by Publishers.
Preciso reserves the right, at its sole discretion, to display Ad through online advertising campaigns within Preciso’s network, which will include multiple traffic sources, promotional models, and Sites. For the execution of the Services, Advertiser grants Preciso (i) the right to select and display Ad within the Advertiser properties, (ii) to promote, market and sell to third party Advertisers and any agencies, (iii) to monitor and track the use of an Ad and to analyse any relevant information, as well as (iv) to do any ancillary and additional activity of the above. Subject to the terms and conditions of this Agreement, Advertiser shall have a non-exclusive right to use the Services during the Term. If the Services include Preciso’s license, Preciso will grant the Advertiser an access to a dedicated dashboard where the Advertiser may directly plan its advertising campaigns and a license to use Preciso for the time indicated in the Insertion Order.
This Agreement applies to and governs each Party’s participation in, and respective rights and obligations with respect to, the provision of the Services. The obligations of the Parties set forth in this Agreement are minimum obligations and are not intended to replace or limit any other obligations to which a Party may otherwise be subject, including, without limitation, obligations under applicable Rules. These General Terms and Conditions shall be read and construed in conjunction with the Insertion Order signed between the Parties and without prejudice to any subsequent amendment or modification of any particular provision contained herein, shall become effective and binding as from date of signature of the Insertion Order. In the event of any conflict with any specific term or agreement reached between the Parties on the Insertion Order, the terms or agreement specified in the Insertion Order shall prevail.
Notwithstanding anything to the contrary in this Agreement, but subject to Advertiser’s rights under Section 6.4 hereof, Preciso may supplement, amend, or otherwise modify the terms and conditions of this Agreement (i) due to a change in (including, without limitation, addition of) Rule(s) and/or (ii) in order to optimize the adoption, implementation, and/or operation of the Services, as determined by Preciso in its reasonable discretion (each, a “Unilateral Amendment”), in each case upon notice to Advertiser; provided that Preciso shall apply the terms of each such Unilateral Amendment to its corresponding agreement with each other similarly situated (e.g., in the same category(ies) and jurisdiction) Advertisers.
Each Party represents and warrants that: (i) it has and will have all necessary rights and authority to enter into, and to perform its obligations under, this Agreement; and (ii) its performance under this Agreement will not violate any applicable Rule(s) or any other agreement or terms of service to which it is a party or by which it is bound.
Without limiting either Party’s obligations under this Agreement, each Party will maintain technical and organisational measures to ensure, appropriate to the nature of its Personal Data, security of such Personal Data, including, without limitation, protection against unauthorised or unlawful processing and against accidental loss, destruction or damage
Without limiting the generality of Section 3.1 hereof and without limiting any of Advertiser’s obligations under this Agreement, Advertiser represents and warrants that:
all of the information Advertiser has provided and shall in the future provide to Preciso is accurate and current.
has all necessary and legal rights, powers, and authority to accept and be bound, and to bound any subject on his behalf, by these Agreement and to perform the acts required of Advertiser hereunder.
is in compliance with all applicable laws, Rules, and regulations and with Data Protection Laws. For that purpose, Advertiser shall implement all necessary measures to ensure compliance.
Advertiser represents and warrants to Preciso that: (i) it has the right to enter into this Agreement, to grant all rights granted and to perform its obligations under this Agreement; (ii) the Ad do not include, and does not give access via hyperlinks to any property containing, materials that are obscene, defamatory or contrary to any Applicable Law; (iii) Ad comply at all times with Rules in all jurisdictions where Ads and Sites are viewed; (iv) Ad do not display, reference, link to, or endorse any content that violates this Agreement or the Rules; (v) Ad does not infringe or misappropriate the rights of any third party; (vi) Ad are compliant to any applicable advertising law, including self-regulation.
Advertiser is strictly prohibited from effecting any re-arrangements or modifications of any kind to tags and content of any Preciso Cookies. Failure to comply with this obligation may result in tracking issues and relevant payments due from the use of any such modified or re-arranged content shall not be guaranteed.
Advertiser will comply with all requirements for use of the Services communicated by Preciso to Advertiser, and acknowledges that absent such compliance, Preciso may be unable to provide the Services to Advertiser. Depending on the Services Advertiser chooses to receive, technical requirements may include: including tags, pixels, script, or code supplied by Preciso on Advertiser’s Ad. Preciso will have no liability to Advertiser for such inability to provide the Services, if such inability is a result of Advertiser’s failure to comply with this Section.
Non-solicit. Except in the case of a specific request from Preciso, the Company for a period of 2 (two) years shall not solicit or have any direct contractual relationship with Publishers introduced by Preciso under this Agreement with respect to similar services and/or services competing with the Services of Preciso which are the subject of the Agreement.
Where Advertiser is an Agency or authorized reseller entering into this Agreement on behalf of their clients: (i) Agency or authorized reseller represents that it has the authority to act on behalf of such clients with respect to all obligations and representations set forth in this Agreement; (ii) upon request, Agency/authorized reseller will provide Preciso with written confirmation of the relationship between Agency/authorized reseller and its clients (this confirmation should include their clients ’s acknowledgement that Agency is indeed its agent and is authorized to act on its behalf in connection with the Agreement); (iii) upon the request of Preciso, Agency will provide Preciso with written confirmation that Advertiser has paid to Agency funds sufficient to make payments pursuant to the Agreement; (iv) Agency or authorized reseller accepts responsibility for the actions of its clients and liability for all expenses incurred through the provision of Services to its clients, and assumes responsibility for ensuring compliance with and breach of this Agreement by its clients; (v) except as otherwise set forth hereunder, Agencies or authorized resellers will ensure the performance of their respective clients’ obligations under this Agreement and will have joint and several liability in respect of clients’ breach of this Agreement; (vi) Agency or authorized reseller clients may request at any time that their Account be migrated to another agency or directly to them with Preciso and nothing in this Agreement will prevent Preciso and a client from entering into a direct relationship; (vii) Preciso reserves the right to reasonably object to any client at Preciso’s sole discretion.
Preciso provides the Services “as is” and “as available” and hereby disclaims all warranties with respect to the Services, whether express or implied, including warranties of merchantability, and fitness for any particular purpose. Preciso does not warrant that the Services will operate uninterrupted or error-free and it is possible that the Services may be inaccessible, unavailable, or inoperable from time to time. Preciso makes no representation or warranty about the result Advertiser will obtain through using the Services including the level of Ad unit impressions or clicks on any Ad unit or the timing of delivery of such impressions and/or clicks under this Agreement. Preciso is not responsible for the receipt of queries from end users to whom the Ads where displayed or the transmission of data between the Ads and Preciso.
Preciso’s Actions. Advertiser can request to work with Preciso (including within the technologies where such functionality is available) to manage display preferences when and to the extent such controls are made available to Preciso. Advertiser acknowledges that Preciso has limited control where and how often Ads will be displayed within the network of Publishers. Preciso is committed to provide quality inventory, however, at times Ads may be displayed next to ads of Advertiser’s competitors, or on websites or applications that are undesirable to Advertiser unless Advertiser excludes the website in accordance with Insertion Order. If a Advertiser raises written concern about a website that Ads are being served on, Preciso will to the best of efforts remove the Advertiser’s Ads from serving on this inventory. Preciso will use commercially reasonable efforts not to display Ads on websites or applications that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Advertiser notifies Preciso in writing that Ads are being displayed in this manner, Preciso will use commercially reasonable efforts to prevent Ads from continuing to display on such inventory sources. Preciso retains the authority to remove any Advertiser Content that it deems to be in violation of this Agreement or Rules, in its sole discretion. Preciso reserves the right to pause or terminate campaigns at any time that are no longer eligible to run in accordance with such policies or Rules.
Preciso may optimize towards Advertiser’s performance or goals by programmatically using Ads to create new content (such as Ads and, if Advertiser agrees to receive such Services, emails, or other necessary marketing materials) and inserting them into Advertiser’s active campaigns, or create, change, or pause campaigns on the Advertiser’s behalf, subject to Advertiser’s budget. Preciso will subsequently notify Advertiser if Preciso makes material changes to Ads. The Parties acknowledge and agree that within Preciso’s license, this article shall be read combined with article 3.8 below.
Advertiser acknowledges and agrees that if the Advertiser choose the Preciso’s license, the Advertiser will be the sole responsible for the planning and managing of the advertising campaigns. Preciso’s activities will be limited to standard market assistance activities, such as providing access to the dashboard, explaining its functioning and characteristics. It remains understood between the Parties that Preciso will not have any role in managing Preciso from a business perspective, any decision and responsibility on the campaigns will be on the Advertiser.
Preciso is and will be deemed to be acting as sole data controller under this Agreement with respect to the Preciso Cookies, in each case if and to the extent deemed to be personal data.
4.2 Data Representations, Warranties, And Obligations.
Each Party undertakes, in respect of that which lies within its competence, to comply with Data Protection Laws, and each Party recognizes that compliance with the obligations concerning the protection and safeguarding of information is a matter of utmost importance to the other.
The Agreement involve the use of Preciso’s technologies – where Preciso acts as Data Controller – the Advertiser acknowledges and expressly agrees to the presence of Preciso’s tracking on the Ads according to the provision of the present Agreement.
The Advertiser acknowledges and expressly agrees that the services of Preciso could include profiling activities by means of cookies and/or, in general, identifiers with profiling purposes and/or behavioral and/or retargeting purposes.
Advertiser shall pay Preciso the Fee indicated by Preciso for the Services, accordingly to the prices agreed with each Insertion Order.
Advertiser agrees that Advertiser has all necessary rights, power, and authority to authorize each such payment. For certain payment methods, the issuer of Advertiser’s payment method may charge Advertiser a foreign transaction fee or other charges. Advertiser should check with the payment method service provider for details. If Advertiser develops credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or Preciso otherwise designates Advertiser as a credit risk, Preciso reserves the right to require prepayment. Advertiser agrees to maintain sufficient funds or credit availability in Advertiser’s payment method to satisfy Advertiser’s amounts due and that Preciso will have no obligation to provide the Services if sufficient funds are not available at the time Advertiser’s payment is submitted, and Preciso reserves the right to suspend Advertiser’s campaigns due to failed payments or insufficient balance. Except as may be set forth in this Agreement, each Party shall be responsible for its own costs and expenses required to conduct and perform its respective services and perform its other obligations hereunder.
In its sole discretion, Preciso may offer promotions to Advertiser, subject to any terms set out in the applicable written documentation or, if applicable, Insertion Order. If Advertiser accepts the promotion, Advertiser understands and agrees that after the promotion, the campaign will automatically continue as a paid campaign, unless Advertiser pauses or completes the campaign as described in the applicable Insertion Order. Advertiser is responsible for all campaign costs that occur beyond the parameters of the promotion described in the applicable Insertion Order.
Claims. Unless expressly agreed to in writing by Preciso, the Fees will be based on Preciso’s measurements and tracking through its own servers using the number of impressions, clicks, and other indicators necessary for calculating the Fees payable by Advertiser. Claims relating to invoices or account charges must be raised by Advertiser within 30 days of receipt or will be barred.
All payments to Preciso will be made in Euro, unless otherwise agreed to in an Insertion Order. Payments are quoted exclusive of any taxes. Advertiser is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon Preciso’s net income.
This Agreement shall commence upon the Effective Date and continue unless and until terminated in accordance with the provisions hereof or until otherwise provided in the Insertion Order (such period, the “Term”).
Either Party may terminate this Agreement, for any reason or no reason, effective as of the last day of a calendar quarter, by providing at least thirty (30) days’ notice to the other Party.
Preciso may terminate this Agreement immediately upon written notice to Advertiser in the event that Advertiser materially breaches this Agreement; provided, however, that if such breach is capable of cure, Advertiser will have thirty (30) days (or such additional cure period, if any, as Preciso may so authorize in writing) from the date of such notice to cure such breach (during which time such Advertiser’s use of the Service may be (but is not obligated to be) suspended).
Advertiser may terminate this Agreement within thirty (30) days after receiving notice of a Unilateral Amendment in the event that Advertiser reasonably believes that, after using Reasonable Endeavours (as defined below), it will not be able to comply with the terms and conditions of this Agreement as amended by such Unilateral Amendment.
Preciso may terminate this Agreement due to a change in, or addition of a, Rule by providing at least 30 days’ prior notice (or such shorter period as provided in the applicable notice, if Preciso reasonably determines that such change in Rule or additional Rule will apply prior to the application of such 30-day period) in the event that Preciso reasonably believes that, after using Reasonable Endeavours, the Services and/or the operation thereof will not be able to comply with the terms and conditions of the changed or additional Rule.
As between the Parties: (i) Preciso owns and will retain all right, title, and interest in and to its intellectual property, including, without limitation, to the Services (in each case, including, without limitation, all software, technologies, concepts, methodologies, techniques, models, templates, algorithms, trade secrets, processes, information, materials, source codes and know-how contained therein or related thereto, all modifications, updates, enhancements and derivative works thereof, all documentation and manuals related thereto and all other aspects of such technology), and all intellectual property and proprietary rights in and to all of the foregoing; and (ii) Advertiser owns and will retain all right, title and interest in and to its intellectual property, including all software and technologies related thereto, and any modifications, updates, enhancements and derivative works thereof, and all intellectual property and proprietary rights in and to all of the foregoing. Each Party reserves any and all rights not expressly granted in this Agreement and disclaims all implied licenses, including, without limitation, implied licenses to software, technology, trademarks, copyrights, trade secrets, patents and other intellectual property. Advertiser guarantees that no (intellectual and/or industrial property) rights of any third party are infringed by the Ad Inventory or any other data supplied by Advertiser to Preciso in connection with the Service(s). Advertiser indemnifies Preciso against all claims of third parties in this regard and shall compensate Preciso on demand for damages suffered by Preciso as a consequence and in connection with such an infringement.
Without limiting the generality of the foregoing, Preciso retains all right, title and interest in and to the Service(s), the technology used by Preciso to operate the Service(s), Preciso’s trademarks, and all enhancements made by Preciso to any of the foregoing from time to time, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights in the foregoing. Advertiser may not use the Service(s) except pursuant to the limited rights expressly granted in this Agreement and all rights not expressly granted herein are reserved by Preciso. Advertiser shall not, and shall not attempt to, and will not assist or knowingly permit any third party to: (i) alter, modify, adjust, copy, reproduce, delete, damage, disassemble, decompile, reverse engineer or create derivative works of the Service(s) and/or the Preciso and/or tools of third party suppliers instructed by Preciso, or any portions thereof; or (ii) breach, disable, tamper or interfere with the proper operation of the Service(s) and/or the Preciso and/or tools of third parties, or with any security measures designed to protect the Service(s) and/or the Preciso and/or tools of third party suppliers instructed by Preciso. Advertiser shall compensate Preciso for any damages and costs Preciso may suffer.
Neither Party may use the other Party’s name, logos or trademarks for publicity or general marketing communications purposes without prior written consent; provided that: (i) Preciso may use Advertiser’s name, logos, and trademarks, and may disclose Advertiser’s use of the Service, (a) on Preciso website (including, without limitation, in blog posts on such website), (b) on lists of Advertisers, and (c) in the Services informational materials; and (ii) each of Preciso and its Affiliates may disclose Advertiser’s use of the Service and the fact of Advertiser’s execution of this Agreement.
Advertiser will defend, indemnify, and hold harmless Preciso and its officers, directors, employees and subsidiaries from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party regarding (i) Advertiser’s breach of this Agreement; and (ii) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Advertiser or Ads.
Preciso will not, under any circumstances, be liable to Advertiser for any loss of profits, loss of business (whether direct or indirect) or any indirect, consequential, incidental, punitive, special, or exemplary damages related to this agreement, even if Preciso is apprised of the likelihood of such damages occurring.
Under no circumstances will Preciso’s collective total liability arising out this agreement exceed the total amount paid by Advertiser to Preciso under this agreement in the six months immediately preceding the first event giving rise to the claim (determined as of the date of any final judgment in an action).
Nothing in this agreement shall exclude or limit either Party’s liability for:
Fraud or fraudulent misrepresentation;
Payment of sums properly due and owing to the other in the course of normal performance hereof (if any);
Death or personal injury caused by negligence; or
Matters that cannot be excluded or limited by applicable rules.
In connection with this Agreement, each Party may disclose, or may learn of or have access to, certain Confidential Information owned by the other Party. “Confidential Information” means any information whether oral or written disclosed by a Party to the other Party under this Agreement that is marked or addressed as confidential or should reasonably be considered confidential or proprietary under the circumstances, including, without limitation, know-how and trade secrets, processes, information regarding products, costs, technology, software, personnel, customers, research, development, know-how, financial information, customer and supplier lists, forecasts, and projections, marketing and business plans and opportunities; and existence of any business discussions or negotiations, even if any such information is aggregated or anonymised. Confidential Information also includes the terms of this Agreement.
Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available at the time disclosed; (ii) is or becomes publicly available through no fault of the receiving Party; (iii) is rightfully communicated to the receiving Party by a person(s) or entity(ies) not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto; (v) is independently developed by a Party without use of any Confidential Information of the other Party; or (vi) is approved for release or disclosure by the disclosing Party without restriction.
Except as expressly permitted in this Agreement, each Party shall maintain the Confidential Information of the other Party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information except as required to perform authorised obligations under this Agreement. Each Party shall take all necessary precautions in handling the Confidential Information of the other Party and agrees not to disclose any Confidential Information of the disclosing Party to third parties or to such Party’s employees or contractors, and to limit disclosures on a strict need-to-know basis; provided that each Party shall be liable for the acts or omissions of any party that obtains Confidential Information through such Party. However: (i) a Party may disclose Confidential Information of the other Party pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that, if permitted, such Party gives reasonable notice to the disclosing Party and uses Reasonable Endeavours to provide the disclosing Party with the opportunity to seek a protective order or the equivalent (at the disclosing Party’s expense)); and (ii) Preciso may, in its reasonable discretion, disclose Confidential Information of Advertiser pursuant to a discovery or similar request by another Advertiser. Upon the expiration or termination of this Agreement, each Party will promptly return or destroy all Confidential Information of the other Party in its possession or control.
Each Party is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the Parties. Each Party shall ensure the timely disposition of all of its respective employee matters in connection with its organisation, including, without limitation, employee benefits, insurance, withholdings, taxes, and similar employee-related matters.
If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the Parties.
The failure of either Party to partially or fully exercise any rights or the waiver of either Party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement.
The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement.
Neither Party may assign this Agreement, whether by operation of law or otherwise, to any other person or entity without the prior written consent of the other Party; provided that, without the prior written consent of the other Party: Preciso may assign this Agreement to an Affiliate or otherwise pursuant to a change of control.
Notwithstanding termination hereof, any provisions of this Agreement that by their nature are intended to survive will survive termination.
All notices under this Agreement must be in writing (including, without limitation, email) and sent to the attention of the other Party’s “contact for notices” and, if any, “additional contact” set forth on the signature page hereof. Either Party may change its contact for notices and/or additional contact by providing five (5) business days’ prior notice to the other Party. Notice will be deemed given when delivered.
All questions concerning the validity, interpretation and performance of this Agreement shall be governed by and decided in accordance with the laws of Italy, without regard to any conflicts of laws or principles thereof. Any dispute arising under this Agreement shall be determined by the court, which shall have exclusive jurisdiction, and each of the Parties hereby consents to such exclusive jurisdiction.
The person executing this Agreement for and on behalf of each Party represents and warrants to each other that he/she has been, and is on the Effective Date, duly authorised by all necessary and appropriate action to execute this Agreement.
This Agreement sets forth the entire agreement between the Parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the Parties concerning this subject matter. Except as expressly set forth herein (including, without limitation, with regard to Unilateral Amendments, as set forth in Section 2.3 hereof), no amendment or modification of this Agreement shall be made except by a writing signed by both Parties.