MSA

Last Updated: July 25, 2023

This Master Services Agreement (“Agreement”) is a binding agreement between you (“End User” or “you”) and Tocaro Blue, LLC, a Florida limited liability company (“Company”). This Agreement governs your use of the Tocaro Blue hardware and equipment (the “Product”) described in the letter agreement separately entered into by you and the Company (the “Letter Agreement”), which is incorporated herein by reference, and the Company’s mobile application (the “App”). There are two modes of contracting with the Company: (1) in the Technology-as-a-Service model (the “TaaS Model”) you understand that the Product, software, App, use of the Company website and all parts related to the Product (collectively, the “System”) remain the sole property of the Company; or (2) in the Product purchase model (the “Product Purchase Model”), you own the Product but the remaining parts and use of the System remain the sole property of the Company and are accessible on a subscription basis.  The Subscription Fee is the fee set forth in the Letter Agreement that is charged to you monthly by the Company for accessing, transmitting and storing remotely in the “Cloud,” the data collected from the monitoring of the vessel when it is at rest (i.e., in a marina slip or storage facility) or underway (operating by moving through) in a body of water (the “Subscription Fee”).  The Subscription Fee also includes interfacing with the Product by way of utilizing the App from your tablet or mobile phone.

1. Letter Agreement; Cancellation. This Agreement sets forth the terms and conditions for your use of the System and the Product described in your Letter Agreement. BY CLICKING THE [“ACCEPT” BUTTON] YOU (a) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT (i) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (ii) IF END USER IS A CORPORATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF END USER AND BIND END USER TO ITS TERMS.

2. Term; Termination for Convenience. The initial term of this Agreement shall begin on the date set forth in the Letter Agreement, and shall continue for a period of twelve (12) months thereafter, unless otherwise set forth in the Letter Agreement (“Initial Term”). At the end of the Initial Term, the Agreement shall automatically renew at the then current subscription price for additional subsequent terms of twelve (12) months (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless you or Company terminates this Agreement by providing the other with notice of termination thirty (30) days prior to the date of expiration of the then-current term. Notwithstanding the foregoing, if for any reason you are not satisfied with the System, you may terminate this Agreement by written notice to Company within thirty (30) days of the date of the Letter Agreement for a refund of all Initial Fees (as defined in the Letter Agreement). If you have contracted with the Company under the TaaS Model, upon termination of this Agreement for any reason, you must return all Products in good working order at your expense within the thirty (30) days after the effective date of termination.

3. Fees. You agree to pay the Company all fees described in the Letter Agreement, including all recurring monthly fees (together with the Subscription Fee, “Monthly Fees”), and all special installation or customization fees. The Monthly Fees shall be automatically adjusted to the then-current rate at the commencement of each Renewal Term. In the event you do not pay any amount due and owed to the Company within five (5) days of the date due and owed, the Company may immediately (and without notice) suspend your use of the Product and System, including your use of the App. Such suspension by the Company shall in no way waive any other remedy the Company may have under this Agreement, by contract, or at law.

4. Limited Right to Use the Product. The Product and System are licensed, not sold, to you. The license to you is revocable, non-exclusive, worldwide, non-assignable, non-sublicensable, non-transferrable and granted only during the Term. Under this Agreement, you do not acquire any ownership interest in the System, or any other rights thereto, other than to use the Product and System in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers (if any) reserve and shall retain their entire right, title, and interest in and to the Product and System, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. The Product and System are offered and available only to users who are 18 years of age or older.

5. Installation of the Product; Damage to Product. The Product, and components of the Product, may require installation in one or more areas of your vessel/vehicle/asset or motor(s) in order to enable the Product’s functionality. You acknowledge that portions of your vessel/vehicle/asset or motor(s) may be damaged as part of the installation, repair, or removal of the Product, for which you will be solely responsible (including all costs for substantive and cosmetic repairs). You agree not to tamper with the Product or System, nor to adjust, modify, or relocate the Product after installation. In the event of any malfunction or defect, you will promptly notify the Company, and provide the Company access to the Product and your vessel/vehicle/asset. In the event you damage the Product, whether through act or omission, you will promptly notify the Company. At the Company’s option, it may send you a replacement Product for the damaged component, and you will pay for the full costs of the replacement Product and installation/repair; provided, further, you will remain responsible for all Monthly Fees through the remainder of the Term.

6. Update to this Agreement. The Company may update and amend this Agreement, from time to time, notice of which shall be provided to you through the App. You acknowledge and agree that the Company may amend this Agreement, in the sole discretion of the Company, by updating the amended Agreement through the App. To the fullest extent permitted by law, you acknowledge that your agreement to or continued use of the Product or System constitutes consent to all amendments to this Agreement.

7. Obligation to Monitor; Limited Warranty. THE COMPANY DOES NOT GUARANTEE THE PERFORMANCE OF THE SYSTEM OR THE PRODUCT, IN PART OR AS A WHOLE, AND SHALL NOT BE RESPONSIBLE FOR CIRCUMSTANCES OR DAMAGES RESULTING FROM THE PRODUCT’S OR SYSTEM’S INABILITY TO OPERATE OR ANY TYPE OF MALFUNCTION. NEITHER THE COMPANY, THE PRODUCT, NOR THE SYSTEM OFFERS ANY GUARANTEED PROTECTION AGAINST BURGLARY, FIRE, SINKING, COLLISION, DEAD BATTERIES OR OTHER EMERGENCY. THE PRODUCT OR SYSTEM MAY NOT FUNCTION FOR MANY REASONS, INCLUDING BUT NOT LIMITED TO INADEQUATE OR IMPROPER INSTALLATION OR POSITIONING, SENSOR LIMITATIONS, BATTERY PERFORMANCE, WIRELESS SIGNAL INTERRUPTION, INADEQUATE MAINTENANCE, OR INADEQUATE CELL OR SATELLITE PHONE COVERAGE. AS A RESULT, THE COMPANY DOES NOT REPRESENT THAT THE SYSTEM WILL PREVENT PERSONAL INJURY OR PROPERTY DAMAGE, OR IN ALL CASES PROVIDE ADEQUATE WARNING OR PROTECTION. THE PRODUCT AND SYSTEM SHOULD THEREFORE BE CONSIDERED AS ONE OF MANY TOOLS AVAILABLE TO REDUCE THE RISK OF DAMAGE BY BURGLARY, FIRE, SINKING, COLLISION, DEAD BATTERIES OR OTHER EMERGENCIES, SUCH OTHER TOOLS INCLUDE BUT ARE NOT LIMITED TO INSURANCE COVERAGE, FIRE PREVENTION AND EXTINGUISHING DEVICES, AND SPRINKLER SYSTEMS. YOU MUST REGULARLY MAINTAIN YOUR PRODUCTS. IT IS YOUR SOLE RESPONSIBILITY TO REPLACE SENSORS BEFORE THEIR BATTERIES RUN LOW TO ENSURE CONTINUED OPERATION OF THOSE SENSORS. IT IS ALSO YOUR SOLE RESPONSIBILITY TO ENSURE THE SUFFICIENCY OF BATTERIES RELATED TO EVERY PORTION OF THE PRODUCT AND SYSTEM, INCLUDING THE CENTRAL PROCESSING UNIT. ADDITIONALLY, IT IS YOUR SOLE RESPONSIBILITY TO SET PARAMETERS AS TO WHEN ALARMS WILL ACTIVATE BASED ON SENSOR INPUT WITHIN THE SOFTWARE PROVIDED WITH THE PRODUCT. WITH RESPECT TO INTERNATIONAL CUSTOMERS, COMPANY SHALL NOT BE RESPONSIBLE FOR ANY CUSTOMS FEES, DUTIES, TAXES, OR VAT THAT MAY BE DUE. DEALERS, INSTALLERS AND OTHERS SELLING OR LICENSING THE PRODUCT OR SYSTEM ARE NOT AUTHORIZED TO MODIFY THIS WARRANTY OR MAKE ANY ADDITIONAL WARRANTIES THAT ARE BINDING ON THE COMPANY OR ITS AFFILIATES.  

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SYSTEM AND RELATED SERVICES INCLUDING THE PRODUCT IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SYSTEM AND PRODUCT, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PRODUCT OR SYSTEM WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, HARDWARE, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT AND YOUR USE OF OR INABILITY TO USE THE PRODUCT OR SYSTEM FOR PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, LOSS OF USE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

IN THE TaaS MODEL THE COMPANY OWNS THE PRODUCT AND WILL REPLACE ANY INOPERABLE COMPONENTS WITHOUT ADDITIONAL CHARGES TO YOU UNLESS THE INOPERABLE COMPONENTS ARE DAMAGED BY NEGLIGENT USE, FROM EXPOSURE TO INCLEMENT CONDITIONS SUCH AS STORMS, HURRICANES, TORNADOES, OR DAMAGE FROM UNQUALIFIED INSTALLATION BY YOU OR A THIRD PARTY OR MAINTENANCE PERSONNEL IN WHICH CASE YOU WILL PAY FOR THE REPLACEMENT OF INOPERABLE COMPONENTS.

IN THE PRODUCT PURCHASE MODEL YOU OWN THE PRODUCT. IF YOU HAVE PURCHASED THE PRODUCT UNDER THE PRODUCT PURCHASE MODEL, COMPANY WARRANTS THAT THE PRODUCT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE FOR TWELVE (12) MONTHS FROM THE DATE OF SHIPMENT. YOU MUST NOTIFY COMPANY IN WRITING OF ANY NON-CONFORMANCE WITH THIS WARRANTY PRIOR TO THE EXPIRATION OF THE WARRANTY PERIOD. IN THE EVENT THAT COMPANY DETERMINES THE PRODUCT IS NON-CONFORMING, COMPANY SHALL, AT ITS OPTION, REPAIR, REPLACE OR PROVIDE A REFUND OF THE PURCHASE PRICE OF THE PRODUCT. THE FOREGOING REMEDIES ARE YOUR SOLE REMEDY, AND COMPANY’S EXCLUSIVE LIABILITY, FOR ANY NON-CONFORMANCE WITH THE FOREGOING WARRANTY. THE FOREGOING WARRANTY SHALL NOT APPLY TO DAMAGE CAUSED BY NEGLIGENT USE, EXPOSURE TO INCLEMENT CONDITIONS SUCH AS STORMS, HURRICANES, TORNADOES, OR DAMAGE FROM UNQUALIFIED INSTALLATION BY YOU OR A THIRD PARTY OR MAINTENANCE PERSONNEL.

NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY IN THIS AGREEMENT, THE COMPANY’S MAXIMUM LIABILITY RELATED TO THE PRODUCT OR SYSTEM, AND UNDER THIS AGREEMENT (INCLUDING THE LETTER AGREEMENT) IS STRICTLY LIMITED TO THE AMOUNT PAID BY YOU (1) UNDER THE TaaS MODEL, TO THE COMPANY DURING THE PRECEDING SIX MONTH PERIOD OR (2) UNDER THE PRODUCT PURCHASE MODEL, THE PURCHASE PRICE OF THE PRODUCT PAID TO THE COMPANY BY YOU.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Indemnification. YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE COMPANY AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING FROM OR RELATING TO YOUR ACTS, OMISSIONS, USE, OR MISUSE OF THE PRODUCT, SYSTEM, WEBSITE, APP OR RELATED SERVICES INCLUDING ANY MONITORING FEATURE, OR YOUR ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT.

9. Third-Party Materials. The Product and System may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that the Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

10. Your Termination for Cause. In addition to your ability to terminate this Agreement for convenience pursuant to Section 2 above (subject to the requirements described in Section 2), you may terminate this Agreement for cause if upon a material breach of this Agreement by the Company, notice of which shall be provided to the Company by you, the Company fails to initiate commercially reasonable efforts (in the Company’s discretion) to cure the material breach within thirty (30) days after notice from you. For purposes of the preceding sentence, a “material breach” by the Company shall be limited to: (i) its willful suspension of the Product or System to you, provided you have paid all amounts due and owed, and are not in breach or in default under this Agreement, and (ii) the App and System are unavailable for at least fourteen (14) consecutive days, unless the unavailability results from, or is related to, a force majeure event, cyber hack (including social engineered hack), act of war, or labor dispute. In the event you terminate this Agreement pursuant to this Section 10, you will no longer owe any Monthly Fees; provided, however, that you will pay all other amounts owed to the Company and, if you have contracted with the Company under the TaaS Model, return the Products to the Company in good, working condition.

11. The Company’s Termination for Cause. The Company may terminate this Agreement at any time without notice if it ceases to support the System, Product, or App, or if it discontinues any related service, which the Company may do in its sole discretion. The Company may also terminate this Agreement immediately upon your breach of this Agreement, or if you fail to pay any amount owed to the Company within ten (10) days after notice from the Company that such amount is due and owed. Such notice may be provided via email. Without limiting the foregoing, the Company may immediately terminate this Agreement for breach if you take the following acts, or seek to perform any of the following: (a) copy the App, Product, or System, except as expressly permitted by this Agreement; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of any Company property; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App, System, Product, website or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Company’s property, including any copy thereof; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Product, System, or App, or any features or functionality of the same, to any third party for any reason, including by making the System or App available on a network where it is capable of being accessed by more than one device at any time; (f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Product, System, App, or website; (g) use the Product, System, App, or website in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including any power generation systems, aircraft navigation or communication systems, air traffic control systems, or any other transport management systems, safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire, or other safety response systems, and military or aerospace applications, weapons systems, or environments; or (h) breach any term or condition of this Agreement or the Terms of Use for the Company’s website.

In the event the Company terminates this Agreement pursuant to this Section 11, you will be responsible for: (i) all losses and damages that may be incurred by the Company; (ii) all costs and expenses incurred by the Company relating to it seeking to enforce its rights under this Agreement (including reasonable attorneys’ fees); (iii) all Monthly Fees remaining prior to the end of the current Term; (iv) the retail value of all Company owned Products not returned by you to the Company in good, working condition within three business days after termination; and (v) all other amounts owed to the Company by you. All amounts described in the preceding sentence shall be due and owed to the Company within three days following the effective date of termination.

12. Post Termination Obligation; Company Property. Following termination or expiration of this Agreement, for any reason, you agree to: (i) pay the Company all amounts owed it under this Agreement, including fees and costs incurred prior to the effective date of termination, (ii) promptly (within three business days) return all Products to the Company in good, working condition (or pay the retail value for all such Products), (iii) delete the App and return all other Company property (including data, information, and records) in your possession, and (iv) cease to use all elements and components of the Product and System. Without limiting the foregoing, you agree and acknowledge all information, data, intellectual property, derivative works, records, trade secrets, confidential information, and proprietary information related to the Product, System, App, or website, or your use of any of the same shall solely belong to the Company; provided, to the extent applicable law determines you have any right or ownership interest, you agree such right and ownership interest is hereby irrevocably assigned and transferred to the Company—but if such assignment or transfer is prohibited by applicable law, then you hereby grant the Company an irrevocable, exclusive, worldwide, royalty-free, assignable license to all of the same. 

13. Your Data. To the fullest extent permitted by law, you agree that the Company may fully and freely use, access, and disclose any and all of your data or information generated or created by you related to your use of the Product, System, App, or Company website, or your contribution or input of such data or information, including without limitation for the Company’s purpose of data aggregation and improvement of its operations and systems, in any manner permitted by the Privacy Policy (as defined below). The rights granted to the Company in this Section 13, and in Section 12, shall survive termination or expiration of this Agreement.

14. Use of App and Website. The Product and System may provide you with access to our App and website. You acknowledge that the use of the Product, System, App and Company website are subject to this Agreement and the additional terms and conditions set forth in Company’s Privacy Policy, available at https://tocaroblue.com/privacypolicy/ (“Privacy Policy”) and the Terms of Use for the Company’s website, available at https://tocaroblue.com/terms-of-use/ (“Website Terms of Use”), and you hereby agree to the terms of the Privacy Policy and Terms of Use. In the event of any conflict between this Agreement and the Privacy Policy or the Website Terms of Use, then the terms of the Privacy Policy shall control, followed by the terms of this Agreement.

15. Applicable Law. Your failure to use the Product or System in compliance with all applicable laws constitutes a material breach of this Agreement.

16. Updates. The Company may from time to time in its sole discretion develop and provide Product or System updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features. Updates may also modify or delete in their entirety certain features, data, and functionality. You agree that the Company has no obligation to provide any updates or to continue to provide or enable any particular features, data storage or functionality.

You must promptly download and install all updates, and you acknowledge and agree that the Product or System or portions thereof may not properly operate should you fail to do so. You further agree that all updates will be deemed part of the Product or System and be subject to all terms and conditions of this Agreement.
17. Export Regulation. The Product or System may be subject to United States export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Product or System to, or make the Product or System accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Product or System available outside the United States.

18. US Government Rights. The System is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the System as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

19. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
20. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Pensacola and Escambia County, Florida. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

21. Arbitration. In the event of any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement, the parties agree that a resolution shall be determined exclusively by arbitration in Pensacola, Florida before one arbitrator, who shall be a lawyer with at least ten years’ experience as an arbitrator. The arbitrator shall have the authority to award costs and fees to the prevailing party.

22. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT OR SYSTEM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

23. Entire Agreement. This Agreement, the Letter Agreement, the Privacy Policy and the Website Terms of Use constitute the entire agreement between you and the Company with respect to the System, and related services including the Product, and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the System, and related services including the Product.

24. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.