WIFFITI^™ BETA TESTING AND EVALUATION

SOFTWARE LICENSE AGREEMENT

 

THIS BETA TESTING AND EVALUATION SOFTWARE LICENSE AGREEMENT ('Agreement') is entered into by and between LocaModa, Inc., a Delaware corporation with a principal place of business at 363 Highland Avenue, Somerville, MA 02144 ('LocaModa'), and the beta tester, _______________________________ ("Licensee"). LocaModa and Licensee are each sometimes referred to in this Agreement as a "Party" and collectively as the "Parties."

WHEREAS, Licensee desires to obtain from LocaModa and LocaModa desires to grant to Licensee the limited right and license to use the proprietary beta level software program(s) identified in Exhibit A hereto, as amended by LocaModa from time to time (the "Beta Products"), for evaluation and testing purposes only;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, the Parties agree as follows:

1.               License Grant. During the term of this Agreement, LocaModa hereby grants to Licensee the non-exclusive, non-transferable, non-sublicensable limited right and license to use the Beta Products specified in Exhibit A, in any event for evaluation and testing purposes only.

2.               Hosting. The Beta Products will be hosted by LocaModa. The license granted herein shall grant to Licensee the right to use the Beta Products in order to access and use the Wiffiti^™ System (as defined below) and provide access and permission to the end-users thereof to use such System, as contemplated herein.

3.               Licensee's Obligations.

(a)   Download. Licensee shall download and install the Beta Products on its system via download from the LocaModa website, in order to enable its mobile interactivity and access Wiffiti (the "Wiffiti System"), and shall commence testing the functionality of the Beta Products on the Wiffiti System, if applicable at the Location. Licensee shall design its testing efforts to meet the test goals and objectives specified in Exhibit A.

(b)   Feedback. In consideration of the limited license granted hereunder, Licensee shall (i) promptly report to LocaModa in writing any bugs, defects, problems or other errors (collectively, "Errors") discovered by Licensee in the Beta Products and (ii) provide LocaModa with comments and recommendations as to the Beta Products or their functionality.

(c)   Terms of Service. Licensee shall ensure that all Users have been made aware of and agreed to LocaModa's standard Terms of Service, a copy of which are annexed hereto as Exhibit B and made a part hereof (the "Terms of Service"). LocaModa reserves the right at any time during the term of this Agreement to amend or modify the Terms of Service in its sole discretion.

4.               Beta Products Not Intended for Production. Licensee understands and acknowledges that the Beta Products have not been fully tested, may contain Errors, may have incomplete or even no associated documentation, and are not intended for production usage. Accordingly, LocaModa shall not be responsible for or liable to Licensee for any losses, claims, costs, damages, or liabilities of any nature arising from or relating to the performance or non-performance of the Beta Products.

5.               Moderation Services. Content and user moderation is mandatory for public venues, which includes for this purpose embedding a Wiffiti screen within another website. A basic filter option is included in the Beta Product for Licensee's use, but is in no way a substitute for moderation services. LocaModa will not be responsible or liable for directly or indirectly moderating Licensee's use of the Beta Products, or for any costs associated with such moderation.  Licensee will be solely responsible for all aspects of moderation.  Licensee may elect to retain any company or persons for moderation services, provided, however, that prior to launching the Beta Products at any Location, Licensee shall provide proof to LocaModa that it has arranged for adequate moderation services. In no event shall LocaModa be liable in any respect from and after the date the Beta Products become operational for any issues that may arise in connection with the moderation services or lack thereof. Licensee expressly understands and acknowledges that the basic filters included in the Beta Product do not and will not be deemed sufficient as a moderation device, and agrees that it will not rely solely on such filters or hold LocaModa liable for the failure of any such filter to moderate Licensee's Wiffiti screen adequately. LocaModa reserves the right to de-activate any system if it becomes aware of any violation of the Terms of Service as then in effect.

6.               Protection of LocaModa Confidential and Proprietary Information.

(a)   Licensee understands and acknowledges that any business and technical information provided to Licensee by LocaModa in connection with the Beta Products, all modifications and derivative works thereof, test results, and other associated technical, product, and marketing information, constitutes the confidential and proprietary information of LocaModa (collectively, "LocaModa IP"). Licensee's protection of LocaModa IP is essential to this Agreement and is a condition to Licensee's access to and limited use of the Beta Products. During the term of this Agreement and thereafter, Licensee shall retain all LocaModa IP in strict confidence and shall not disclose LocaModa IP to any third party without LocaModa's prior express written consent. Licensee understands and acknowledges that the Beta Products are and/or contain valuable trade secrets of LocaModa. Licensee shall have no right, title, or interest to or in any LocaModa IP except as expressly set forth in this Agreement. Licensee shall limit access to LocaModa IP to those employees and contractors who need access thereto for beta testing purposes and shall notify LocaModa in writing of the name of each Licensee employee and contractor who is granted access to LocaModa IP. Licensee shall ensure that no other Licensee employees or contractors have access to LocaModa IP and that its employees and contractors who are given access to LocaModa IP take appropriate safeguards to protect its confidentiality and use the LocaModa IP that is disclosed to them only for beta testing in accordance with this Agreement.

(b)   Licensee shall notify LocaModa as soon as it becomes aware of any actual or threatened misuse or unauthorized disclosure of any LocaModa IP. Licensee shall, upon LocaModa's request, immediately take all steps necessary to recover any compromised trade secrets disclosed to or placed in the possession of Licensee by virtue of this Agreement.

(c)   Licensee understands and acknowledges that any breach of any of its obligations with respect to confidentiality and use of LocaModa IP is likely to cause or threaten irreparable harm to LocaModa. In the event of any such breach, LocaModa shall be entitled to preliminary and permanent injunctive and other equitable relief to protect its interest as well as money damages, in addition to all other rights and remedies available under applicable law.

7.               Restrictions on Use. The Beta Products shall not be deployed or used in a production environment without LocaModa's prior written consent. Licensee shall not reverse engineer, disassemble, or decompile any Beta Products or any component part. Licensee shall not distribute, rent, lease, or transfer the Beta Products to any third party or use the Beta Products for timesharing, rental, or service bureau purposes. Licensee shall not modify or adapt the Beta Products in whole or in part (including, but not limited to, translating or creating derivative works), except solely to the extent and in a manner explicitly agreed to by LocaModa in writing. Licensee shall not copy or reproduce the Beta Products except as reasonably necessary for inactive backup or archival purposes. Licensee shall not remove any copyright or other proprietary notices from the Beta Products and shall reproduce such notices on all authorized copies or extracts of the Beta Products.

8.               No Support or Upgrade Obligations. LocaModa shall have no obligation to correct Errors or to deliver updates to the Beta Products. LocaModa may, but shall be under no obligation to, provide Licensee with later beta versions of the Beta Products. All later beta versions and updates of the Beta Products, if any, delivered by LocaModa to Licensee hereunder shall be subject to the terms of this Agreement. Upon Licensee's receipt of such later beta versions, if any, Licensee shall immediately cease using the prior version(s) of the Beta Products.

9.               No Representations or Warranty. THE BETA PRODUCTS ARE PROVIDED TO LICENSEE HEREUNDER "AS IS" WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITATION, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, LOCAMODA MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WITH RESPECT TO THE BETA PRODUCT OR ASSOCIATED DOCUMENTATION OR ANY SERVICES OR OTHER SOFTWARE PROVIDED HEREUNDER. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE BETA PRODUCTS SUPPLIED HEREUNDER. THE BETA PRODUCTS CONTAIN PRE-RELEASE CODE, MAY NOT BE FULLY FUNCTIONAL, AND MAY BE SUBSTANTIALLY MODIFIED IN FURTHER DEVELOPMENT. LOCAMODA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE BETA PRODUCTS SHALL MEET LICENSEE'S REQUIREMENTS IN WHOLE OR IN PART OR THAT THE OPERATION OF THE BETA PRODUCTS SHALL BE ERROR-FREE OR UNINTERRUPTED. MOREOVER, LOCAMODA CAN PROVIDE NO ASSURANCE THAT IT WILL EVER PRODUCE OR MAKE AVAILABLE A GENERAL RELEASE VERSION OF THE BETA PRODUCTS.

10.            Limitation of Liability. LOCAMODA SHALL NOT BE LIABLE FOR DAMAGES OF ANY KIND WITH RESPECT TO ANY BETA PRODUCTS, SERVICES OR OTHER SOFTWARE PROVIDED HEREUNDER. IN NO EVENT SHALL LOCAMODA BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, PUNITIVE OR MULTIPLE DAMAGES, DAMAGES FOR LOST PROFITS, LOST BUSINESS REVENUE, OTHER ECONOMIC LOSS, OR ANY LOSS OF RECORDED DATA IN RESPECT OF THE BETA PRODUCTS, EVEN IF LOCAMODA HAS BEEN ADVSED OF THE POSSIBILITY OF SUCH DAMAGES. LOCAMODA DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY MODERATION SERVICES (OR THE LACK THEREOF) THAT ARE REQUIRED TO BE PROVIDED BY LICENSEE.

11.            Compliance with Export Requirements. Licensee understands that LocaModa is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibits export or diversion of certain technical products to certain countries. Licensee shall comply with all export laws and regulations of the United States and other countries ("Export Laws") to assure that neither the Beta Products nor any direct products thereof are exported, directly or indirectly, in violation of such Export Laws, or used for any purpose prohibited by such Export Laws, including, without limitation, nuclear, chemical, or biological weapons production.

12.            Term and Termination; Consequences Thereof.

(a)   The term of this Agreement shall commence on the Effective Date and shall continue for a period of three (3) months, provided that the parties may mutually elect to extend the term.

(b)  Either Party may terminate this Agreement, with or without cause, upon thirty (30) days written notice to the other Party. In addition, LocaModa shall have the right to terminate this Agreement immediately, in its sole discretion, if it determines that Licensee has failed to comply with any aspect of this Agreement.

(c)   Within two (2) days following termination of this Agreement for any reason, Licensee shall destroy or return the Beta Products and any copies of the Beta Products along with all LocaModa IP in its possession, custody, or control. If Licensee elects to destroy the Beta Products and LocaModa IP, it shall send LocaModa a letter signed by the beta tester certifying to such destruction.

13.            No Conversion of Beta Products. If LocaModa publicly releases later versions of software based on the Beta Products ("Software"), upon written notice from LocaModa, Licensee must destroy any and all Beta Products licensed hereunder within thirty (30) days after receipt of such notice. This Agreement does not entitle Licensee to the Software. In order to obtain the Software, Licensee must purchase a Software license. All rights and licenses granted to Licensee for such Software shall be governed by the terms and conditions set forth in LocaModa's then current Software license agreement.

14.            Governing Law and Forum Selection. This Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of law. Licensee consents to the jurisdiction of the federal and state courts located in Massachusetts in connection with any action relating to any dispute arising under or relating to this Agreement. Licensee waives any objection to venue of any such action in such courts and waives any inconvenient forum arguments. BOTH PARTIES WAIVE ANY RIGHT TO JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT.

15.            LocaModa Trademarks. Licensee acknowledges that the names, symbols, trademarks, logos, corporate name, and service marks adopted from time to time by LocaModa to identify its products and services, including, but not limited to, the Beta Products (the "Trademarks"), are owned by LocaModa and that Licensee shall have no rights in such Trademarks.

16.            No Right of Assignment. Licensee shall not assign either this Agreement or any rights, licenses, or obligations hereunder without LocaModa's prior written consent.

17.            Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given if personally delivered or sent by certified or registered mail (return receipt) or confirmed telecopy to the addresses set forth as follows, or such other address as is provided by notice as set forth herein:

If to LocaModa to: LocaModa, Inc.

363 Highland Avenue

Somerville, MA 02144

Attn: Vice President—Business Development

Fax No.: 617.440.6014

 

Notice to Licensee shall be directed to the name and address specified by it in a writing sent to LocaModa at the above address.

EXHIBIT A

Beta Products:

-       ReachPoint^TM, LocaModa's proprietary platform for Wiffiti™

-       Wiffiti™

Hardware:

-       A computer capable of integrating the Beta Products, having the power necessary to run the Wiffiti System, on which Licensee will download the Beta Products necessary to operate within the Wiffiti System.

-       Internet connection, preferably Hardwire.

Test Goals and Objectives:

To provide general and usability feedback to LocaModa on its Wiffiti^™ product.

EXHIBIT B

Terms of Service

Wiffiti^™ is provided by LocaModa, Inc. ("LocaModa"). For information about LocaModa, click www.locamoda.com

LocaModa provides systems for using your mobile phone to communicate with and/or control LocaModa enabled internet-connected, location-based screens ("Location Sites") and LocaModa-enabled websites, including without limitation www.wiffiti.com. Location Sites and LocaModa-enabled websites are collectively known as "LocaModa Services."

LocaModa operates LocaModa Services pursuant to agreements with LocaModa licensees.

LocaModa Services will be subject to the following terms and conditions (the "Terms"). Any new features, or changes to update or improve the current LocaModa Services shall be subject to the Terms unless expressly stated otherwise.

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE LOCAMODA SERVICES. YOUR USE OF THE LOCAMODA SERVICES CONFIRMS YOUR UNCONDITIONAL ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT USE THE LOCAMODA SERVICES.

PERSONAL USE

LocaModa Services are made available for your personal, non-commercial use only. You may not use the LocaModa Services to sell a product or service, or to increase traffic to your Location Site or web site for commercial reasons, such as interactive marketing or advertising sales without a commercial agreement with LocaModa. If you want to make commercial use of the LocaModa Services, you must enter into an agreement with LocaModa to do so in advance. Please contact us for more information.

DEFAMATORY, OFFENSIVE OR ILLEGAL MATERIAL OR CONDUCT

For LocaModa Services that support messaging, you agree not to send content that is defamatory, offensive or illegal. Such conduct would be a breach of these Terms and would result in termination of your ability to use LocaModa Services. LocaModa reserves the right to determine in its sole discretion whether material is defamatory or offensive.

PRIVACY POLICY

By using the LocaModa Services, you acknowledge that you have read and accepted the Privacy Policy contained on our web site. To review the LocaModa Privacy Policy click Privacy Policy

CHANGES IN TERMS AND CONDITIONS

We may modify or terminate our Services from time to time, with or without notice, for any reason, and without liability to you, any user or third party. We reserve the right to modify these Terms from time to time without notice. Please review these Terms from time to time so that you will be apprised of any changes.

MODIFICATION OF THE LOCAMODA SERVICES

LocaModa reserves the right at any time, and from time to time to modify or discontinue, temporarily or permanently, the LocaModa Services (or any part of the LocaModa Services) with or without notice. You agree that LocaModa may terminate or limit your use of any part or all of the LocaModa Services, including access to the LocaModa Services with or without cause, with or without notice, effective immediately, for any reason whatsoever. You agree that LocaModa shall not be liable to you or to any third party for any modification, suspension, limitation or discontinuance of the LocaModa Services.

TRADEMARKS

Certain trademarks, trade names, service marks and logos used or displayed on LocaModa web sites and Location Sites are registered and unregistered trademarks, trade names and service marks of LocaModa or third party owners. Nothing contained on the LocaModa web sites or Location Sites grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos displayed on this Web site without the written permission of LocaModa or such third party owner.

PATENTS

There are patents pending on LocaModa Services. Nothing contained on the LocaModa web sites or Location Sites grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any LocaModa patents other than as required for your personal, non-commercial use of the Services in accordance with these Terms.

DISCLAIMER OF WARRANTIES

LocaModa disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material available or displayed on the LocaModa Services. LocaModa does not endorse any opinions or recommendations made by users of the LocaModa Services. LocaModa disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information or material. LocaModa disclaims any responsibility for any harm resulting from using or accessing any information or material on the Internet or a Location Site through the LocaModa Services.

YOUR USE OF THE LOCAMODA SERVICES IS AT YOUR RISK. THE LOCAMODA SERVICES, AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN THE LOCAMODA SERVICES, ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. LOCAMODA DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. LOCAMODA DISCLAIMS ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE LOCAMODA SERVICES. LOCAMODA DISCLAIMS ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE LOCAMODA SERVICES. LOCAMODA DISCLAIMS ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE LOCAMODA SERVICES OR RECEIVED THROUGH ANY LINKS OR MESSAGES PROVIDED BY THE LOCAMODA SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS OR MESSAGES PROVIDED IN THE LOCAMODA SERVICES.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES SHALL LOCAMODA OR ITS LICENSORS BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF OR RELIANCE ON THE LOCAMODA SERVICES. LOCAMODA SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, OR ANY MATERIAL OR DATA SENT OR RECEIVED. YOU SPECIFICALLY ACKNOWLEDGE THAT LOCAMODA IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL MATERIAL OR CONDUCT OF OTHER USERS OR THIRD PARTIES EVEN IF SUCH MATERIAL IS TRANSLATED TO AND TRANSMITTED BY LOCAMODA, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT, PRODUCTS AND SERVICES ON OR ACCESSED THROUGH THE LOCAMODA SERVICES ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE (EVEN IF LOCAMODA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE LOCAMODA SERVICES, FROM INABILITY TO USE THE LOCAMODA SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE LOCAMODA SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE LOCAMODA SERVICES OR RECEIVED THROUGH ANY LINKS OR MESSAGES PROVIDED IN THE LOCAMODA SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE LOCAMODA SERVICES OR RECEIVED THROUGH ANY LINKS OR MESSAGES PROVIDED IN THE LOCAMODA SERVICES. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE LOCAMODA SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE LOCAMODA SERVICES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.

FORCE MAJEURE

Without limiting the foregoing, under no circumstances shall LocaModa or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

MISCELLANEOUS PROVISIONS

These Terms will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without giving effect to its conflict of laws provisions, and regardless of your actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of the Terms to be unenforceable, the remainder of the Terms of Service will continue in full force and effect. These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms will be effective only if in writing and signed by LocaModa.