EXHIBIT 10.19
AT&T INTERNET SERVICES
GENERAL AGREEMENT
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Customer Name ("Customer") AT&T
Internet Services Contract Management
Lois, Inc.
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Address Address
105 north 28th 55 Corporate Drive, Room - 32B15
van buren, ar 72956 Bridgewater, NJ 08807
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This Agreement consists of this Cover Sheet, the attached General Terms and
Conditions and all Service Attachments ("Attachments") indicated below
(collectively, this "Agreement"). In the event of conflict between the General
Terms and Conditions and any Attachment, the Attachment shall take precedence.
This Agreement shall become effective when signed by both parties and shall
continue in effect for as long as any Attachment remains in effect, unless
earlier terminated in accordance with the provisions of the Agreement. The term
of each Attachment is stated in the Attachment.
CAPTION>
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SERVICE(S) ORDERED
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[_] AT&T WorldNet(R) Managed Internet Service All of the following services must be accompanied with an AT&T Web
[_] AT&T WorldNet(R) Managed Internet Service - Burstable Site Services Attachment
Service [_] AT&T Easy World Wide Web(R) Service ("EW3")
[_] AT&T WorldNet(R) Enhanced Fax Service [_] AT&T Easy World Wide Web(R) Service ("EW3" Basic)
[_] AT&T WorldNet(R) Asynchronous Service [_] AT&T Easy World Wide Web(R) Service ("EW3" Basic for Alternate
[_] AT&T WorldNet(R) Virtual Private Network Service Channel)
[_] AT&T WorldNet(R) Business Dial Service [_] AT&T Enhanced Web Development Package ("EWDP")
[_] AT&T Dedicated Hosting Service - Level 1
[_] AT&T Dedicated Hosting Service - Level 2
[_] AT&T SecureBuy(SM) Service
[_] AT&T interactiveAnswers(SM) Service
[_] AT&T Web Site Service eCommerce Suite
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CUSTOMER'S SIGNATURE BELOW ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS
EACH OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREES TO BE BOUND BY
THEM.
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CUSTOMER: AT&T CORP.
By: /s/ Kyle Parker By: /s/ Yolanda Wilson
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(Authorized Signature) (Authorized Signature)
Kyle Parker Yolanda Wilson
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(Typed or Printed Name) (Typed or Printed Name)
C.E.O. Contract Manager
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(Title) (Title)
12-8-98 12/21/98
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(Date) (Date)
501-471-5581
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(Telephone #)
SALES TRACKING INFORMATION
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AT&T SALES REPRESENTATIVE INFORMATION AT&T AUTHORIZED AGENT INFORMATION
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BRANCH MANAGER: Joe Houawcak NAME:
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NAME: Joice Vinsant COMPANY NAME:
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PHONE NUMBER: 501-474-6520 PHONE NUMBER:
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E-MAIL: Jvinsant@ATT.com E-MAIL:
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ADDRESS: 7600 I 30 ADDRESS:
Little Rock, AR 72209
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SALES STRATA: Commercial AGENT CODE:
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SALES REGION: Southern
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AT&T INTERNET SERVICES
GENERAL AGREEMENT
The following terms and conditions shall apply to the provisions and use of the
products and services (individually a "Service") provided pursuant to the
Attachments.
1.0 DEFINITIONS
1.1 "Affiliate" of a party means any entity that controls, is controlled by or
is under common control with such party, and, in the case of AT&T, also means
any entity which AT&T has authorized under contract to offer any Service or part
of any Service.
1.2 "Content" means information made available, displayed or transmitted in
connection with a Service (including, without limitation, information made
available by means of an HTML, "hot link", a third party posting or similar
means) including all trademarks, service marks and domain names contained
therein as well as the contents of any bulletin boards or chat forums and, all
updates, upgrades, modifications and other versions of any of the foregoing.
1.3 "User" means anyone whom CUSTOMER, allows, by action or omission, to use
or access any Service including, without limitation, CUSTOMER'S Affiliates.
2.0 CHARGES AND BILLING
2.1 CUSTOMER shall pay AT&T for its and Users' use of the Services at the rates
and charges specified in the Attachments, without deductions, setoff or delay
for any reason, including circumstances arising under any other Attachment.
Charges set forth in the Attachments are exclusive of any applicable taxes.
CUSTOMER may be required to pay a deposit before Services are provided or as
specified in Section 10.1.
2.2 CUSTOMER shall pay all shipping charges, taxes (excluding those on AT&T's
net income (and other similar charges (and any related interest and penalties)
relating to the sale, transfer of ownership, installation, license, use or
provision of the Services, except to the extent a valid tax exemption
certificates is provided by CUSTOMER to AT&T prior to the delivery of Services.
2.3 Payment is due within 30 days after the date of invoice and shall refer to
the invoice number. Restrictive endorsements or other statements on checks
accepted by AT&T will not apply. CUSTOMER shall reimburse AT&T for all costs
(including reasonable attorney fees) associated with collecting delinquent or
dishonored payments. At AT&T's option, interest charges may be added to any
past due amounts at the lower of 1.5% per month or the maximum rate allowed by
law.
3.0 RESPONSIBILITIES OF THE PARTIES
3.1 AT&T shall provide Services to CUSTOMER in accordance with the terms and
conditions and at the charges specified in this Agreement.
3.2 CUSTOMER represents and warrants that its and User's use of the Services
and the Content will at all times comply with all applicable laws, regulations
and written and electronic instructions for use. CUSTOMER shall promptly
resolve all claims by anyone that CUSTOMER'S or Users' use or Content violate
any laws or regulations. AT&T reserves the right to terminate affected
Attachments, suspend affected Services and/or remove CUSTOMER or Users' Content
from the Services if AT&T (i) determines, in its sole discretion, that AT&T's
public image, reputation or goodwill will be adversely affected or that such use
or Content does not conform with the requirements set forth in this Agreement,
or that AT&T could be subject to liability; or (ii) receives notice from anyone
that CUSTOMER's or Users' use or Content may violate any laws or regulations.
AT&T's actions or inaction under this Section shall not constitute review or
approval of CUSTOMER's or Users' use or Content.
3.3 AT&T grants to CUSTOMER the right to permit Users to access and use the
Services, provided that CUSTOMER shall remain solely responsible for such access
and use and shall defend, indemnify and hold harmless AT&T from and against all
Damages (including, without limitation, reasonable attorney fees), whether or
not arising out of third-party claims and regardless of the form of action,
whether in contract, tort, strict liability or otherwise, concerning or relating
to: any noncompliance by CUSTOMER or Users with any provision of this
Agreement; negligent acts or omissions by CUSTOMER or Users; CUSTOMER's or
Users' Content or use of the Services (including, without limitation,
infringement of any personal or property rights); and claims by any User or
business affiliate of Customer relating to any Service failure, defect or
outage.
3.4 Except to the extent required by law or expressly permitted in an
Attachment, CUSTOMER may not resell any Services.
4.0 USE OF INFORMATION
4.1 All documentation, technical information, Software, business information,
proposals for new Services or other materials that are disclosed by either party
to the other in the course of performing this Agreement shall be considered
proprietary information ("INFORMATION") of the disclosing party, provided such
information is in written or other tangible form that is clearly marked as
"proprietary" or "confidential", or is disclosed orally and is both identified
as proprietary or confidential at the time of disclosure and summarized in a
writing so marked within 15 business days following the oral disclosure. This
Agreement shall be deemed to be AT&T INFORMATION.
4.2 Each party's INFORMATION shall, for a period of 3 years following its
disclosure (except in the case of Software, for an indefinite period): (i) be
held in confidence; (ii) be used only for purposes of performing this Agreement
and using the Services; and, (iii) not be disclosed except to the receiving
party's employees, agents and contractors having a need-to-know (provided that
such agents and contractors are not direct AT&T competitors and agree in writing
to use and disclosure restrictions as restrictive as this Article 4) or to the
extent required by law.
4.3 The restrictions in Section 4.2 shall not apply to any information that:
(i) is independently developed by the receiving party; or (ii) is lawfully
received by the receiving party free of any obligation to keep it confidential;
or (iii) becomes generally available to the public other than by breach of this
Agreement.
4.4 CUSTOMER authorizes AT&T to: (i) monitor and record calls and
transmissions using the Services and callas or transmissions to AT&T concerning
the Services in order to detect fraud, check quality and operate, maintain and
repair the Services; and (ii) disclose such information to the extent AT&T deems
it is legally required.
5.0 PUBLICITY AND MARKS
5.1 No public statements or announcements relating to this Agreement shall be
issued by either party without the prior written consent of the other party.
5.2 Each party agrees not to display or use, in advertising or otherwise, any
of the other party's trade names, logos, trademarks, service marks or other
indicia or origin (collectively, "Marks") without the other party's prior
written consent, provided that such consent may be revoked at any time and
consent to use AT&T's Marks can only be granted by the AT&T Vice President,
Corporate Identity.
6.0 SOFTWARE
6.1 AT&T grants CUSTOMER a personal, non-transferable and non-exclusive license
(without the right to sublicense) to use, in object code form, all software and
associated written and electronic documentation and data furnished pursuant to
the Attachments (collectively, the "Software"), solely in connection with the
Services and solely in accordance with applicable written and electronic
documentation. CUSTOMER will refrain from taking any steps to reverse assemble,
reverse compile or otherwise derive a source code version of the Software. The
Software shall at all times remain the sole and exclusive property of AT&T or
its suppliers. "Third-Party Software" means Software that bears a copyright
notice of a third party. "AT&T Software" means all Software other than Third-
Party Software."
6.2 CUSTOMER shall not copy or download the Software, except to the extent
expressly provided otherwise in the applicable documentation for the Service or
in a writing signed by AT&T. Any copy must contain the same copyright notices
and proprietary markings as the original Software.
6.3 CUSTOMER shall ensure that its employees and Users comply with the terms
and conditions of this Article 6.
6.4 The term of the license granted hereunder shall be coterminous with the
Attachment which covers the Software.
6.5 CUSTOMER agrees to comply with any additional restrictions that are
provided with any Third-Party Software.
6.6 AT&T warrants that all AT&T Software will perform substantially in
accordance with its applicable published specifications during a warranty period
of ninety (90) days beginning on the date of delivery of the AT&T Software to
CUSTOMER. If CUSTOMER returns to AT&T, within the 90-day warranty period, any
AT&T Software that does not comply with this warranty, then AT&T, at its option,
will either repair or replace the portion of the AT&T Software that does not
comply or refund the amount paid by CUSTOMER for such failed or defective AT&T
Software. This warranty will apply only if the AT&T Software is used in
accordance with the terms of this Agreement and is not altered, modified or
tampered with by CUSTOMER or Users.
7.0 DISPUTE RESOLUTION
7.1 Except as described in Section 7.3, all disputes, controversies or claims,
whether based in contract, tort, statute, fraud, misrepresentation or any other
legal theory, arising out of or relating to this Agreement and the Services
provided under this Agreement (collectively, "Disputes"), not resolved amicably
between the parties shall be settled by final and binding arbitration conducted
in New York or other mutually agreed location by one neutral arbitrator, in
accordance with this Agreement and the then current Commercial Arbitration Rules
of the American Arbitrator Association ("AAA"). The arbitrability of Disputes
shall also be determined by the arbitrator. Each party shall bear its own
expenses and the parties shall equally share the filing and other administrative
fees of the AAA and the expenses of the arbitrator. Any award of the arbitrator
shall be in writing and shall state the reasons for the award. Judgment upon an
award may be entered in any Court having competent jurisdiction. The arbitrator
shall not have the power to award any damages in excess of the liability
limitations set forth in this Agreement, including any Attachment. The
arbitrator shall not have the power to order pre-hearing discovery of documents
or the taking of depositions, but may compel attendance of witnesses and the
production of documents at the
AT&T INTERNET SERVICES
GENERAL AGREEMENT
hearing. The Federal Arbitration Act, 9 U.S.C. Sections 1 to 14, shall govern
the interpretation and enforcement of this Section 7.1.
7.2 The parties, their representatives and participants and the arbitrator
shall hold the existence, content and result of the arbitration in confidence,
except to the limited extent necessary to enforce a final settlement agreement
or to obtain or enforce a judgment on an arbitration decision and award.
7.3 Disputes relating to: (i) matters that are subject to the primary
jurisdiction of the FCC, a state public utility commission or other
administrative agency, or (ii) non-compliance with Articles 4, 5 or 6 of this
Agreement, a violation of which would cause irreparable harm for which damages
would be inadequate; or (iii) billing or payment of charges under an Attachment;
or (iv) Software, technology or other intellectual property; shall be exempt
from the binding arbitration requirement described in Section 7.1. As to
Disputes described in this Section 7.3, the claimant reserves the right to seek
relief from an administrative agency having primary jurisdiction or a court of
competent jurisdiction, as appropriate.
8.0 FORCE MAJEURE
Neither AT&T nor Customer shall be liable for any delay, failure in performance,
loss or damage due to: fire, explosion, power blackout, earthquake, flood, the
elements, strike, embargo, labor disputes, acts of civil or military authority,
war, acts of God, acts or omissions of carriers, or suppliers, acts of
regulatory or governmental agencies, or other causes beyond such party's
reasonable control, whether or not similar to the foregoing, except that
CUSTOMERS's obligation to pay for charges incurred shall not be excused.
9.0 LIMITATIONS OF LIABILITY
9.1 For purposes of Section 3.3, and Articles 8 and 9 and all other exclusive
remedies and limitations of liability set forth in this Agreement or any
Attachment, "AT&T" shall be defined as AT&T, its Affiliates, and its and their
employees, directors, officers, agents, representatives, subcontractors,
interconnection service providers and suppliers; and "Damages" will refer
collectively to all injury, damage, liability, loss, penalty, interest and
expense incurred.
9.2 AT&T'S ENTIRE LIABILITY, AND CUSTOMER'S EXCLUSIVE REMEDIES AGAINST AT&T,
FOR ANY DAMAGES CAUSED BY ANY SERVICE DEFECT OR FAILURE, OR FOR OTHER CLAIMS
ARISING IN CONNECTION WITH ANY SERVICE OR THIS AGREEMENT SHALL BE:
(i) FOR BODILY INJURY OR DEATH TO ANY PERSON NEGLIGENTLY CAUSED BY AT&T,
CUSTOMER'S RIGHT TO PROVEN DIRECT DAMAGES;
(ii) FOR DEFECTS OR FAILURES OF SOFTWARE, THE REMEDIES SET FORTH IN SECTION
6.6;
(iii) FOR DAMAGES OTHER THAN THOSE SET FORTH ABOVE AND NOT EXCLUDED UNDER THIS
AGREEMENT OR ANY ATTACHMENT, AT&T'S LIABILITY SHALL BE LIMITED TO PROVEN DIRECT
DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY TWELVE-MONTH
PERIOD) THE TOTAL NET PAYMENTS MADE BY CUSTOMER FOR THE APPLICABLE SERVICE UNDER
THE APPLICABLE ATTACHMENT DURING THE 12 MONTHS PRECEDING THE MONTH IN WHICH THE
DAMAGE OCCURRED.
9.3 IN NO EVENT SHALL AT&T BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OF ANY KIND
OR INCREASED COST OF OPERATIONS, WHETHER OR NOT AT&T HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9.4 AT&T ALSO SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING
TO: SERVICE INTERRUPTIONS; LOST OR ALTERED MESSAGES OR TRANSMISSIONS;
INTEROPERABILITY, INTERACTION OR INTERCONNECTION PROBLEMS WITH APPLICATIONS,
EQUIPMENT SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR,
UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF CUSTOMER'S,
USERS' OR THIRD PARTIES' APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION,
NETWORK OR SYSTEMS.
9.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AT&T MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY
ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. AT&T DOES
NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE
SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES WILL PREVENT
UNAUTHORIZED ACCESS BY THIRD PARTIES. AT&T DOES NOT AUTHORIZE ANYONE TO MAKE A
WARRANTY OF ANY KIND ON ITS BEHALF AND CUSTOMER SHOULD NOT RELY ON ANYONE MAKING
SUCH STATEMENTS.
9.6 THE LIMITATIONS OF LIABILITY SET FORTH IN THIS ARTICLE 9 AND IN ANY
ATTACHMENT SHALL APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE; AND (ii) WHETHER OR NOT DAMAGES
WERE FORESEEABLE. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE FAILURE OF ANY
EXCLUSIVE REMEDIES PROVIDED IN THIS AGREEMENT.
9.7 This Agreement does not expressly or implicitly provide any third party
(including Users) with any remedy, claim, liability, reimbursement, cause of
action or other right or privilege.
10.0 TERMINATION
10.1 If a party fails to perform or observe any material term or condition of
this Agreement and the failure continues unremedied for 30 days after receipt of
written notice, the other party may terminate for cause any Attachment affected
by the breach. If CUSTOMER fails to pay any charge when due and such failure
continues unremedied for ten days after written notice by AT&T, AT&T may, at its
option, terminate affected Attachments, suspend Service under affected
Attachments, require a deposit under any or all Attachments as a condition of
continuing to provide Services and/or terminate this entire Agreement.
10.2 An Attachment may be terminated immediately upon written notice by: (i)
either party if the other party has violated the other's Marks, becomes
insolvent or involved in a liquidation or termination of its business, files a
bankruptcy petition, has an involuntary bankruptcy petition filed against it (if
not dismissed within 30 days of filing), becomes adjudicated bankrupt, or
becomes involved in an assignment for the benefit of its creditors; (ii) AT&T
pursuant to Section 3.2 or in the event of a material breach of any provision of
Article 6; or (iii) either party if mandated by governmental or regulatory
authority.
10.3 CUSTOMER shall be responsible for payment of all charges under a
terminated Attachment incurred as of the effective date of termination. CUSTOMER
shall also be liable to AT&T for termination Charges, as specified in a
terminated Attachment, in the event that AT&T terminates under Section 10.1,
10.2(i) or (ii), or CUSTOMER terminates without cause
10.4 Termination by either party of an Attachment does not waive any other
rights or remedies it may have under this Agreement.
10.5 Except as provided under Section 10.1, termination or suspension of an
Attachment shall not affect the Services provided or the rights and obligations
of the parties under any other Attachment.
11. GENERAL PROVISIONS
11.1 Any supplement, modification or waiver of any provision of this Agreement
or any Attachment must be in writing and signed by authorized representatives of
both parties.
11.2 This Agreement may not be assigned by either party without the prior
written consent of the other, except that AT&T may, without CUSTOMER's consent,
assign this Agreement or any Attachment to a present or future Affiliate or
successor and may assign its right to receive payments. AT&T may subcontract
work to be performed under this Agreement, but shall retain responsibility for
all such work.
11.3 If any portion of this Agreement is found to be invalid or unenforceable,
the remaining provisions shall remain in effect and the parties shall promptly
begin negotiations to replace invalid or unenforceable portions that are
essential parts of this Agreement.
11.4 Any initial demand for arbitration pursuant to Section 7.1 and any legal
action arising in connection with this Agreement must begin within two years
after the cause of action arises.
11.5 All notices under this Agreement shall be in writing and either mailed by
certified or registered mail, postage prepaid return receipt requested, sent by
express courier or hand delivered and addressed to each party at the address set
forth on the front of this Agreement or, if the notice relates to a specific
Attachment, the address set forth in such Attachment, or, in any case, such
other address a party designates in writing.
11.6 The construction, interpretation and performance of this Agreement shall
be governed by the substantive law of the State of New York, excluding its
choice of law rules and the United Nations Convention on Contracts for
International Sale of Goods.
11.7 The respective obligations of CUSTOMER and AT&T which by their nature
would continue beyond the termination or expiration of this Agreement or any
Attachment shall survive termination or expiration of this Agreement or any
Attachment.
11.8 With respect to any indemnification obligations under this Agreement: (i)
the indemnified party will notify the indemnifying party in writing promptly
upon learning of any claim or suit for which indemnification may be sought;
provided that failure to do so shall not affect the indemnity except to the
extent the indemnifying party is prejudiced thereby; (ii) the indemnifying party
shall have control of the defense or settlement, provided that the indemnified
party shall have the right to participate in such defense or settlement with
counsel of its own selection and at its sole expense; (iii) the indemnified
party shall
AT&T INTERNET SERVICES
GENERAL AGREEMENT
reasonably cooperate with the defense, at the indemnifying party's expense; and
(iv) the indemnifying part shall not, without the indemnified party's express
prior written consent, make any admission or stipulation, or consent to any
settlement agreement or injunctive or non-monetary relief which could adversely
affect any indemnified party.
11.9 THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH
RESPECT TO THE SERVICES TO BE PROVIDED HEREUNDER. THIS AGREEMENT SUPERSEDES ALL
PRIOR AGREEMENTS, PROPOSALS, REPRESENTATIONS, STATEMENTS OR UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, CONCERNING SUCH SERVICES OR THE RIGHTS AND OBLIGATIONS
RELATING TO THOSE SERVICES. THIS AGREEMENT SHALL NOT BE CONTRADICTED, EXPLAINED
OR SUPPLEMENTED BY ANY WRITTEN OR ORAL STATEMENTS, PROPOSALS, REPRESENTATIONS,
ADVERTISEMENTS, SERVICE DESCRIPTIONS OR CUSTOMER PURCHASE ORDER FORMS NOT
EXPRESSLY SET FORTH IN THIS AGREEMENT OR AN ATTACHMENT.