TERMS AND CONDITIONS FOR INDEPENDENT CONTRACTOR SERVICES
Date Last Updated: June 24, 2021
The Terms and Conditions below govern Contractor’s provision of independent contractor services to 360. Capitalized terms used in these Terms and Conditions but not defined below are defined in the Independent Contractor Services Agreement or other agreement with 360 governing Contractor’s provision of independent contractor services to 360 and that references and incorporates these Terms and Conditions (together, referred to as the “Agreement”).
Section 1. Engagement.
Contractor will render the services set forth in each SOW accepted by Contractor by the completion dates set forth in such SOW in accordance with the terms and conditions of the Agreement, unless otherwise specifically set forth in such SOW. The work performed by Contractor in accordance with the Agreement is referred to in the Agreement as the “Services.”
2.1 Relationship. The parties intend that the relationship between them created by the Agreement is one of independent contractor. No agent, employee, or servant, if any, of Contractor, nor Contractor itself, will be or will be deemed to be an agent, employee, or servant of 360 or any of 360’s affiliates. Contractor is and will be the sole employer and principal of any and all persons who perform Services under the Agreement. The Agreement may not be construed to create any association, partnership, or joint venture relationship between Contractor and 360 or any of 360’s affiliates. Contractor does not have the authority, and Contractor will not hold itself out as having the authority, to bind 360, and Contractor will not make any agreements or representations on 360’s behalf.
2.2 No Supervision. 360 will have no power or authority to direct, supervise, or control Contractor with respect to the means, manner, or method of performance of the Services under the Agreement, and Contractor, in the exercise of its independent judgment, will select the means, manner, and method of performance thereof. Unless otherwise set forth in an SOW, Contractor will furnish, at Contractor’s own expense, the equipment, supplies, and other materials necessary or appropriate to perform the Services. Contractor is responsible to 360 only for the results to be obtained, but the Services performed under the Agreement must meet with the approval of 360, and 360 will be entitled to make inquiry or inspection to the extent necessary to ensure such results.
2.3 No Coverage or Benefits. 360 will not provide to Contractor or Contractor’s agents, employees, or servants any social security, unemployment compensation, disability insurance, workers’ compensation, or similar coverage, or any other statutory benefit. It is Contractor’s sole responsibility to provide workers’ compensation coverage for Contractor and Contractor’s agents, employees, and servants, if any, or otherwise to determine to be without such coverage. Contractor and its agents, employees, and servants will not be entitled to any fringe benefits or to participate in any of 360’s employee benefit plans, programs, or arrangements contributed to or sponsored by 360 or any affiliated entity for the benefit of 360’s employees, including any pension or retirement plan, profit-sharing plan, welfare-benefit plan, tax-sheltered annuity plan, discount stock purchase plan, medical, dental, or vision plan, personnel policy, bonus plan or arrangement, incentive award plan or arrangement, vacation policy, severance pay plan, policy, or agreement, deferred compensation agreement or arrangement, executive compensation or supplemental income arrangement, employment agreement, or other employee benefit plan, agreement, arrangement, program, practice, or understanding. Furthermore, 360 will not be responsible for providing health or medical insurance or broad-form liability insurance for Contractor or Contractor’s agents, employees, or servants.
Section 3. Services.
3.1 Manner of Performance. The Agreement controls and governs the Services performed by Contractor and defines the rights and obligations of 360 and Contractor during the term of the Agreement. Contractor will furnish the Services diligently, professionally, and in a manner consistent with the good public image of 360 and 360’s affiliates.
3.2 Evaluation and Acceptance. With respect to Services that are specified in an SOW as deliverables to 360, 360 will have the right to evaluate each deliverable for a reasonable period of time after receipt, and for any deliverable or portion thereof that is reasonably found not to be acceptable, 360 may provide Contractor with the details necessary for correction of such deliverable, and Contractor will promptly perform the necessary modifications and resubmit the updated portions to 360 for acceptance. This process may be repeated until 360 accepts the deliverable. There will be no additional charge for such correction unless the parties otherwise agree in writing.
3.3 Reports. Contractor will provide such reports and information regarding the Services, orally or in writing, as 360 may reasonably request from time to time.
Section 4. Payment and Taxes.
4.1 Payment. If the Agreement terminates for any reason, then 360 will pay Contractor the Fees on the basis stated in each SOW for the Services that are fully completed and accepted by 360 in accordance with the Agreement at the time of such termination. 360 will reimburse Contractor for only the reasonable expenses incurred by Contractor during the term of the Agreement that are either expressly identified in an SOW or approved in advance in writing by an authorized officer of 360. 360 will pay such Fees and reimburse such expenses no later than 30 days after 360’s receipt of Contractor’s invoice for such Fees and expenses; provided that reimbursement for expenses may be delayed until such time as Contractor has furnished such documentation for authorized expenses as 360 may reasonably request.
4.2 Taxes. Contractor will pay all taxes and fees assessed on Contractor or Contractor’s agents, employees, or servants by any governmental agency in connection with or incidental to the performance of the Agreement, as well as unemployment compensation insurance, social security, or any other taxes upon Contractor or, its agents, employees, or servants. Contractor is responsible for payment of all income taxes, including estimated quarterly payments. 360’s only responsibility in this regard is the issuance of an IRS Form 1099, if applicable, and filing thereof with the appropriate IRS office.
4.3 Determination of Employee Status. Notwithstanding anything in the Agreement to the contrary, if 360 reasonably determines in good faith that Contractor or any of Contractor’s agents, employees, or servants should be classified as an employee of 360 or that 360 has withholding tax obligations with respect to Contractor or any of Contractor’s agents, employees, or servants under applicable law, then, to the extent required by applicable law, 360 will treat Contractor or such agent, employee, or servant of Contractor as a temporary employee of 360 and pay all Fees and reimburse all expenses pursuant to the Agreement using 360’s ordinary payroll system in accordance with 360’s ordinary payroll practices.
5.1 Certain Representations. Contractor represents that Contractor has the full power, authority, and right to enter into the Agreement, to grant the rights granted under the Agreement, and to fully perform all of Contractor’s obligations under the Agreement. Contractor’s entering into the Agreement and Contractor’s performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Contractor is subject or by which Contractor is otherwise bound. Contractor has the required skill, experience, and qualifications to perform the Services.
5.2 Goods and Software. Contractor warrants that all goods and software provided to 360 as part of the Services under the Agreement will be free from defects in material and workmanship, will comply with all requirements of pertinent specifications, documentation, drawings, and samples, will not infringe upon or violate any patent, copyright, trademark, trade secret, or other proprietary right of a third party, and will be delivered with complete right, title, and ownership to 360 and free and clear of any claims, liens, or encumbrances.
5.3 Services. Contractor warrants that all Services performed under the Agreement will be performed in a careful, efficient, and workmanlike manner and in compliance in all respects with all applicable federal, state, and local laws and regulations, and will conform to all applicable requirements and specifications and to the commercial standards applicable in the field of Contractor’s work.
5.4 Original Works. Contractor warrants that all deliverable items developed under the Agreement and all materials provided by Contractor to 360 will be original works of authorship, that no trade secret, copyright, or trademark right of any third party will be infringed by any act contemplated by the Agreement, and that no third-party patent rights, trademark rights, or other intellectual property rights will be infringed by the manufacture, use, or sale of any deliverable item or by any other act contemplated by the Agreement.
5.5 Nonconformance. Goods or Services not in conformity with Contractor’s warranties may, at 360’s option, (a) be retained at an equitable adjustment in price, (b) be returned for replacement, correction, credit, or refund, as specified by 360, or (c) be corrected in place. All returns, replacements, and corrections will be at Contractor’s expense, including all labor, materials, installation, repair, service, transportation, and other charges. No replacement of defective or nonconforming goods returned to Seller will be made unless specified by 360 in writing.
5.6 Survival of Warranties. All warranties of Contractor will survive acceptance and payment by 360.
6.1 Definitions. For purposes of the Agreement, the following terms have the following meanings:
(a) “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trade secrets, moral rights, mask work, trademarks, trade names, trade dress, know-how, ideas (whether or not protected under trade secret laws) and any other intellectual property rights recognized in any country or jurisdiction in the world.
(b) “Inventions” includes processes, machines, compositions of matter, improvements, innovations (whether or not protected under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protected under copyright laws), and all Intellectual Property Rights therein, and includes all new or useful art, combinations, discoveries, formulas, manufacturing or marketing techniques or methods, technical developments, discoveries, artwork, software, programs, systems, and designs.
(c) “360 Inventions” are Inventions that Contractor, solely or jointly with others, conceives, reduces to practice, creates, derives, develops, or makes within the scope of Contractor’s Services for 360 under the Agreement.
6.2 Disclosure and Ownership of 360 Inventions. Contractor will make and maintain adequate and current records of all 360 Inventions, which records will be and remain the property of 360. Contractor will promptly disclose in writing to 360 each 360 Invention. All 360 Inventions and all products of the Services under the Agreement, including all Intellectual Property Rights therein, will be works made for hire and owned solely by 360. Contractor hereby does and will assign to 360 or 360’s designee Contractor’s entire worldwide right, title, and interest in and to all 360 Inventions and all associated records and Intellectual Property Rights. Any assignment of copyrights under the Agreement includes all rights of paternity, integrity, disclosure, and withdrawal, and any other rights that may be known as “moral rights,” and Contractor hereby irrevocably waives, to the fullest extent permitted by applicable law, all claims Contractor may now or hereafter have in any jurisdiction to any such rights.
6.3 Assistance. Contractor will execute, upon 360’s request, an assignment or transfer of 360 Inventions to 360 in the form provided by 360 for each 360 Invention, including computer programs, notes, sketches, drawings, and reports. Contractor will assist 360 in any reasonable manner to obtain, perfect, and enforce, for 360’s benefit, 360’s right, title, and interest in and to all Intellectual Property Rights in each 360 Invention. Contractor will execute, upon 360’s request, for each of 360 Inventions (including derivative works, improvements, renewals, extensions, continuations, divisionals, continuations in part, or continuing patent applications thereof), (a) patent, copyright, mask work, or similar applications related to such 360 Invention, (b) documentation (including assignments) to permit 360 to obtain, perfect, and enforce 360’s right, title and interest in and to such 360 Invention, and (c) any other lawful documents deemed necessary by 360 to carry out the purposes of the Agreement. If 360 requests that the Contractor take any of the actions described in this Section 6.3, then Contractor will be entitled to a fair and reasonable fee in addition to reimbursement of authorized expenses incurred at the prior written request of 360. If 360 is unable for any reason to secure Contractor’s signature to any documents Contractor is required to execute under this Section 6.3, Contractor hereby irrevocably designates and appoints 360 and 360’s duly authorized officers and agents as Contractor’s agents and attorneys-in-fact to act for and in Contractor’s behalf and instead of Contractor, to execute such documents with the same legal force and effect as if executed by Contractor.
6.4 Other Inventions. Contractor will not incorporate, or permit to be incorporated, any Inventions conceived, reduced to practice, created, derived, developed, or made by others (“Third Party Inventions”), or any Inventions that were developed or conceived by Contractor either outside of the scope of Contractor’s work for 360 under the Agreement or before the Effective Date (“Contractor Inventions”), into any of 360 Inventions without 360’s prior written consent. If Contractor does so incorporate any Contractor Inventions or Third Party Inventions into any of 360 Inventions: (a) Contractor hereby grants to 360 a royalty-free, perpetual, irrevocable, unlimited, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to practice all applicable Intellectual Property Rights relating to any Contractor Inventions that Contractor incorporates, or permits to be incorporated, into any 360 Inventions, and, to the extent Contractor is so permitted by third-party licenses, and (b) Contractor hereby grants to 360 a royalty-free, perpetual, irrevocable, unlimited, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to practice all applicable Intellectual Property Rights relating to any Third Party Inventions that Contractor incorporates, or permits to be incorporated, into any 360 Inventions.
7.1 Definition of Confidential Information. “Confidential Information” means any information (including any personal knowledge or data) regarding personnel, plans, programs, processes, technical information, customer, marketing and other business information, products, costs, equipment or operations of 360, and includes 360 Inventions, 360 Property, and 360’s information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information.
7.2 Nondisclosure Obligations. Except as permitted in this Section 7.2, Contractor will neither use nor disclose the Confidential Information. Contractor may use the Confidential Information solely to perform Services for the benefit of 360 in accordance with the Agreement. Contractor will treat all Confidential Information of 360 with the same degree of care as Contractor accords to Contractor’s own Confidential Information, but in no case less than reasonable care. Contractor will disclose Confidential Information only to those of Contractor’s employees who need to know such information in order to perform the Services, and Contractor certifies that such employees have previously agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those terms and conditions applicable to Contractor under the Agreement. Contractor agrees not to communicate any information to 360 in violation of the proprietary rights of any third party. Contractor will immediately give notice to 360 of any unauthorized use or disclosure of the Confidential Information, and will assist 360 in remedying any such unauthorized use or disclosure of the Confidential Information.
7.3 Exclusions from Nondisclosure Obligations.
(a) Contractor’s obligations under Section 7.2 will not apply to any portion of the Confidential Information that Contractor can demonstrate, (i) was in the public domain at or after the time such portion was communicated to Contractor by 360 through no fault of Contractor, (ii) was rightfully in Contractor’s possession free of any obligation of confidence at or after the time such portion was communicated to Contractor by 360, or (iii) was developed by employees of Contractor independently of and without reference to any information communicated to Contractor by 360.
(b) A disclosure of Confidential Information by Contractor, either (i) in response to a valid order by a court or other governmental body, (ii) otherwise required by applicable law, or (iii) necessary to establish the rights of either party under the Agreement, will not be considered to be a breach of the Agreement or a waiver of confidentiality for other purposes; provided, however, that Contractor will provide prompt prior written notice thereof to 360 to enable 360 to seek a protective order or otherwise prevent such disclosure.
7.4 Ownership and Return of 360 Property. All materials (including documents, drawings, models, apparatus, sketches, designs, lists, and all other tangible media of expression) furnished to Contractor by 360, whether delivered to Contractor by 360 or made by Contractor in the performance of Services under the Agreement (“360 Property”), are the sole and exclusive property of 360 or 360’s suppliers or customers, and Contractor hereby does and will assign to 360 all right, title, and interest Contractor may have or acquire in 360 Property. Contractor will keep all 360 Property at Contractor’s premises unless otherwise permitted in writing by 360. At 360’s request, and no later than five days after such request, Contractor will destroy or deliver to 360, at 360’s option, all 360 Property and all tangible media of expression in Contractor’s possession or control that incorporate or in which are fixed any Confidential Information, and Contractor will deliver to 360 written certification of Contractor’s compliance with Contractor’s obligations under this sentence.
8.1 Observance of 360 Rules. At all times while on 360’s premises, Contractor will observe 360’s rules and regulations with respect to conduct, health, and safety and protection of persons and property.
8.2 No Subcontractors. Contractor may not subcontract any portion of the Services to any non-employee of Contractor, including any agent or subcontractor of Contractor, without the express written permission of 360. Any such permitted subcontractor may be retained only pursuant to terms and conditions identical to the Agreement and any applicable SOW in all material respects, and Contractor will be fully liable for any breach of such agreement and for the performance of each such permitted subcontractor.
8.3 Compliance with Laws. Contractor will comply with all federal, state, and local laws, ordinances, rules, and regulations that are now or may become applicable to the Services covered by the Agreement. Contractor will secure all necessary permits, licenses, and other authorizations that are legally required in order for Contractor to perform the Services. If any of the terms of the Agreement are in conflict with any such law, ordinance, rule, or regulation, the terms of the Agreement so in conflict will be null and void, but all remaining terms of the Agreement will remain in full force and effect. Without limiting in any way the foregoing, Contractor will not export, directly or indirectly, any technical data acquired from 360, or any products utilizing any such data, to any country in violation of any applicable export laws or regulations.
8.4 No Use of Trademarks. Contractor will not use the name, trademarks, or trade names of 360 without 360’s prior written approval.
8.5 No Publicity. Contractor will not issue any press releases or public announcements regarding its business relationship with 360 without having first obtained 360’s written consent.
8.6 No Solicitation. Contractor understands that 360 has a substantial investment in the training of its employees. Therefore, Contractor will not, during the term of the Agreement and for a period of twelve (12) months after the termination of the Agreement for any reason, hire or solicit, or encourage any other entity to hire or solicit, for employment any employee of 360. Additionally, if Contractor hires any employee of 360 who initiates contact with Contractor within twelve (12) months of the termination of the Agreement for any reason, then Contractor will promptly pay 360 a placement fee equal to the total amount of cash compensation paid to the employee by 360 during the last 12 months of the employee’s employment by 360.
8.7 No Conflict of Interest. During the term of the Agreement, while Contractor is free to contract for similar services to be performed for others, Contractor will not accept work, enter into a contract, or accept an obligation inconsistent or incompatible with Contractor’s obligations, or the scope of Services rendered for 360, under the Agreement, or that interferes with 360’s business or that places Contractor in a conflict of interest with 360; provided that Contractor may not be engaged in any business activity that does or may compete with the business of 360 without the prior written consent of 360. Contractor warrants that there is no other contract or duty on Contractor’s part that conflicts with or is inconsistent with the Agreement.
8.8 Insurance. During the term of the Agreement, Contractor will maintain in force adequate workman’s compensation, commercial general liability, errors and omissions, and other forms of insurance, in each case with insurers reasonably acceptable to 360, with policy limits sufficient to protect and indemnify 360 and its affiliates, and each of their officers, directors, agents, employees, subsidiaries, partners, members, and controlling persons, from any losses resulting from Contractor’s or Contractor’s agents’, servants’, or employees’ conduct, acts, or omissions. 360 will be listed as additional insured under each such policy, and Contractor will forward a certificate of insurance verifying such insurance upon 360’s written request, which certificate will indicate that such insurance policies may not be canceled before the expiration of a 30-day notification period and that 360 will be immediately notified in writing of any such notice of termination.
Section 9. SURVIVAL. The definitions contained in the Agreement and the rights and obligations contained in Section 2, Section 4.2, Section 5, Section 6, Section 7, Section 8, Section 9, Section 10 and Section 11 will survive any termination or expiration of the Agreement.
Section 10. Indemnity. Contractor will, for itself and its assigns, indemnify, defend, and hold 360 and its officers, directors, employees, and agents harmless from and against all demands, claims, actions, judgments, losses, costs, damages, or expenses, including reasonable attorneys’ fees and related expenses, that in any manner are caused by, arise from, or are incident to the Services performed under the Agreement, including: (a) claims based on a breach of any representation, warranty, or obligation of Contractor under the Agreement or any SOW, (b) claims based on patent, copyright, trademark, trade secret, or other intellectual property rights; (c) contractual claims, including any and all loss or liability incurred by reason of the alleged breach by Contractor of any agreement with any third party; (d) labor or employment law claims by Contractor or Contractor’s employees, agents, or subcontractors; (e) claims by Contractor or Contractor’s employees, agents or subcontractors alleging a basis for participation in any of 360’s employee benefit plans, programs, or arrangements; (f) failure to collect, withhold, or pay any and all federal or state taxes required to be withheld or paid by employers of employees, including any and all income tax, social security tax, medicare tax, and unemployment tax; (g) failure to meet other governmental obligations, including obligations under the laws pertaining to social security, unemployment insurance, worker’s compensation, income tax and other reports, deductions, and withholdings required by state and federal law; (h) acts, errors, omissions, or negligence of Contractor; and (i) injury or death to persons and damage to property (each, an “Indemnified Claim”), provided that: (i) 360 promptly notifies Contractor in writing of the Claim, and (ii) 360 provides Contractor all information and cooperation reasonably necessary for the defense of the Indemnified Claim, all at Contractor’s expense. 360 may participate in the defense of any Indemnified Claim at its own expense using counsel of its choosing, and Contractor will not settle any Indemnified Claim without the written consent of 360, unless such settlement involves only the payment of money. Without limiting any other rights or remedies that 360 may have at law or in equity, 360 may satisfy any indemnification obligation of Contractor under this Section 10 (in whole or in part) by way of deduction from any payment due from 360 to Contractor.
11.1 Successors and Assigns. Contractor may not subcontract, assign, or otherwise delegate any of Contractor’s rights or obligations under the Agreement without 360’s prior written consent. Any subcontract, assignment, or delegation in violation of the previous sentence will be deemed null and void. 360 may freely assign or delegate its rights or obligations under the Agreement. Subject to the foregoing, the Agreement will operate for the benefit of 360’s successors and assigns, and will be binding on Contractor’s permitted assignees.
11.2 Notices. Any notice required by or permitted under by the Agreement must be in writing and must be delivered to the addresses set forth on the signature page to the Agreement or to such other address as either party may specify in writing, with notice deemed given: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; (c) by telecopy or facsimile transmission, upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt.
11.3 Governing Law and Jurisdiction. The Agreement will be governed by and interpreted under the laws of Texas, as such laws are applied to agreements entered into and to be performed entirely within Texas between Texas residents. If a suit, action, or proceeding under or regarding the subject matter of the Agreement (an “Action”) is brought, the party bringing such Action will bring such Action in the federal and state courts of Austin, Texas, and, in such event, (a) any counterclaims must be brought in such courts, (b) each party hereby irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such Action in Austin, Texas, and (c) each party further irrevocably waives any claim that Austin, Texas is not a convenient forum for any such Action. Notwithstanding the foregoing, in actions seeking to enforce any order or any judgment of such federal or state courts located in Texas, such personal jurisdiction will be nonexclusive.
11.4 Severability. If any provision of the Agreement is held by a court of law to be illegal, invalid, or unenforceable, (a) that provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (b) the legality, validity, and enforceability of the remaining provisions of the Agreement will not be affected or impaired thereby.
11.5 Modification of Terms and Conditions. 360 reserves the right, in its discretion, to change, modify, add to, or remove portions of these Terms and Conditions (collectively, “Changes”), at any time. The date that Changes were last made are indicated at the top of the page and such revisions are effective as of the “Last Updated” date. 360 will notify Company of Changes by posting a revised version of these Terms and Conditions incorporating the Changes to 360’s website. Changes will not become effective with respect to Contractor during the term of an SOW, but Changes will apply with respect to any new SOWs entered into by 360 and Contractor. Contractor’s execution of any new SOWs following the posting of these Terms and Conditions incorporating the Changes on the 360 website will mean that Contractor accepts and agrees to the Changes.
11.6 Waiver. No term or provision of the Agreement will be considered waived by 360, and no breach excused by 360, unless such waiver or consent is in writing signed by 360. The waiver by 360 of, or consent by 360 to, a breach of any provision of the Agreement by Contractor, will not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by Contractor. 360’s failure to object to conflicting provisions contained in any communication from Contractor will not be deemed a waiver of the terms of the Agreement. Any such waiver must specifically be agreed to in writing by Contractor and 360 before becoming binding on either party.
11.7 Injunctive Relief for Breach. Contractor’s breach of the obligations under Section 6 or Section 7 will result in irreparable and continuing damage to 360 for which there will be no adequate remedy at law. If there is such a breach, then 360 will be entitled to injunctive relief or a decree for specific performance, and such other and further relief as may be proper (including monetary damages, if appropriate).
11.8 Entire Agreement; Amendments; Interpretation. This Agreement constitutes the entire Agreement and understanding between the parties and supersedes all prior and contemporaneous agreements, written or oral, between 360 and Contractor with respect to the subject matter hereof. Any such prior agreements are hereby terminated with immediate effect. This Agreement and each of its provisions will be binding upon the parties and, except as otherwise provided in these Terms and Conditions, no addition to or change in the Agreement will be effective or binding on either of the parties unless agreed to in writing by an authorized representative of Contractor and the CEO, CFO or COO of 360. In the event of a conflict between the Agreement documents, the order of precedence will be (1) any properly executed SOW, (2) the terms in the Agreement that reference and incorporate these Terms and Conditions, (3) any other exhibits to the Agreement that reference and incorporate these Terms and Conditions, and (4) these Terms and Conditions. The terms and conditions of the Agreement will prevail regardless of any conflicting terms on any order acknowledgment or other communication of Contractor, and 360’s acceptance of the Services is made only on the express understanding and condition that insofar as the terms and conditions of the Agreement conflict with any terms and conditions of Contractor’s order acknowledgment or other communication, the terms and conditions of the Agreement control. For purposes of the Agreement, the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation,” and the word “or” is not exclusive.