Agreement between You and Audience Learning
Last Updated Date: July 8, 2015
The Services include, but are not limited to, a learning management system that entities (“Entities”) may subscribe to and provide to their instructors and learners (“Instructors” and “Learners”) in connection with courses (each, a “Course”). Audience Learning provides an account that enables a designated User to manage the Services, manage Learner and Instructor access to the Services, and provide general support on behalf of an Entity. “User” means any user of the Services, including Learners, and Instructors.
PLEASE NOTE THAT THE TERMS ARE SUBJECT TO CHANGE BY Audience Learning IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Audience Learning will make a new copy of the Terms available at the Website. We will also update the “Last Updated” date at the top of the Terms. If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us. Any changes to the Terms will be effective immediately for new Users of the Website or Services and will be effective thirty (30) days after posting of notice of such changes on the Website for existing User. Audience Learning may require you to provide consent to the updated Terms in a specified manner before further use of the Website or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
1. Use of the Services and Audience Learning Properties. The Website, the Services, and the information and content made available (“Content”) by Audience Learning on the Website and in the Services (collectively, the “Audience Learning Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Audience Learning grants you a limited license to reproduce portions of the Audience Learning Properties for the sole purpose of using the Services for your personal purposes or, in the event you are an Instructor, your educational purposes.
1.1 Application License. Audience Learning also provides a mobile application (the “Application”) for use with the Services. Your use of the Application is governed by the End User License Agreement that accompanies the Application in the marketplace where you download it.
1.2 Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Audience Learning Properties, (b) you shall not use framing techniques to enclose any trademark, logo, or other Audience Learning Properties; (c) you shall not use any metatags or other “hidden text” using Audience Learning‘s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Audience Learning Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Website; (f) except as expressly stated herein, no part of the Audience Learning Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Audience Learning Properties. Any future release, update or other addition to the Audience Learning Properties shall be subject to the Terms. Audience Learning, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Audience Learning Properties terminates the licenses granted by Audience Learning pursuant to the Terms.
2. Registration. In order to access certain features of the Audience Learning Properties you must create an account (“Account”) by providing necessary information when registering (“Registration Data”) and accept the Terms.
2.1 Registration Data. In registering for the Services, you agree to (1) provide true, current, and complete Registration Data; and (2) maintain and promptly update the Registration Data to keep it true, current, and complete. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to notify Audience Learning immediately of any unauthorized use of your password or any other breach of security. You agree not to create or access an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. You agree not to create an Account or use the Audience Learning Properties if you have been previously removed by Audience Learning or if you have been previously banned from any of the Audience Learning Properties.
2.2 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Audience Learning Properties, including but not limited to, a mobile device that is suitable to connect with and use the Application. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Audience Learning Properties.
3. Responsibility for Content.
3.1 Types of Content. You acknowledge that all Content, including the Audience Learning Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Audience Learning, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Audience Learning Properties (“Your Content”). Other Users of the Audience Learning Properties, and not Audience Learning, are similarly responsible for all Content such other Users Make Available through the Audience Learning Properties (“User Content”).
3.2 No Obligation to Pre-Screen Content. You acknowledge that Audience Learning has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Audience Learning reserves the right in its sole discretion to pre-screen, refuse, or remove any Content that (1) violates any law or regulation, (2) violates these Terms, including the User Code of Conduct set forth in Section 5.4 hereof, and/or (3) otherwise creates liability for Audience Learning.
4.1 Audience Learning Properties. Except with respect to Your Content and User Content, you agree that Audience Learning and its suppliers own all rights, title and interest in the Audience Learning Properties. Audience Learning’s name and other related graphics, logos, service marks and trade names used on or in connection with the Audience Learning Properties are the trademarks of Audience Learning and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Audience Learning Properties are the property of their respective owners.
4.2 Your Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Audience Learning Properties. Audience Learning does not claim ownership of Your Content. However, you grant Audience Learning a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Audience Learning Properties to you and to our other Users. When you as a User post or publish Your Content on or in the Audience Learning Properties, you represent that you have the authority to grant the aforementioned license to Audience Learning. Please remember that other Users may search for, see, use, modify, and reproduce any of Your Content that you submit to any area of the Audience Learning Properties that is generally available to all Users. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
4.3 Your Account. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on or in the Audience Learning Properties, you hereby expressly permit Audience Learning to identify you by your username as the contributor of Your Content in any publication in any form, media, or technology now known or later developed in connection with Your Content.
4.4 User Code of Conduct. As a condition of use, you agree not to use the Audience Learning Properties for any purpose that is prohibited by the Terms or by applicable law. Do not post, or permit others to post, content on the Audience Learning Properties or on your profile that (i) encourages illegal activities, is fraudulent, or is unlawful; (ii) insults, defames, harasses, or threatens others; (iii) violates the copyright or intellectual property or privacy rights of others; (iv) contains obscene, vulgar, pornographic, or libelous material; (v) harms or impersonates others, including other Users; or (vi) advertises or sells a product or service. Do not reproduce content from your Course or other Learners unless allowed by the express copyright terms laid out by the Instructor (e.g. Creative Commons). Do not share the solutions to assignments with others unless this is expressly authorized by the Instructor. Do not submit the work of others as your own work. Respect the privacy of other Users. Respect the diversity of opinions and cultures that will be presented by other Users. Do not attempt or engage in, any potentially harmful acts that are directed against the Audience Learning Properties, including but not limited to violating or attempting to violate any security features of the Audience Learning Properties, introducing viruses, worms, or similar harmful code into the Audience Learning Properties, or interfering or attempting to interfere with use of the Audience Learning Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Audience Learning Properties. If you believe that someone has violated this code of conduct, begin by notifying the Instructor of the Course. If the issue is not addressed by the Instructor to your satisfaction, contact email@example.com with your concerns.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Audience Learning through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Audience Learning has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Audience Learning a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Audience Learning Properties.
5. Investigations. Audience Learning may, but is not obligated to, monitor or review the Audience Learning Properties and Content at any time. Without limiting the foregoing, Audience Learning shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although Audience Learning does not generally monitor user activity occurring in connection with the Audience Learning Properties, if Audience Learning becomes aware of any possible violations by you of any provision of the Terms, Audience Learning reserves the right to investigate such violations, and Audience Learning may, at its sole discretion, terminate your license to use the Audience Learning Properties, or change, alter or remove Your Content, in whole or in part.
6. Interactions with Other Users.
6.1 User Responsibility. You are solely responsible for your interactions with other Users of the Services and any other parties with whom you interact through the Services; provided, however, that Audience Learning reserves the right, but has no obligation, to intercede in disputes among Users. You agree that Audience Learning will not be responsible for any liabilities incurred as the result of such interaction.
6.2 Content Provided by Other Users. The Audience Learning Properties may contain User Content provided by other Users. Audience Learning is not responsible for and does not control User Content. Audience Learning has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
7. Third-Party Websites.
7.1 Third-Party Websites. The Audience Learning Properties may contain links to third-party websites (“Third-Party Websites”). When you click on a link to a Third-Party Website, we will not warn you that you have left the Audience Learning Properties and are subject to separate terms and conditions or privacy policies. Such Third-Party Websites are not under the control of Audience Learning. Audience Learning is not responsible for any Third-Party Websites and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
7.2 App Stores. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from which you received the Application, e.g., the Apple or Android app stores.
8. Indemnification. You agree to indemnify, defend, and hold Audience Learning, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively the “Audience Learning Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Audience Learning Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any User; or (e) your violation of any applicable laws, rules or regulations. Audience Learning reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Audience Learning in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms, or your access to the Audience Learning Properties.
9. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE Audience Learning PROPERTIES IS AT YOUR SOLE RISK, AND THE Audience Learning PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. Audience Learning PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Audience Learning PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE Audience Learning PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE Audience Learning PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Audience Learning PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE Audience Learning PROPERTIES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE Audience Learning PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE Audience Learning PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. Audience Learning MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Audience Learning OR THROUGH THE Audience Learning PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
10. Limitation of Liability.
10.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL Audience Learning PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE Audience Learning PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT Audience Learning HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE Audience Learning PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE Audience Learning PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE Audience Learning PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON Audience Learning PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE Audience Learning PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL Audience Learning PARTIES BE LIABLE TO YOU FOR MORE THAN THE ANY AMOUNTS RECEIVED BY Audience Learning AS A RESULT OF YOUR USE OF THE Audience Learning PROPERTIES IN THE 12 MONTHS PRECEDING YOUR CLAIM. IF YOU HAVE NOT PAID Audience Learning ANY AMOUNTS IN THE 12 MONTHS PRECEDING YOUR CLAIM, Audience Learning‘s SOLE AND EXCLUSIVE LIABILITY SHALL BE FIFTY DOLLARS ($50).
10.3 User Content. Audience Learning PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
10.4 No Liability for Conduct of Third Parties or Other Users. YOU ACKNOWLEDGE AND AGREE THAT Audience Learning PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD Audience Learning PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE Audience Learning PROPERTIES. YOU UNDERSTAND THAT Audience Learning DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE Audience Learning PROPERTIES.
10.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN Audience Learning AND YOU.
11. Procedure for Making Claims of Copyright Infringement. It is Audience Learning‘s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Audience Learning by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Audience Learning Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Audience Learning Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Audience Learning‘s Copyright Agent for notice of claims of copyright infringement is as follows: Audience Learning Legal, 1400 South Congress, Suite B350, Austin, TX 78704.
12. Term and Termination.
12.1 Term. The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Audience Learning Properties, unless terminated earlier in accordance with the Terms.
12.2 Termination of Services by Audience Learning. If you have breached any provision of the Terms, or if Audience Learning is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Audience Learning has the right to suspend or terminate any Services provided to you or to delete any of Your Content. You agree that all terminations for cause shall be made in Audience Learning‘s sole discretion and that Audience Learning shall not be liable to you or any third-party for any termination of your Account. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also may include deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. Audience Learning will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. General Provisions.
13.1 Electronic Communications. The communications between you and Audience Learning use electronic means, whether you visit the Audience Learning Properties or send Audience Learning e-mails, or whether Audience Learning posts notices on the Audience Learning Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Audience Learning in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Audience Learning provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect any statutory rights you may have.
13.2 Release. You hereby release Audience Learning Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other Website Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Audience Learning Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
13.3 Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Audience Learning‘s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Audience Learning may assign its rights and obligations under these Terms to a third party without your consent.
13.4 Force Majeure. Audience Learning shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
13.5 Compliance. If you believe that Audience Learning has not adhered to the Terms, please contact Audience Learning by emailing us at firstname.lastname@example.org. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.
13.6 Governing Law; Jurisdiction. Unless otherwise required by applicable law, the Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Utah, without giving effect to any conflicts of law principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms. Any claim, dispute, or action arising, directly or indirectly, to the Terms shall be litigated in the state or federal courts located in Salt Lake County, Utah and the parties hereto agree to submit to the personal jurisdiction of such courts.
13.7 Notice. Where Audience Learning requires that you provide an e-mail address to access certain features of the Audience Learning Properties, you are responsible for providing Audience Learning with your most current e-mail address. In the event that the last e-mail address you provided to Audience Learning is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Audience Learning‘s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Audience Learning at the following address: Attn: Legal Department, 1400 South Congress, Suite B350, Austin, TX 78704. Such notice shall be deemed given when received by Audience Learning by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.8 Waiver. Any waiver or failure by Audience Learning to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.9 Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.10 Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.