PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS USING THE SERVICE. BY USING THE SERVICE IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, OR INTERACTING ON THE SERVICE, YOU REPRESENT THAT: (a) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (b) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ADDGLOW, (c) YOU ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE, OR ANY OTHER APPLICABLE JURISDICTION; AND (d) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT OR IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH ADDGLOW, YOU MAY NOT ACCESS OR USE THE SERVICE.
SECTION 15 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND ADDGLOW. AMONG OTHER THINGS, SECTION 15 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 15 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE WITHIN 30 DAYS: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS- WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
1. USE OF THE SERVICE. The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and AddGlow, your right to access and use the Service, in whole or in part, is subject to this Agreement. You understand that the Service is evolving. You acknowledge and agree that AddGlow may update the Service with or without notifying you. Any future release, update or other addition to the Service shall be subject to this Agreement.
2. REGISTRATION. 2.1 Registering Your Account. In order to access certain features of the Service, you may be
required to register an account on the Service ("Account"), have a valid account on a social networking
service ("SNS") through which you can connect to the Service, as permitted by the Service, or have an account through another third-party service, such as Google (each such SNS or other third-party account, a "Third-Party Account"). YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD- PARTY SERVICE PROVIDERS, AND ADDGLOW DISCLAIMS ANY LIABILITY FOR ANY ACTIVITIES UNDERTAKEN BY SUCH THIRD PARTIES OR IN CONNECTION WITH SUCH THIRD PARTY ACCOUNTS.
2.2 Registration Data. In registering an account on the Service, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the "Registration Data"), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
2.3 Your Account. 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 AddGlow immediately of any unauthorized use of your password or any other breach of security. If you are not of legal age to form a binding contract with AddGlow, provide any information that is untrue, inaccurate, incomplete, or not current, or if AddGlow has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete, or not current, or to create an Account using a false identity or information, or on behalf of someone other than yourself, AddGlow has the right to suspend or terminate your Account and refuse any and all current or future use of the Service (or any portion thereof). You acknowledge and agree that you have no ownership or other property interest in your Account. You shall not have more than one Account at any given time. You agree not to create an Account or use the Service if you have been previously removed by AddGlow, or if you have been previously banned from the Service.
3. RESPONSIBILITY FOR CONTENT.
3.1 Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Service (collectively, "Content"), is the sole responsibility of the party from whom such Content originated. This means that you, and not AddGlow, are entirely responsible for all Content that you upload, post, email, transmit, or otherwise make available ("Make Available") through the Service (collectively, "Your Content"), and that other users of the Service, and not AddGlow, are similarly responsible for all Content that they Make Available through the Service ("User Content").
3.2 Storage. AddGlow has no obligation to store any of Your Content. AddGlow has no responsibility or liability for: the deletion or accuracy of any Content, including Your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Certain features and functionality of the Service may enable you to specify the level at which the Service restricts access to Your Content. In such cases, you are solely responsible for applying the appropriate level of access to Your Content. If you do not choose a level of access, the system may default to its most permissive setting.
4.1 The Service. Except with respect to Your Content, you agree that AddGlow and its suppliers or licensors own all rights, title, and interest in the Service (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and AddGlow software). You shall not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service.
4.2 Trademarks. AddGlow's name and all related stylizations, graphics, logos, service marks and trade names used on or with the Service are the trademarks of AddGlow and may not be used without permission in connection with your, or any third-party's, products or services. Other trademarks, service marks and trade names that may appear on or in the Service are the property of their respective owners.
4.3 Your Content. AddGlow does not claim ownership of Your Content, and you retain any rights that you have in Your Content. However, when you Make Available any Content on or to the Service, you represent that you own and/or have sufficient rights to Your Content to grant the license set forth in Section 4.4 (License to Your Content).
4.4 License to Your Content. Subject to any applicable Account settings that you select, you grant AddGlow a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display, and otherwise exploit Your Content for the purposes of operating and providing the Service to you and to our other users. Please remember that other users may be able to search for, see, use, modify and/or reproduce any of Your Content that you submit to any area of the Service that is accessible by other users.
4.5 Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on the Service, you hereby expressly permit AddGlow to identify you by your username (which may be a pseudonym) 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.
4.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to AddGlow, including through any suggestion, feedback, forum, or similar pages ("Feedback") is at your own risk and that AddGlow 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 AddGlow a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display, and otherwise exploit in any manner, any and all Feedback, in connection with the operation, improvement, and maintenance of the Service and/or AddGlow's business.
5. USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Service or any portion of the Service; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service (including images, text, page layout or form); (iii) use any metatags or other "hidden text" using AddGlow's name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) 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 Service; (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (vii) impersonate any person or entity, including any employee or representative of AddGlow; (viii) interfere with or attempt to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" the Service; or (ix) take any action or Make Available any Content on or through the Service that: (a) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, or profane, or contains nudity, violence, sexually explicit, or offensive subject matter, as determined by AddGlow in its sole discretion; (b) constitutes unauthorized or unsolicited advertising, junk or bulk email; (c) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without AddGlow's prior written consent; or (d) otherwise violates the community guidelines set forth in Section 7.3 below. You may not post or Make Available a photograph of another person without that person's permission. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Service terminates the licenses granted by AddGlow pursuant to this Agreement.
6. INVESTIGATIONS, MONITORING, & NO OBLIGATION TO PRE-SCREEN CONTENT. AddGlow may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Content, including Your Content and User Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat or text communications.
Without limiting the foregoing, AddGlow reserves the right to: (i) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (ii) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for AddGlow; (iii) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (iv) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Service or if AddGlow otherwise believes that criminal activity has occurred; and/or (v) terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, AddGlow, may, at its sole discretion immediately terminate your license to use the Service, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
If AddGlow believes that criminal activity has occurred, AddGlow reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Service, including Your Content, in AddGlow's possession in connection with your use of the Service, to (a) comply with applicable laws, legal process or governmental request, (b) enforce this Agreement, (c) respond to any claims that Your Content violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property, or personal safety of AddGlow, its users or the public, and all enforcement or other government officials, as AddGlow in its sole discretion believes to be necessary or appropriate.
7. INTERACTIONS WITH OTHER USERS.
7.1 User Responsibility. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service; provided, however, that AddGlow reserves the right, but has no obligation, to intercede in any disputes between you and any other users. You agree that AddGlow will not be responsible for any liability relating to your interactions with other users.
7.2 Content Provided by Other Users. The Service may contain User Content provided by other users. AddGlow is not responsible for and does not control User Content. AddGlow does not approve or 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.
7.3 Community Guidelines. Without limiting anything set forth in this Agreement, you agree not to engage or attempt to engage in any of the following while using the Service: (i) bully or harass anyone or organize, promote, or participate in harassment; (ii) organize, promote, or participate in hate speech or hateful conduct, including but not limited to attacking a person or a community based on attributes such as their race, ethnicity, caste, national origin, sex, gender identity, gender presentation, sexual orientation, religious affiliation, age, illness, disabilities, or other protected classifications; (iii) use foul language or profanity, or share any content which uses foul language or profanity; (iv) make threats of violence or threaten to harm others, including but not limited to making indirect or suggestive threats; (v) use the Service for the organization, promotion, or support of violent extremism; (vi) organize, promote, encourage, discuss or engage in any illegal or dangerous behavior, such as sexual solicitation, human trafficking, and selling or facilitating the sale of prohibited or potentially dangerous goods (firearms, ammunition, drugs, and controlled substances); (vii) post or share any content that contains nudity or that is sexually explicit or suggestive; (viii) share content that glorifies or promotes suicide or self-harm, including any encouragement to others to cut themselves or embrace eating disorders such as anorexia or bulimia; (ix) share any content depicting gore, violence, or animal harm, especially with the intention to harass or shock others; (x) share content that violates anyone's intellectual property, right of publicity, right of privacy, or other rights; (xi) share content or information that constitutes unsolicited advertising or junk; (xii) engage in activities intended to cause damage or gain unauthorized access to another user's account, network, or system; or (xiii) use the Service to spam, manipulate engagement, or disrupt other people's experience, including trying to influence or disrupt conversations using bots, fake accounts, multiple accounts, or other automation.
7.4 Moderators. AddGlow or its third-party brand partners may designate community moderators or otherwise delegate community moderation abilities, including to third-party automated services, for the purposes of promoting the Community Guidelines set forth in Section 7.3 (Community Guidelines). Such moderation abilities may include but are not limited to any of the actions set forth in Section 6. AddGlow is not responsible for any actions taken by such moderators. AddGlow reserves the right, but has no obligation, to overturn any action or decision of a moderator if AddGlow, in its sole discretion, believes that such action or decision is not in the interest of AddGlow or an AddGlow community.
8. THIRD-PARTY SERVICE.
8.1 Third-Party Websites, Applications and Ads. The Service may contain links to third-party websites, applications, and advertisements for third parties, including websites and services of AddGlow's brand partners (collectively, the "Third-Party Services"). When you click on a link to a Third-Party Service, we may not warn you that you have left the Service and you become subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of AddGlow. AddGlow is not responsible for any Third-Party Services. AddGlow provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Service, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. INDEMNIFICATION. You shall indemnify and hold AddGlow, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "AddGlow Party" and collectively, the "AddGlow Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of any and all of the following: (i) Your Content; (ii) your use of the Service; (iii) your violation of this Agreement, including the Community Guidelines; (iv) your violation of any rights of another party, including any user; or (v) your violation of any applicable laws, rules or regulations. AddGlow reserves the right, to assume the exclusive defense and control of any matter subject to indemnification by you, in which event you will fully cooperate with AddGlow in asserting any available defenses. This provision does not require you to indemnify any of the AddGlow Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Service provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Service.
10. DISCLAIMER OF WARRANTIES.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE ADDGLOW 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, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICE.
(a) THE ADDGLOW PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICE WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICE); (2) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) FROM TIME TO TIME, ADDGLOW MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT ADDGLOW'S SOLE DISCRETION.
10.2 No Liability for Conduct of Third Parties. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE ADDGLOW PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE ADDGLOW PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES (INCLUDING THE WEBSITES OF ADDGLOW'S BRAND PARTNERS), AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT ADDGLOW DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. ADDGLOW MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE ADDGLOW PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ANY ADDGLOW PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE; (ii) ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF AN ADDGLOW PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A ADDGLOW PARTY'S GROSS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY AN ADDGLOW PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE ADDGLOW PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN $100. THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF AN ADDGLOW PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY AN ADDGLOW PARTY'S GROSS NEGLIGENCE; OR (B) ANY INJURY CAUSED BY AN ADDGLOW PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3 User Content. ADDGLOW ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.4 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
11.5 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ADDGLOW AND YOU.
12. PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY RIGHT INFRINGEMENT. It is AddGlow's policy to terminate membership privileges of any user who repeatedly infringes copyright, trademark, or other intellectual property rights upon prompt notification to AddGlow by the respective intellectual property owner or their legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Service in a way that constitutes intellectual property rights infringement, please provide our designated intellectual property agent with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright, trademark, or other intellectual property right; (ii) a description of the copyrighted work, trademark, or other intellectual property right that you claim has been infringed; (iii) a description of the location on the Service of the material that you claim is infringing; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright, trademark, or other intellectual property right owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright, trademark, or other intellectual property right owner or authorized to act on the copyright, trademark, or other intellectual property right owner's behalf. Contact information for AddGlow's designated agent for notice of claims of infringement is as follows:
AddGlow Attn: Ina Herlihy 228 Park Ave S PMB 64019 New York, NY 10003 Phone: 707-395-7097 Email: firstname.lastname@example.org
13. TERM AND TERMINATION.
13.1 Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above) and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement.
13.2 Termination of Service by AddGlow. If you have materially breached any provision of this Agreement, or if AddGlow is required to do so by law (e.g., where the provision of the Service is, or becomes, unlawful), AddGlow has the right to, immediately and without notice, suspend or terminate any Service provided to you. AddGlow further reserves the right to terminate this Agreement or your access to the Service at any time without cause upon notice to you. You agree that all terminations are made in AddGlow's sole discretion and that AddGlow shall not be liable to you or any third party for any termination of your Account.
13.3 Termination by You. If you want to terminate this Agreement, you may do so at any time by contacting us at email@example.com.
13.4 Effect of Termination. Upon termination of the Service or the applicable feature or functionality thereof, your right to use the Service or the applicable feature or functionality thereof will automatically terminate, and we may delete Your Content associated therewith from our live databases. If we terminate your Account for cause, we may also bar your further use of or access to the Service. AddGlow will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution mechanisms.
13.5 No Subsequent Registration. If this Agreement is terminated for cause by AddGlow or if your Account or ability to access the Service is discontinued by AddGlow due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Service through use of a different member name or otherwise.
14. INTERNATIONAL USERS. The Service may be accessed from countries around the world and may contain references to services and Content that are not available in your country. These references do not imply that AddGlow intends to announce such service or Content in your country. The Service is controlled and offered by AddGlow from its facilities in the United States of America. AddGlow makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and risk and are responsible for compliance with local law.
15. ARBITRATION AGREEMENT. Please read this section (the "Arbitration Agreement") carefully. It is part of your contract with AddGlow and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
15.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and AddGlow agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a "Dispute") will be resolved by binding arbitration, rather than in court, except that: (i) you and AddGlow may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or AddGlow may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, "Dispute" will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
15.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and AddGlow. If that occurs, AddGlow is committed to working with you to reach a reasonable resolution. You and AddGlow agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost and mutually beneficial outcome ("Informal Dispute Resolution"). You and AddGlow therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement ("Informal Dispute Resolution Conference"). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference ("Notice"), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to AddGlow that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to 228 Park Ave S PMB 64019 New York, New York 10003-1502 US. The Notice must include: (i) your name, telephone number, mailing address, e-mail address associated with your Account (if you have one); (ii) the name, telephone number, mailing address and e-mail address of your counsel, if any; and (iii) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party's Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
15.3 Waiver of Jury Trial. YOU AND ADDGLOW HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and AddGlow are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
15.4 Waiver of Class and Other Non-Individualized Relief. YOU AND ADDGLOW AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 15.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 15.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and AddGlow agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or AddGlow from participating in a class-wide settlement of claims.
15.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and AddGlow agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association ("AAA"), in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the "Request"). The Request must include: (i) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars; (iv) a statement certifying completion of the Informal Dispute Resolution process as described above; and (v) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel's name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (a) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (b) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (c) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and AddGlow otherwise agree, or the Batch Arbitration process discussed in Section 15.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and AddGlow agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties' attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
15.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 15.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
15.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to Section 15.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 15.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 15.4 (Waiver of Class and Other Non- Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) except as expressly contemplated in Section 15.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 15.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
15.8 Attorneys' Fees and Costs. The parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or AddGlow need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys' fees and costs.
15.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and AddGlow agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against AddGlow by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (i) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (ii) appoint one arbitrator for each batch; and (iii) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award ("Batch Arbitration").
All parties agree that Requests are of a "substantially similar nature" if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process ("Administrative Arbitrator"). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator's fees shall be paid by AddGlow.
You and AddGlow agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (a) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (b) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
15.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to 228 Park Ave S PMB 64019 New York, New York 10003-1502 US, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
15.11 Invalidity, Expiration. Except as provided in Section 15.4 (Waiver of Class or Other Non- Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with AddGlow as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
15.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if AddGlow makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to AddGlow at 228 Park Ave S PMB 64019 New York, New York 10003-1502 US, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. AddGlow will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
16. GENERAL PROVISIONS.
16.1 Electronic Communications. The communications between you and AddGlow may take place via electronic means, whether you visit the Service or send AddGlow emails, or whether AddGlow posts notices on the Service or communicates with you via email. For contractual purposes, you (i) consent to receive communications from AddGlow in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that AddGlow electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. ("E-Sign").
16.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without AddGlow's prior written consent. AddGlow may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
16.3 Force Majeure. AddGlow 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, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
16.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
16.5 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
16.6 Agreement Updates. When changes are made, AddGlow will make a new copy of this Agreement available on the Service, and we will also update the "Last Updated" date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we may also send an email with an updated copy of this Agreement to you at the email address associated with your Account. AddGlow may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account, unless subject to earlier consent or acceptance, in which case, changes shall be effective upon such consent or acceptance.
16.7 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and AddGlow agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in New York.
16.8 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY 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 AGREEMENT.
16.9 Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
16.10 Notice. Where AddGlow requires that you provide an email address, you are responsible for providing AddGlow with a valid and current email address. Notice shall be deemed given when the email is dispatched by AddGlow. In the event that the email address you provide to AddGlow is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, AddGlow's dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to AddGlow at the following address: 228 Park Ave S PMB 64019 New York, New York 10003-1502 US. Such notice shall be deemed given when received by AddGlow by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
16.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
16.12 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
16.13 Export Control. You acknowledge and agree that products, services, or technology provided by AddGlow are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer AddGlow products, services, or technology, either directly or indirectly, to any country in violation of such laws and regulations. You also will not use the Service for any purpose prohibited by U.S. law.
16.14 Entire Agreement. The Agreement is 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.