Legal

Terms of service

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‍Effective Date: January 1, 2022

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This Terms of Service constitutes a legally binding agreement between you (“you” or “Customer”) and Monograph Inc, a Delaware C-Corporation company (“we” or “Company”), as the owners and operators of https://monograph.com (the “Site”) and related applications (collectively the “Platform”) and the subscription services made available through the Platform. Company and Customer shall individually be referred to as a “Party” and collectively as the “Parties.”

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By checking the “I Agree to the Terms of Service” box or (i) accessing or using any part of the Platform, or (ii) initiating any transaction on the Platform, you agree to be bound by these Terms of Service.

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THESE TERMS OF SERVICE INCLUDE PROVISIONS FOR BINDING ARBITRATION ON AN INDIVIDUAL BASIS – WHICH INCLUDES A WAIVER OF A RIGHT TO A JURY TRIAL OR A RIGHT TO FILE A CLASS ACTION.

1. DEFINITIONS

The following terms shall be capitalized throughout this Terms of Service and shall be defined as follows:

  1. Authorized Users. The term “Authorized Users” refers to the individuals authorized by Customer to access and use the Subscription Services.
  2. Customer Data. The term “Customer Data” refers to any data or information submitted, uploaded, imported, integrated, communicated by Customer to Company, including for the avoidance of doubt, Personal Data relating to any Data Subject.
  3. Personal Data. The term “Personal Data” means information relating to an identified or identifiable natural person (“Data Subject”) input as part of Customer Data; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, genetic, mental, economic, cultural or social identity. For the avoidance of doubt, Personal Data includes personally identifiable information.
  4. Service Data. The term “Service Data” means any statistical and/or other benchmark data gathered by Company from Customer’s use of the Subscription Services. For the avoidance of doubt, Service Data shall not contain Personal Data.
  5. Subscription Services. The term “Subscription Services” refers to the cloud-based subscription services selected by Customer through the Platform.
  6. Updates. The term Updates means any and all bug fixes, patches, and maintenance releases to the Subscription Services.

2. ELIGIBILITY

By agreeing to these Terms of Service, you represent and warrant that you (a) are at least 18 years of age or otherwise have the power to enter into a binding contract in your country of residence, and (b) possess all the necessary authority to enter into this Terms of Service on behalf of the registered account holder.

3. SUBSCRIPTION SERVICES

Pursuant to this Terms of Service, Company shall provide to Customer the Subscription Services selected by Customer through the Platform. Company may provide Updates to the Subscription Services at any time.

4. AUTHORIZED USERS

Customer may authorize additional users to access the Subscription Services for additional service fees pursuant to the terms of the Subscription Services plan purchased by Customer. All Authorized Users shall be subject to the terms and conditions of this Terms of Service. Each Authorized User will have their own unique login credentials. Customer shall be responsible for maintaining the confidentiality and security of account login credentials and is responsible for any and all activities that occur under Customer’s account.

5. END USER LICENSE AGREEMENT

Company hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable, worldwide license to access and utilize the Platform and Subscription Services for the Subscription Term in accordance with the terms of these Terms of Service.

6. CUSTOMER DATA LICENSE

During the term of the Subscription Services, Customer hereby grants to Company a non-exclusive, sub-licenseable, royalty-free, worldwide right and license to collect, process, store, host, copy, transmit, display, distribute, disseminate, modify, and create derivative works of any and all Customer Data for the purposes of (a) providing the Subscription Services, and (b) performing analytics on Customer Data.

7. SUBSCRIPTION SERVICES OWNERSHIP

Company and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Subscription Services, including any Updates, improvements, modifications, and enhancements to it. Except for the rights expressly granted in this Terms of Service, Customer shall acquire no other rights, express or implied, in or to the Subscription Services, and all rights not expressly provided to Customer hereunder are reserved by Company and its licensors.

8. SERVICE DATA OWNERSHIP

Company expends significant resources gathering, assembling, and compiling the Service Data and such Service Data constitutes an original compilation protected by applicable copyright laws. Company shall retain all right, title and interest to any Service Data created, generated and/or derived from Customer’s use of the Subscription Services. Company shall retain the unrestricted right, in its sole and absolute discretion, to utilize such Service Data for any purpose whatsoever, both commercial and non-commercial, without compensation or accounting to you. To the extent we do not automatically own any Service Data upon its creation, you hereby assign all right, title and interest in and to such Service Data to Company.

9. IDEA SUBMISSIONS LICENSE

We consider any suggestions, ideas, proposals or other material submitted by users, whether solicited or unsolicited, (collectively, the "Feedback") to be non-confidential and non-proprietary. We shall not be liable for the disclosure, use or exploitation of such Feedback. You hereby grant to Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free and transferable right and license to incorporate, use, publish and exploit the Feedback for any purpose whatsoever, commercial or otherwise, without compensation or accounting.

10. PROMOTIONAL LICENSE

Customer grants to Company the unrestricted right and license to use Customer’s name and logo to market and promote the Subscription Services. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display Customer’s name and logo as incorporated into Company’s marketing and promotional materials. Company is granted no other rights to Customer’s name and logo and acknowledges that it shall not gain any proprietary interest in Customer’s name and logo. Company is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. Company shall be the exclusive owner of all right, title, and interest, including copyright, in Company’s marketing and promotional materials. This license may be terminated at any time with thirty (30) days written notice to legal@monograph.com.

11. FREE SUBSCRIPTIONS/FREE TRIALS/BETA SERVICES

If Customer has initiated Services by selecting a Free Trial or other Beta Services (“Free Trial”) offered by Company, such Free Trial services will be available to Customer free of charge until earlier of (a) the date on which the term of the selected Free Trial services expires or is terminated, or (b) the start date of any paid Subscription Services plan. Paid Subscriptions Services are subject to the terms and conditions in effect upon purchase of the applicable Subscription Services plan.

12. FEES AND TERM

  1. Month-to-Month Fees & Payment. Customer expressly authorizes Company to charge the applicable recurring Subscription Service fees associated with the Subscription Services plan selected by Customer on the Platform (“Subscription Fees”) pursuant to the authorized payment method provided by Customer.
  2. Yearly Fees & Payment. Customer expressly authorizes Company to charge the applicable recurring Subscription Fees pursuant to the authorized payment method provided by Customer. For yearly Subscription Services, Customers will be charged the Subscription Fees in full at the commencement of the Subscription Term (as defined below).
  3. Subscription Term. The term of the Subscription will commence on the date the Subscription Services plan is selected and shall continue for the periodic subscription term chosen by Customer on the Platform (“Subscription Term”), and any renewal thereof, until terminated pursuant these Terms of Service.
  4. Late Payments. Company reserves the right to suspend or terminate the Subscription Services for payments that are more than five (5) days past due. Past due payments will accrue interest at the greater of 1.5% monthly or the highest interest rate allowable under applicable law.
  5. No Refunds. Subscription Fees will not be prorated upon cancellation and/or termination and all fees paid through the date of termination are nonrefundable.
  6. Cancellation. Any cancellation or termination of the Subscription Service will become effective at the end of the then current Subscription Term.
  7. Taxes. Customer is responsible for paying any applicable governmental sales, use, value-added, commodity, harmonized and other taxes imposed on your purchase or use of the Subscription Services. To the extent Company is required to collect such taxes, the applicable tax will be added to Customer’s billing account.
  8. Monograph Online Payments. Customer payments made through the Monograph Services may be subject to certain processing or convenience fees as set forth below.

Credit Card:

3% of total transaction

ACH Payment:

1% of total transaction, but no more than $15/payment

Direct Debit:

1% of total transaction, but no more than $15/payment

Foreign (non-US) Currency:

1% of total transaction

Customers must provide their applicable payment information and agree to the charges for the Service. Monograph may charge a small amount (between $0.01 - $0.20) and require customers to confirm the amount deposited in order to ensure accuracy of payment details. Monograph saves payment information on a secure server or with its third-party payment application, in accordance with our Privacy Policy.  Any deletion requests should be directed to Monograph in accordance with our Privacy Policy.  

Payments made via the ACH payment feature or the Direct Debit payment feature of the Services will be transferred to one of several accounts held by Monograph until the transfer has been cleared by the Federal Reserve and specific bank. Once the transfer has been cleared, Monograph will initiate the transfer in the amount of the total payment, plus any processing or convenience fees payable to Monograph.

Chargebacks, Disputed Fees, Failed Transaction.

Failed transaction fees will be levied in the following amounts.

Dispute or Chargeback:

$15

ACH Failure/Non-Sufficient Fund:

$4/failed transaction

If a payment is rejected for any reason, Monograph will notify you of the rejection and the applicable failed transaction fees within one (1) business day of receiving notice of the rejected payment. You are responsible for requiring the customer to initiate a new transaction and paying the failed transaction fee. If you or the customer do not pay the failed transaction fee via within sixty (60) days of the notification of such failed transaction fee, you hereby authorize Monograph to charge your credit card on file for the amount of the failed transaction fee.

Both you and your customer agree to ensure that all bank account, ACH information, and credit card information up-to-date and accurate.

You may cancel a payment feature at any time by contacting support@monograph, as long as a current transaction is not in process. If a current transaction is in process, such transaction will be finalized before Monograph disables this feature of the Services.

13. SUBSCRIPTION SERVICES AUTOMATIC RENEWAL

Subscription Services plans will automatically renew for additional periods equal to the expiring Subscription Term, unless either Party gives the other notice of non-renewal prior to expiration of the applicable Subscription Term. For yearly Subscription Terms, you must provide notice of your intention to not renew ten [10] days prior to the end of the then current Subscription Term. The fees for the automatic renewal term will be the same as that during the immediately prior term (exclusive of any promotional discounts) unless Company provides prior notice of a fee increase at least ten (10) days before the end of the applicable Subscription Term. Customer may cancel the Subscription Services renewal within the Platform dashboard at any time.

14. USE RESTRICTIONS

Customer will not, directly or indirectly, alter or modify the Platform or Subscription Services, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or Subscription Services or any software, documentation or data related to the Platform or Subscription Services.

15. CONFIDENTIALITY & NON-DISCLOSURE

In providing the Subscription Services, Company may have access to Customer’s confidential and proprietary Customer Data (“Confidential Information”). To the extent such Confidential Information is disclosed to Company: 1. Non-Disclosure Obligation. Company shall not disclose any Confidential Information to any third party for any reason without Customer’s prior written consent, other than to its employees or agents who have a need to know about such information in order to provide the Subscription Services. 2. Required Disclosure. In the event Company is requested or required by legal process to disclose any of the Confidential Information, Company shall give Customer prompt notice so that it may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, Company shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work with Customer to minimize the extent and effect. 3. Injunctive Relief. Both parties understand and agree that money damages will not be a sufficient remedy for any breach of Company’s confidentiality obligations under this Section, and that Customer shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies for a breach by Customer, but will be in addition to all other remedies available to Customer at law or in equity.

16. CUSTOMER SUPPORT

Customers should email Company at support@monograph.com for customer support and assistance. Company will respond to Customer’s email inquiries within a reasonable timeframe.

17. SECURITY AND PRIVACY

Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data in accordance with industry standard security requirements. Additionally, all Customer Data will be processed in accordance with Company’s Privacy Policy. Customer shall be responsible for ensuring compliance with any and all privacy, notice and consent rules or regulations and/or data collection laws or regulations applicable to its use of the Subscription Services.

18. REPRESENTATIONS AND WARRANTIES

Each Party represents and warrants that: 1. Good Standing. It is duly organized, validly existing and in good standing under the laws of the place of its origin, and possesses all the necessary authority to enter into and perform its obligations under this Terms of Service. 2. Corporate Authority. It has all requisite corporate power and authority to execute, deliver, and perform its obligations under this Terms of Service. 3. Compliance with Applicable Laws. It shall comply with all laws or regulations applicable to the performance of its obligations under this Terms of Service. 4. Export Compliance. Subscription Services may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. Customer shall not permit access or use any Subscription Services in a U.S. embargoed country or in violation of any U.S. export law or regulation.

19. TERMINATION

  1. Free Trial – Termination. Unless otherwise upgraded to paid Subscription Services tier, a Free Trial Subscription Service plan shall automatically expire at the end of the Free Trial term. Customer may terminate any Free Trial Subscription Services plan at any time for any reason without further obligation or liability.
  2. Automatic Termination. This Terms of Service and corresponding Subscription Services plan shall automatically terminate, without notice, (i) upon the institution by or against either party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either party’s debts, (ii) upon either party making an assignment for the benefit of creditors, or (iii) upon either party’s dissolution or ceasing to do business.
  3. Breach. Either Party may terminate this Terms of Service and corresponding Subscription Services plan if the other Party breaches any material provisions of this Terms of Service.
  4. Survival. The following Sections survive termination of this Terms of Service: Individual Binding Arbitration, Promotional License, Idea Submission License, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Indemnity, Limitation of Liability, and Choice of Law.

20. INDIVIDUAL BINDING ARBITRATION

EXCEPT AS OTHERWISE STATED HEREIN, any claim or controversy with Company arising out of or relating to the Platform, Subscription Services and/or this Terms of Service (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of this arbitration provision pursuant to these Terms of Service.

ANY ARBITRATION UNDER THIS TERMS OF SERVICE WILL BE ON AN INDIVIDUAL BASIS ONLY. THE PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE OR JOIN A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION, OR TO CONSOLIDATE THEIR ARBITRATION WITH OTHER ARBITRATIONS. YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JUDGE OR JURY. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING PROVISIONS SHALL REMAIN ENFORCEABLE.

The AAA’s rules, as well as forms for initiating arbitration proceedings, are available at www.adr.org. When initiating a request to arbitrate with the AAA, you must also send a copy of the completed form to: Monograph Inc. at 548 Market St PMB 87085, San Francisco, California 94104 and by email to legal@monograph.com.

Exception – Small Claims Court Claims. Notwithstanding the Parties’ agreement to resolve all disputes through arbitration, either party residing within the United States may seek relief in small claims courts for disputes or claims within the scope of that court’s jurisdiction.

21. DISCLAIMER OF WARRANTIES

UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SUBSCRIPTION SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THESE TERMS OF SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICES (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE YOU USE. EXCEPT WHERE PROHIBITED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT, AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON THE SUBSCRIPTION SERVICES

22. DISCLAIMER OF THIRD PARTY CONDUCT

COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES, IN CONNECTION WITH OR RELATED TO YOUR USE OF THE SUBSCRIPTION SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES REGARDING THE SERVICES, OR ANY OTHER THIRD PARTY SERVICES, GOODS, RESOURCES AND INFORMATION INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH OTHER THIRD PARTY SERVICES, GOODS, RESOURCES OR INFORMATION.

23. LIMITATION OF LIABILITY

NEITHER COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SUBSCRIPTION SERVICES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, SECURITY BREACH, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE PLATFORM OR SUBSCRIPTION SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR OF THE INABILITY TO USE, THE PLATFORM OR SUBSCRIPTION SERVICES, EXCEED FEES PAID IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

24. FUTURE FUNCTIONALITY

Customer agrees that its selection, registration and use of the Subscription Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.

25. INDEMNITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY, AND ITS COMPANY SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, VOLUNTEERS, ATTORNEYS, MANAGERS, LICENSORS, BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ALL DAMAGES, LOSSES, LIABILITIES, CLAIMS, EXPENSES, FEES OR COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) INCURRED IN CONNECTION WITH ANY CLAIM, DEMAND OR ACTION BROUGHT OR ASSERTED AGAINST ANY OF THE INDEMNIFIED PARTIES ARISING OUT OF OR RELATING TO CUSTOMER’S (I) USE OF THE SUBSCRIPTION SERVICES (II) BREACH OF THIS TERMS OF SERVICE, (III) VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY INTELLECTUAL PROPERTY RIGHT, PUBLICITY, PROPERTY OR PRIVACY RIGHT, (IV) A BREACH OF CUSTOMER’S REPRESENTATIONS OR WARRANTIES UNDER THIS TERMS OF SERVICE, AND/OR (V) A BREACH OF CUSTOMER’S OBLIGATIONS UNDER APPLICABLE LAW.

26. MISCELLANEOUS

  1. Force Majeure. Company will not be liable or responsible for any delays in providing the Subscription Services, or for failing to provide the Subscription Services, as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, terrorism, labor disruptions, strikes, lockouts, freight, embargoes, terrorism, natural disaster, denial of service attacks, war or acts of God.
  2. No Agency. No agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by this Terms of Service.
  3. Severability. The validity or unenforceability of any provision of this Terms of Service shall not affect the validity or enforceability of any other provision of this Terms of Service.
  4. Modifications. Our employees, volunteers or agents are not authorized to vary this Terms of Service. No modification of this Terms of Service shall be effective unless it is in writing and either signed by an authorized representative of Company or posted on the Platform.
  5. Choice of Law. This Terms of Service shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to or application of California’s conflict of law principles. The parties consent to the jurisdiction of the State of California, and venue in San Francisco County, with regard to any controversy or claim arising out of or relating to this Terms of Service, or the breach thereof.
  6. Assignment. Neither Party shall assign any of the rights or obligations under this Terms of Service without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Terms of Service in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
  7. Successors and Assigns. This Terms of Service is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
  8. No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Terms of Service will operate as a waiver thereof.
  9. Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
  10. Notices. All notices required or permitted to be given under this Terms of Service will be in writing and delivered to: Company at: Monograph Inc. at 548 Market St PMB 87085, San Francisco, California 94104  and by email to legal@monograph.com. All notices will be sent to Customer to the email address associated with their account or will be conspicuously posted on the Platform.

27. COMPLAINTS – CALIFORNIA RESIDENTS

If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Affairs 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.

28. ENTIRE AGREEMENT

This Terms of Service comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.

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