PLEASE READ THESE TERMS OF SERVICE CAREFULLY.
These Terms of Service (these “TOS”) set forth the legally binding terms and conditions that govern your use of the website located at and any o f its su bdomains or derivative URLs (collectively, the “Websites”) and any software or services provided through them in any manner including, but not limited to, our multi-tenant software application that we make available to subscribing customers via the internet for the purposes of aiding consumers in finding compatible physical therapists (the “Platform Services”, and collectively, with the Websites, the “Sites”).
By clicking on “I agree” (or a similar button) or by using or accessing the Sites, you (a) affirm that you are at least 18 years of age; (b) acknowledge that you have read and understand these TOS and each of the PS Policies and Ancillary Agreements incorporated herein (see Section 2.2); (c) represent and warrant that you have the right, power, and authority to enter into these TOS; and (d) accept these TOS and agree that you are legally bound by its terms. If you do not accept these terms, you may not access or use the Sites.
If you are entering into these TOS on behalf of a company, organization, or another legal entity, then except for this sentence (or as otherwise noted in a specific clause), “you” will refer to that entity, and you represent and warrant that you have the authority to bind that entity to these TOS; therefore, if you do not have such authority, or if you do not agree with these TOS, you must not accept these TOS. ViaSana may modify these TOS from time to time, subject to Section 2 (Acceptance of the TOS), below.
These TOS require the use of arbitration (see Section 14) on an individual basis to resolve Disputes, rather than jury trials or class actions, and also limit the remedies available to you in the event of a Dispute.
IF YOU DO NOT EXPRESSLY AGREE TO ALL OF THESE TOS, THEN YOU MAY NOT ACCESS OR USE THE SITES.
Intended Use of the Sites.
Nature of Services.
- Not for Emergencies. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY. The Sites are not for medical emergencies or urgent situations. Do not disregard or delay in seeking medical advice based on anything that appears or does not appear on the Sites. If you believe you have an emergency, call 911 immediately. Please seek emergency help or follow up care when recommended by a Provider or when otherwise needed. You should continue to consult with your primary medical provider and other healthcare professionals as recommended. Always seek the advice of a physician or other qualified healthcare provider concerning questions you have regarding a medical condition and before stopping, starting, or modifying any treatment or modification.
- Sites for Informational Purposes. The information presented on or through the Sites are made available for informational purposes only and does not constitute professional medical advice, diagnosis, treatment, or recommendations of any kind by ViaSana. You should always seek the advice of your qualified health care professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. Information provided by us is intended to be for general information purposes only, and is in no way intended to create a provider-patient relationship as defined by state or federal law. While we facilitate your selection of, and communications with, Providers, ViaSana does not provide medical services and any provider-patient relationship is between you and the Provider you select. Please see Section 12.1 for more information.
- Providers are Responsible for the Provision of Care. ViaSana does not provide medical advice or care. We merely provide the Sites to enable independent physical therapists and physical therapy groups with a network of physical therapy practitioners provide physical therapy services. Providers deliver clinical services via the Sites to their clients. No Provider is employed by ViaSana and we assume no responsibility for (a) the actions, advice, or counseling of any Provider; (b) any information a Provider shares with you through the Sites; or (c) the provision of services to you by any Provider. In addition, ViaSana does not provide any advice or representations in any manner regarding legal issues associated with any compliance obligations or steps necessary to comply with any local, state, or federal laws or regulations with respect to (x) the actions, advice, or counseling of any Provider; (y) any information a Provider shares with you through the Sites; or (z) the provision of services by any Provider. EACH PROVIDER, AND NOT VIASANA, IS RESPONSIBLE FOR THE QUALITY AND APPROPRIATENESS OF THE CARE THAT PROVIDER RENDERS.
- 1.1.4.Risks of Telehealth Services. By using the Sites, you acknowledge the potential risks associated with telehealth services. While we employ and incorporate industry-standard network and software security protocols to protect the privacy and security of the Sites and your Personal Data, some potential risks may include but are not limited to: (a) information that is transmitted being insufficient to allow for appropriate decision making by the Provider; (b) delays in evaluation or treatment due to failures of electronic equipment or the internet; (c) a lack of Provider access to complete medical records which may result in judgment errors; or (d) a failure of security and privacy protocols which may cause a loss of privacy with respect to your health information.
- 1.1.5.Product Policy. We do not endorse any products, supplies, equipment, or devices. If a Provider suggests or encourages the use of any product, the Provider does so as determined in his/her own discretion and professional judgment. Providers reserve the right to deny care for actual or potential misuse of the Services. You agree to fully and carefully read all provided product information and labels and to contact a physician concerning questions you have regarding a medical condition and before stopping, starting, or modifying the use of any product.
- 1.1.6.Not an Insurance Product. ViaSana is neither a health insurance or malpractice insurance company, the Sites are not an insurance products, and the amounts you pay to us or Providers are not insurance premiums.
- 1.1.7.Sites Intended for U.S.-Based Users. The Sites are controlled and operated from facilities within the United States. We make no representations that the Sites are appropriate or available for use in any other country, territory, or jurisdiction. You may not access the Sites from territories where the content, including, but not limited to, any information, materials, videos, webinars, images, infographics, alerts, texts, articles, assessments, checklists, forms, ratings, design, data, source code, analytics, photos, software, trademarks, copyrights, and/or other information (collectively, “Content”) on the Sites are prohibited. It is your sole responsibility to be aware of and to observe all applicable laws and regulations of your country, territory, or jurisdiction of residence and you must determine and satisfy yourself before accessing the Sites that you are allowed to access the Sites under those laws and regulations. IF YOU ARE LOCATED OUTSIDE OF THE UNITED STATES, YOU USE OR ACCESS THE SITES SOLELY AT YOUR OWN RISK AND INITIATIVE.
Acceptance of the TOS.
- Ancillary Agreements. Your use of some services, areas within the Sites, or certain features may be subject to additional specific guidelines, terms, conditions, rules, and/or agreements (that you may be required to affirmatively agree with) between you and us that set out additional, substantive terms, which will govern specific use of the applicable service, area, or feature, and/or your relationship with us when you make use of the Sites (each an “Ancillary Agreement”). Each Ancillary Agreement is incorporated by reference into these TOS and these TOS will continue to apply to you even after you have agreed to an Ancillary Agreement.
- TOS Subject to Change. We reserve the right, at our sole discretion and without prior notice, to amend, modify, or replace the TOS at any time for any reason (each such instance, “Updated TOS”). Updated TOS will become effective on the date it we post it. You are solely responsible for periodically checking for Updated TOS. References to “TOS” herein, except for in this sentence, include all Updated TOS. Your continued use of the Sites following the posting of any Updated TOS constitutes acceptance of the Updated TOS. You agree not to contest the admissibility or enforceability of the Sites' electronically stored copy of the TOS in any proceeding arising out of or related to the TOS. If there is a conflict between two versions of the TOS to which you have agreed or been deemed to agree, the more recent version shall take precedence unless it is expressly stated otherwise. YOU SHOULD REVIEW THE SITES FREQUENTLY FOR ANY CHANGES AND CONTACT YOUR LEGAL ADVISOR WITH ANY QUESTIONS.
Eligibility for Use of the Sites; Registration.
- Eligibility to Use the Sites. By accessing or using the Sites, you become a “Visitor” and you may access, browse, and use the publicly available portions of the Sites. However, to gain access to restricted portions of the Sites, you must complete the appropriate registration process to create a ViaSana user account (“Account”), become a registered user (a “User” who will be either a Registrant or Provider, as described herein). We reserve the right, at any time, for any reason, at our sole discretion, and without prior notice to: (a) modify, replace, or stop providing the Sites; (b) create usage limits for the Sites; (c) change, improve, or correct information, materials, and descriptions on or of the Sites; (d) refuse the registration of any Registrant or Provider; (e) cancel any Account; or (f) terminate, limit, or restrict your access to the Sites and/or the licenses granted herein, including the removal of Content and User Contributions. You should review the Sites frequently for changes and modifications.
User Access and Registration.
- 3.2.1.User Registration. You may register to use the Sites only if (a) you are a real person and you are at least 18 years old, fully able and competent to enter into the terms and conditions stated in this and other agreements on the Sites, and all registration information you submit is true, accurate, current, and complete in all material respects (“Accurate”); (b) you have the full right and authority to enter into, execute, and perform your obligations under the TOS and no actual, pending, or threatened claims, actions, proceedings, litigation, losses, expenses, damages, and costs including, but not limited to, reasonable attorneys' fees (each a “Claim”) would have a material adverse impact on your ability to perform as required by the TOS; and (c) if you are accessing the Sites on behalf of an entity – for example, your employer or a company you work for or control – you represent and warrant that you are authorized to accept the TOS on that entity’s behalf, that the entity is authorized to do business under applicable law in your jurisdiction, and you that you have the legal authority to bind the entity to these TOS (in which case, the references to “you” and “your” herein, except for in this sentence, refer to that organization or entity).
- 3.2.2.True, Accurate, Current, and Complete. You represent and warrant that all information that you provide or will provide shall be Accurate. We and our affiliates and agents are entitled to rely upon the information you provide as Accurate without any independent verification. We reserve the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves not to be Accurate. You shall indemnify, defend, and hold ViaSana and any ViaSana Associates harmless against any Claim arising out of or related to whether the information you provide is Accurate. “ViaSana Associates” means any of ViaSana’s officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and operational service providers and any of its affiliates, successors, and assigns, including any of their respective officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, and operational service providers.
Linking to the Sites.
- 3.3.1.Only with our express written consent, which we may withhold in our sole discretion, may you link to the Sites, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you may not establish a link in such a way as to suggest any form of association, approval or endorsement on our part. We reserve the right to withdraw linking permission without notice.
- 3.3.2.The Sites may provide features that enable you to (a) link from your own or certain third-party websites to Content on the Sites; (b) send emails or other communications with Content or links to Content; or (c) cause limited portions of Content to be displayed or appear to be displayed on your own or certain third-party websites. You may use these features solely as they are provided by us and solely with respect to the Content they are displayed with. However, you may not: (1) establish a link from any website that is not owned by you; (2) cause the Sites or portions of the Sites to be displayed, or appear to be displayed, on any other site by framing, deep linking, or in-line linking; (3) link to any part of the Sites other than the homepage; or (4) otherwise take any action with respect to the materials on the Sites that is inconsistent with any other provision of these TOS or applicable law. We reserve the right to disable all or any social media features and any links at any time without notice in our sole discretion.
- 3.4.1.The Basics. Using the Sites, persons interested in finding a physical therapist (each a “Registrant”) can receive physical therapy services from a licensed physical therapist (a “Provider”) who is authorized to deliver the services through use of the Sites. Providers are either (a) solo practitioners or (b) employed by or independent contractors to physical therapy groups with a network of physical therapy practitioners, in either case of (a) or (b) who provide physical therapy services to their clients. In order to connect with a Provider for services using the Platform Services, a Registrant must establish an Account by registering online, establishing login credentials, and creating a profile which will include Personal Data. Once registered, the Registrant can make mutual connections with a Provider of their choice.
- 3.4.2.Providers Not Employed by ViaSana. Providers use the Sites as a way to communicate with Registrants. Any information or advice received from a Provider comes from them alone, and not from us. Neither ViaSana, nor any of its subsidiaries or affiliates or any third party who may promote the Sites or provide a link to the Sites, shall be liable for any professional advice obtained from a Provider via the Sites, nor any information obtained on the Sites. We do not recommend or endorse any specific Providers, products, or procedures. PLEASE NOTE THAT PROVIDERS ARE NOT EMPLOYEES OR AGENTS OF VIASANA. ALL SERVICES RENDERED BY PROVIDERS AND NOT VIASANA. VIASANA MAKES NO WARRANTIES WITH RESPECT TO THE PROVIDERS AND SHALL NOT BE LIABLE FOR THE ACTIONS OF THE PROVIDERS UNDER ANY CIRCUMSTANCES. UNDER NO CIRCUMSTANCES SHALL VIASANA BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE ACTIONS OF THE PROVIDERS, INCLUDING, BUT NOT LIMITED TO, THE PROVISION OF SERVICES THROUGH THE SITES.
- 3.4.3.Providers Pay to Use the Sites. Providers listed through the Services enter into contracts with us, and may pay us a fee in order to be marketed through or to use the Services. To help you find Providers who may be suitable for your needs, and enable the maximum choice and diversity of Providers participating in the Services, we will provide you with lists and/or profiles of Providers. The lists we generate and provide to you are based on information that you provide to or request from us, such as insurance information, geographical location, and specialty. They may also be based on other criteria (including, for example, Provider availability, past selections by and/or ratings of Providers by you or by other Users, and past experience of Users with Providers). ViaSana does not receive any additional fees from Providers for featuring them through the Services, subject to Sponsored Providers as described below. We may show you advertisements or Sponsored Providers (“Sponsored Providers”) on the Sites, including above the search results. ViaSana receives additional fees from Providers for providing Sponsored Providers. Sponsored Providers shown through the Services are not, and should not be considered, an endorsement or recommendation by ViaSana of the Provider. You are ultimately responsible for choosing your own particular Provider.
- 3.4.4.Payment for Provider Services. Payment for the services is handled solely by the Provider with whom a Registrant meets. ViaSana does not play any role in your payment for the Services. VIASANA ASSUMES NO RESPONSIBILITY FOR YOUR USE OF ANY PAYMENT PROCESSING SYSTEM PROVIDED BY PROVIDERS. WHEN YOU SUBMIT YOUR CREDIT CARD INFORMATION FOR PAYMENT OF THE SERVICES, YOU DO SO UNDER THE TERMS AND CONDITIONS THEY SPECIFY. WE DO NOT GUARANTEE THE SECURITY OF YOUR INFORMATION WHEN PROCESSED BY PROVIDERS OR THEIR THIRD-PARTY PAYMENT PROCESSOR.
- 3.4.5.Notice of Privacy Practices. You agree that information provided by you in connection with the services of a Provider are governed by the Notice of Privacy Practices of that Provider
- 3.5.1.Registration for Providers. Prior to providing services, you must clear a background check and license verification and establish an Account (if an entity, for each of your Providers) by choosing a subscription plan, agreeing to a subscription agreement and business associate agreement, registering online, establishing login credentials, and creating a profile. The information collected includes Personal Data. Once registered, a Registrant can make a connection with you and you can choose to agree to provide services to them.
- 3.5.2.Provider Directory. As part of the Sites, Providers may choose to add a Provider profile to the public Provider directory hosted on the Sites and viewable by site visitors. VIASANA MAKES NO WARRANTIES WITH RESPECT TO THE ACCURACY OF THE CONTENT INCLUDED IN PROVIDER PROFILES DISPLAYED IN LISTS OR DIRECTORIES ON THE SITES.
- 3.5.3.Fees and Payment Terms. Use of the Sites by Providers may be subject to certain fees or charges (each a “Fee”) under a subscription agreement or another agreement with us. Any such Fees are subject to the terms of the applicable agreement. If you are an Authorized User of a Client who has contracted with us via a subscription agreement, you are bound by the restrictions of that agreement with respect to your use of the Sites. As an Authorized User of a Client, you may have certain additional liabilities and restrictions; please see the Client who authorized your use of the Sites for information regarding such additional restrictions. In the event that there is a conflict between a subscription agreement and these TOS, the subscription agreement will control. “Authorized User” means either (1) any named individual to whom a Provider has granted access to use the Platform Services on its behalf by providing login credentials, regardless of whether or not the Authorized User accesses the Platform Services, and which may include a Provider’s employees, independent contractors, customers, visitors, and affiliates. Other defined terms in this Section 3.5.3 will have the same meaning as in your subscription agreement.
Content and Messaging.
- Electronic Communications. When you use the Sites, or send emails, messages, and other communications from your desktop or mobile device to us, you are communicating with us or other Users electronically. You consent to receive communications from us electronically. You agree that (a) all agreements and consents can be signed electronically and (b) all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such notices and other communications be in writing. We may request further information from you to ensure that you have not fraudulently created your Account and you agree to provide such information. Should you fail to provide information as requested within a reasonable period following such a request, we reserve the right to suspend, discontinue, or deny your access to and use of the Sites until you so provide the requested information.
- Private Messages. When logged into the Platform Services, you can send and receive encrypted private messages with any other Users that your Account is associated with. In addition, you may send secure initial inquiries to those Users you wish to connect with. By default, when any new private messages are received, you will receive an email notification advising you to login to the Platform Services to view and respond. You can disable this email notification when logged into the Platform Services.
- Accessing Content. Users may upload Content that you may access when logged into the Sites. Content may be made available for (1) download only; (2) you to download, print, fill out and/or sign, and upload back to the Sites where it will be stored as part of your record; or sent to you to obtain an electronic signature, which means you are required to digitally sign and accept the Content, in which case you will have access to a summary report with links to view the Content and details of the submission.
- Consent to Receive Calls or Text Messages. By providing your mobile number you agree to be contacted by or on behalf of ViaSana or your Provider at the mobile number you have provided, including calls and text messages, to receive informational, Product or Service related communications relating to the Sites and the provision of services by a Provider. Message and data rates may apply. To stop receiving text messages, please adjust your profile settings or follow the directions in your text message to stop messages. We may confirm your opt out by text message. Withdrawing your consent to receive messages may cause certain Sites features or services to no longer be available to you, including, but not limited to, important and helpful information and reminders from your Provider.
Acceptable Use; User Conduct; Content Use Limitations.
- Acceptable Use. You must agree to our acceptable use policy (“AUP”) as may be updated by us from time to time and available at . Our AUP contains cer t ain restrictions to facilitate appropriate use by all Users including, but not limited to, the restrictions that you may not (a) use the Sites for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Sites; (b) provide login credentials or other login information to any third party; (c) share nonpublic Sites features or Content with any third party; (d) access the Sites in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Sites; or (e) engage in web scraping or data scraping on or related to the Sites including, but not limited to, collection of information through any software that simulates human activity or through any bot or web crawler. If we suspect any breach of the requirements of this Section 5.1 or the AUP, we reserve the right to suspend your access to the Sites without advanced notice in addition to such other remedies as we may have. Neither these TOS nor our AUP requires that we take any action against you or any other third party for violating the AUP, this Section 5.1,or these TOS, and we remain free to take any such action we see fit.
- User Conduct. You are solely responsible and liable for: (a) your use of the Sites including, but not limited to, your conduct and any conduct that would violate the requirements of the TOS applicable to you or your Authorized Users; and (b) any use of the Sites through your Account, whether authorized or unauthorized. In addition:
- 5.2.1.Unauthorized Access. You must take reasonable steps to prevent unauthorized access to the Sites including, but not limited to, by protecting your login credentials. You are solely responsible (a) for maintaining the confidentiality of your login credentials and Account, and (b) for periodically modifying your login credentials to maintain security. You may not share your login credentials, let anyone else access your Account, do anything else that might jeopardize the security of your Account, or transfer your Account to anyone without our prior express written permission. You acknowledge and agree that you are liable for any damages or losses to ViaSana and any other User for any use of your Account, either authorized or unauthorized and you shall indemnify, defend, and hold ViaSana and any ViaSana Associates harmless against any Claim arising out of or related to your failure to maintain the confidentiality of your login credentials and Account.
- 5.2.2.Requirement to Notify of Compromised Account. If you learn of or suspect unauthorized access to your Account or the Sites has occurred including, but not limited to, if you have concerns that your login credentials may have been compromised, you must notify us in writing through a secure method (which may or may not be through your Account on the Sites) at as soon as practicable, but in no case in less than 2 hours from the discovery of any unauthorized use of your Account or any other breach of security.
Content Use Limitations.
- 5.3.1.Content Use. Your use of the Sites and any Content, whether supplied by us, any other User, or any other third party may only be used for the lawful and intended purposes expressly authorized by us. Any misuse or unauthorized use of the Sites, the Content, or other violations of the TOS, may violate applicable law. You acknowledge and agree (a) that you are liable for compliance with all applicable laws including, but not limited to, laws governing the protection of Personal Data; (b) that you are solely responsible for ensuring compliance with the laws of your specific jurisdiction, as well as any restrictions that you may be subject to under any agency or department of your local, state, or federal government whether within the United States or elsewhere; and (c) that you authorize ViaSana to terminate your Account and access to the Sites at any time with or without notice and report you to the appropriate authorities and/or other interested parties, such as a claimed intellectual property owner if we become aware of any such misuse or unauthorized use.
- 5.3.2.Content You Provide. The Sites may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, forms, surveys, assessment modules, and other interactive features (collectively, “Interactive Services”) that allow Users to post, submit, publish, display or transmit (hereinafter, “post”) Content (each, a “User Contribution”) to other Users on or through the Sites. By posting a User Contribution to the Sites, you represent and warrant that you have or will have at the time of posting all necessary rights to make the User Contribution available on the Sites and acknowledge that all postings you make to the Sites will be considered non-confidential, non-proprietary, and available for public viewing. With respect to any User Contributions you submit or contribute, you acknowledge and agree that you, and not ViaSana, are responsible for and take fully responsibility for their Content, including that each is legal, reliable, appropriate, and Accurate. We are not responsible, or liable to any third party, for any User Contributions posted by you or any other User of the Sites.
- 5.3.3.Even if such User Contribution or activity does not violate applicable law, you are prohibited from posting or transmitting any material on or through the Sites that violates the AUP, gives rise to civil liability, could constitute or encourage conduct that would be considered a criminal offense, or otherwise violates any law. We reserve the right to determine, in our sole discretion, if User Contributions you post meets the foregoing definition and we will fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any such information or materials on the Sites. You agree to indemnify, defend, and hold ViaSana and any ViaSana Associates harmless against any Claim arising out of or related to the User Contributions that you post to the Sites.
Term and Termination.
- Effective Date. These TOS shall be effective as of the later of (a) the date on which you first accessed or used the Sites and, by so accessing or using, accepted these TOS, or (b) the date following your first access or use of the Sites after the date on which we posted Updated TOS to the Sites as recorded at the top of these TOS.
- Suspension of Services. We may permanently or temporarily terminate or suspend your access to the Sites, for any reason or for no reason, in our sole discretion, with or without notice or liability, including, but not limited to, if in our sole determination you violate any provision of the TOS. You agree that neither ViaSana, nor any ViaSana Associates will be liable to you or to any third party for any such modification, suspension, or discontinuance. You shall indemnify, defend, and hold ViaSana and any ViaSana Associates harmless against any Claim arising out of or related to such suspension or termination.
- Effects of Termination. Upon termination of the TOS or your access to the Sites, for any reason or no reason, you will continue to be bound by each of the terms in the TOS which, by their nature, should survive termination, including, but not limited to, ownership provisions, intellectual property, warranty disclaimers, indemnification, limitations of liability, dispute resolution, and any other provision that must survive to fulfill its essential purpose.
Digital Millennium Copyright Notice.
- Digital Millennium Copyright Act (DMCA) Claims. We take the intellectual property rights of others seriously and require that our Users do the same. The DMCA established a process for addressing claims of copyright infringement that we have implemented for the Sites. If you own a copyright or have authority to act on behalf of a copyright owner and want to report a claim that a third party is infringing that material on or through the Sites, we will expeditiously take appropriate action once you send a notice to our copyright agent (see Section 7.2) that includes all of the following: (1) a description of the copyrighted work that you claim is being infringed; (2) a description of the material you claim is infringing and that you want removed or access to which you want disabled and the URL or other location of that material sufficient for us to locate the material; (3) your address, telephone number, and email address; (4) the following statement: “I have a good faith belief that the use of the copyrighted material I am complaining of is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use)”; (5) the following statement: “The information in this notice is accurate and, under penalty of perjury, I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right that is allegedly infringed”; and (6) an electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf. You may address such claims to our designated copyright agent by sending an email to with the subje ct line “DMCA Removal Request.” Please note that this procedure is exclusively for notifying us and our affiliates that you believe your copyrighted material has been infringed. THE PRECEDING REQUIREMENTS ARE INTENDED TO COMPLY WITH OUR RIGHTS AND OBLIGATIONS UNDER THE DMCA, INCLUDING 17 U.S.C. § 512(c), BUT DO NOT CONSTITUTE LEGAL ADVICE. IT IS ADVISABLE TO CONTACT AN ATTORNEY REGARDING YOUR RIGHTS AND OBLIGATIONS UNDER THE DMCA AND OTHER APPLICABLE LAWS.
- Removal and Remedies. You acknowledge, accept, and agree that if we receive a notice of a claim of copyright infringement, we may immediately remove the identified materials from the Sites without liability to you or any other party and we will refer the claims of the Complaining Party to the United States Copyright Office for adjudication as provided in the DMCA. We may, in our sole discretion, disable or terminate the Accounts of those who are accused of copyright infringement or other intellectual property rights. This process does not limit our ability to pursue any other remedies we may have to address suspected infringement. You shall indemnify, defend, and hold ViaSana and any ViaSana Associates harmless against any Claim arising out of or related to removal of offerings under this Section 7.
Intellectual Property; Licenses.
- Our Property. All Content on the Sites are either our property or used with permission and you recognize that the Sites, its Content, and all its components are protected by copyright and other laws. We retain all right, title, and interest in and to the Sites, including, but not limited to, all software used to provide the Sites, all logos, and all trademarks reproduced through the Sites, and these TOS do not grant you any intellectual property rights in the Sites, or any of its components. The trademarks, logos, and/or slogans displayed on the Sites, including the mark ViaSana, (collectively the “Trademarks”) are owned by us and/or others. You shall not construe anything on the Sites as granting any license or right to use the Trademarks without our express written permission or the express written permission of the third-party owner of the Trademarks. Your misuse of the Trademarks, or any other Content on the Sites, except as provided in the TOS, is strictly prohibited. We will aggressively enforce our intellectual property rights to the fullest extent of the law.
- Feedback and Suggestions. You (or your affiliates’, successors’, or assigns’) officers, directors, employees, agents, representatives, licensors, advertisers, suppliers, legal or professional advisors, and operational service providers (“Representatives”) may voluntarily post, submit or otherwise communicate or transmit to us any questions, comments, suggestions, ideas, original or creative materials, or any other information about us or our products or services including, but not limited to, new features or functionality relating thereto, or any questions, comments, suggestions, ideas, original or creative materials, or other information (collectively, “Feedback”). You understand that we have not, will not, and do not agree to treat any Feedback that you or your Representatives provide to us as confidential. By providing us Feedback, you assign to us on your behalf, and on behalf of your Representatives, all right, title, and interest in the Feedback, and acknowledge that we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, including, without limitation, to develop, copy, publish, or improve the Sites or any product, offering, feature, or services in our sole discretion. Nothing will or may restrict our right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting you or your Representatives.
- 8.3.1.Limited License to Users and Search Engines. We grant to: (a) you a limited, revocable, non-exclusive, non-transferable license to view, copy, and print Content on the Sites for personal, non-commercial purposes; and (b) the operators of public search engines a limited, non-exclusive, non-transferable license to copy materials from publicly available areas of the Sites solely for creating publicly available, searchable indices of the Sites; provided, however, that (1) you may not use any robot, spider, or other automatic device, process, or means to access the Sites for any purpose, including monitoring or copying any of the material on the Sites; and (2) you must respect any robots.txt protocols and exclusions.
- 8.3.2.License to Your Content. By providing Content on the Sites, you grant us a royalty-free, non-exclusive, worldwide license, under your intellectual property rights, to copy, reformat, index, modify, display, distribute, and put to commercial and other uses the Content and any of your intellectual property that you provide or post to the Sites. We shall pay you no compensation with respect to our use such Content. We neither represent nor warrant that your use of materials displayed on the Sites will not infringe the rights of third parties not owned or affiliated with us. You further grant all Users a limited, revocable, non-exclusive, non-transferable license to view, copy, and print Content you post to the Sites for their personal, non-commercial purposes.
California Consumer Privacy Act.
- Notification to You. You acknowledge and agree (a) that we may send communications to you verbally or via any mailing address, email, telephone, or facsimile number provided by you to us through your Account; (b) to notify us of any changes in your address or contact details; (c) that all communications will be deemed delivered to you when sent and not when received; (d) that we may provide notifications, including those regarding modifications to the TOS, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on the Sites, as determined by us in our sole discretion; and (e) that you may opt out of certain means of notification as described in the TOS, provided however, that we are not responsible for any automatic filtering or blocking you or your network provider may apply including, but not limited to, to email notifications we send to the email address provided to us or via settings or options you may choose in your browser.
- Notification to Us. You shall send notices to us pursuant to the TOS to: ViaSana LLC, 908 Mitchell Rd, Nashville, TN 37206, Attn: Legal or or to such othe r addresses as we may provide to you through the TOS or other means of communication in the future. We will deem notices received by us upon the earlier of (a) actual receipt or delivery in person, (b) by certified mail return receipt requested; or (c) by email once you have received a written confirmation of receipt in the same thread as your original email; provided, however, that automatic replies will not constitute a written confirmation under this Section 10.2.
Disclaimer of Liability.
- USE AT YOUR OWN RISK.
- 12.1.1.Technical Limitations. You understand that the Sites are delivered online and is technical in nature and that problems may occur with internet connectivity. Internet availability may be limited or disrupted by things such as server maintenance, upgrades, or other problems (such as software or hardware malfunction). Any problems with internet availability or connectivity are outside the control of the ViaSana and ViaSana makes no guarantee that such Services will be available. Although ViaSana has taken reasonable steps to ensure the confidentiality and privacy of the Sites, we cannot guarantee the security of any internet transmissions or communications. YOU AGREE TO ASSUME THE RISK OF USING A DIGITAL PLATFORM AND TAKE FULL RESPONSIBILITY FOR THE SECURITY OF ANY COMMUNICATIONS OR SERVICES ACQUIRED ON YOUR OWN ELECTRONIC DEVICES AND IN YOUR OWN PHYSICAL LOCATION.
- 12.1.2.Information is for General Information Only. Any reliance you place on such information is strictly at your own risk. The Sites include Content provided by third parties. All statements and/or opinions expressed by any third party, and all Content not provided by ViaSana, are solely the opinions and the responsibility of the person or entity providing the applicable Content and do not necessarily reflect the opinion of ViaSana. YOU AGREE THAT ANY RELIANCE UPON ANY CONTENT OR INFORMATION DISTRIBUTED THROUGH OR ACCESSED FROM THE SITES OR PLATFORM SERVICES IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT SHALL VIASANA OR VIASANA ASSOCIATES BE LIABLE FOR DAMAGES UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY ARISING OUT OF OR RELATED TO YOUR ACCESS TO, OR USE OF THE SITES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITES OR PLATFORM SERVICES IS TO STOP USING THE SITES. IF USING MATERIALS FROM THE SITES RESULT IN THE NEED FOR SERVICING, REPAIR, OR CORRECTION OF EQUIPMENT OR DATA, YOU AGREE AND CONSENT TO ASSUME ANY SUCH COSTS.
- EXCLUSIONS IN SOME JURISDICTIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OF IMPLIED WARRANTIES INCLUDED HEREIN, SO THE EXCLUSIONS IN THIS SECTION 12 MAY NOT APPLY TO YOU.
- SITE AND PLATFORM SERVICES PROVIDED AS IS. YOU ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW VIASANA PROVIDES AND YOU ACCEPT THE SITES AND PLATFORM SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VIASANA: (A) HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITES WILL PERFORM WITHOUT INTERRUPTION OR THAT THE SITES WILL BE FROM INACCURACIES, FAILURES OF PERFORMANCE, ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS IN OPERATION, TRANSMISSIONS, COMPUTER VIRUSES, OR LINE, OR SITE AND PLATFORM SERVICES FAILURES AND WE SHALL ASSUME NO RESPONSIBILITY FOR, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE SITES OR YOUR DOWNLOADING OF ANY CONTENT FROM THE SITES ; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT USER DATA WILL REMAIN PRIVATE OR SECURE; AND (D) NEITHER ENDORSES NOR REPRESENTS THE COMPLETENESS, RELIABILITY, OR ACCURACY OF ANY CONTENT OR INFORMATION DISTRIBUTED THROUGH OR ACCESSED FROM THE SITES , AND WE NEITHER PERFORMED ANY INVESTIGATION INTO SUCH INFORMATION NOR SHALL WE BE LIABLE FOR ANY INVESTMENT DECISIONS MADE BASED UPON SUCH INFORMATION.
- AVAILABILITY. YOU ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW VIASANA DOES NOT AND SHALL NOT GUARANTEE AND WE EXPRESSLY EXCLUDE ALL LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO, OR REGARDING YOUR USE, DELAY, OR ANY UNAVAILABILITY OF THE SITES AND THEIR CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF MONEY, SUSPENSION OR TERMINATION OF YOUR ACCOUNT, OR FOR ANY DAMAGE CAUSED TO YOUR COMPUTER, COMPUTER SOFTWARE, PLATFORMS, PROGRAMS, AND THE DATA THEREON. UNDER NO CIRCUMSTANCES WILL VIASANA OR VIASANA ASSOCIATES BE LIABLE FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR ANY OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS INTERRUPTION) OF ANY KIND WHETHER IN AN ACTION IN CONTRACT, TORT, OR NEGLIGENCE ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE ANY PART OF THE SITES OR ANY THIRD-PARTY LINK OR IN CONNECTION WITH OR AS A RESULT OF ANY INACCURACY, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION, TRANSMISSION, COMPUTER VIRUS, OR LINE OR PLATFORM FAILURE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, AND/OR EXPENSES.
- USER CONTENT. YOU ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW VIASANA DOES NOT AND SHALL NOT BE RESPONSIBLE AND WE EXPRESSLY EXCLUDE ALL REPRESENTATION AND WARRANTIES, EXPRESS OR IMPLIED, ARISING OUT OF, RELATING TO, OR REGARDING ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER.
- LIMIT TO LIABILITY. LIABILITY ARISING OUT OF OR RELATED TO THESE TOS OR THE USE OF THE SITES WILL NOT EXCEED ONE HUNDRED DOLLARS. IN NO EVENT WILL VIASANA BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TOS OR THE USE OF THE SITES . THE LIABILITIES LIMITED BY THIS SECTION 12 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF VIASANA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 12.6, YOU AGREE AND CONSENT THAT VIASANA’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO COMPENSATORY DAMAGES AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR CLARITY, THE LIABILITY LIMITS AND OTHER RIGHTS STATED IN THIS SECTION 12.6 SHALL APPLY LIKEWISE TO VIASANA ASSOCIATES.
- LIMITATION ON TIME TO FILE CLAIMS. YOU ACKNOWLEDGE AND AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TOS OR THE SITES MUST BE BROUGHT WITHIN SIX MONTHS FOLLOWING THE CAUSE OF ACTION OF THE APPLICABLE CLAIM; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- CONFLICTS. NOTWITHSTANDING THE FOREGOING, IF A WRITTEN AGREEMENT BETWEEN YOU AND VIASANA CONFLICTS WITH THE LIMITATIONS IN THIS SECTION 12, THE OTHER AGREEMENT SHALL CONTROL.
- You agree to indemnify, defend, and hold ViaSana and ViaSana Associates harmless from and against any and all Claims resulting from any breach or violation of the TOS by you or arising out of or related to your use of the Sites and whether or not such Claims arise out of or are related to our negligence. For clarity, with respect to this Section 13 and all other sections which expressly provide indemnification of ViaSana by you, Claims shall include, but are not limited to, Claims by you or your employees, agents, or Authorized Users: (a) related to unauthorized disclosure or exposure of Personal Data; (b) related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos, or other Content uploaded to the Sites through an Account; and (c) that use of the Sites through an Account harasses, defames, or defrauds a third party or (d) violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such Claim and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such negotiations, as requested by us.
- Agreement to Amicably Resolve Disputes. In the event of any Claim, controversy, or alleged dispute between you and ViaSana or ViaSana Associates (each a “Dispute”), and except to the extent necessary for an IP Protection Action, you hereby agree to attempt in good faith to amicably to resolve any Dispute through the following procedures. “IP Protection Action” means any action to seek injunctive or other equitable relief in a court of competent jurisdiction solely to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. TO THE FULLEST EXTENT PERMITTED BY LAW, FAILURE TO FOLLOW THESE PROCEDURES SHALL CONSTITUTE YOUR WAIVER OF YOUR RIGHTS TO ANY FURTHER PROCEEDING WITH RESPECT TO ANY DISPUTE, DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THE TOS OR YOUR USE OF THE SITES. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO FURTHER DISPUTE RESOLUTION PROCEEDINGS INCLUDING THE RIGHT TO ARBITRATION OR LITIGATION.
- Dispute Conference. In the event of a Dispute, either party may call for a resolution conference by sending written notice to the other at the address provided by you via your Account or by us at the address in Section 10.2. In the case of an entity, within 3 business days of the response to the other party that the notice email was received, each party shall designate an executive with authority to make commitments to represent the party in order to resolve the Dispute (a “Senior Manager”). The parties’ (or the Senior Managers) shall meet in person or by telephone (“Dispute Conference”) within 3 business days of their designation and shall negotiate in good faith to resolve the dispute. The Dispute Conference must commence within 30 days following obtaining knowledge of the cause of action forming the basis of the Dispute. Failure to commence a Dispute Conference within the 30-day period constitutes a waiver of your rights to any further proceeding. Except to the extent necessary for an IP Protection Action, neither party shall initiate mediation, arbitration, or litigation until 30 business days after the Dispute Conference.
- Mediation. Only if the Dispute remains unresolved following the Dispute Conference, a party may attempt to resolve such dispute through mediation under the auspices of the American Arbitration Association in Davidson County, Tennessee, at that party’s sole expense. Mediation must commence within 90 days following obtaining knowledge of the cause of action forming the basis of the Dispute. Failure to commence mediation within the 90-day period constitutes a waiver of your rights to any further proceeding. Except to the extent necessary for an IP Protection Action, neither party may initiate arbitration or litigation until 30 days after mediation.
- Arbitration. Only if the Dispute remains unresolved following mediation, a party may attempt to resolve such dispute through arbitration under the auspices of the American Arbitration Association (“AAA”) in Davidson County, Tennessee, at that party’s sole expense, subject to the following: (a) Parties agree to submit any Dispute for resolution by final binding arbitration after serving written notice, which notice shall state in detail the controversy, question, claim, or alleged breach along with details regarding the parties’ attempt to resolve such Dispute through the preceding procedures. Upon such notice and attempts to resolve, a party may then commence an arbitration proceeding, before a single arbitrator to be selected by the AAA, under the rules of the AAA under its Commercial Arbitration Rules. Arbitration must commence within 6 months following obtaining knowledge of the cause of action forming the basis of the Dispute. Failure to commence arbitration within the 6-month period constitutes a waiver of your rights to any further proceeding. (b) In any arbitration and subject to the ultimate discretion of the presiding arbitrator, each side will be limited to a maximum of one day of argument (including rebuttal), and the parties agree in good faith to minimize discovery burdens (e.g. confine the scope to actual areas in dispute and limit the topics and number of pages on which information is requested to matters directly relevant). (c) Any decision of the arbitrator shall be final and binding and may not be appealed to any court of competent jurisdiction, or otherwise, except upon claim of fraud or corruption, provided however, that implementation of such decision shall in no way be delayed or otherwise impaired pending the outcome of any such appeal. Any court having jurisdiction thereof may enter judgment upon the award rendered in such arbitration. (d) Notwithstanding the foregoing, you agree that the following matters shall not be subject to binding arbitration, at our sole election: (1) any Dispute arising out of or related to allegations of criminal activity; (2) any Disputes concerning our intellectual property rights; and (3) any claim for injunctive relief.
- No Joint Disputes or Class Actions. You agree that any claim, controversy, or alleged dispute between you and us, our members, or our affiliates (“Dispute”), will be limited between you, individually, and us. To the fullest extent allowable by law, you agree that no dispute resolution proceeding of any kind, whether mediation, arbitration, or litigation shall be joined with any other party or decided on a class action basis.
- Choice of Law; Jurisdiction; Waiver of Jury Trial. All Claims arising out of or related to the TOS and/or the use of the Sites including, but not limited to, any IP Protection Action or any other Dispute which is not subject to arbitration, shall be governed solely by the internal laws of the State of Tennessee, including, but not limited to, applicable federal law and without reference to any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties or other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts located in Davidson County, Tennessee. You hereby agree to the personal and exclusive jurisdiction and venue of such courts and waive any claim that such venue is improper or inconvenient. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY WAIVE YOUR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR RELATED TO THE TOS AND/OR THE USE OF THE SITES. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. This Section 14.6 governs all Claims arising out of or related to the TOS and/or the use of the Sites, including, but not limited to, negligence, contract, tort, strict product liability, or otherwise.
- Confidentiality of Information. You should not post any confidential or proprietary information to publicly available portions of the Sites. However, as a User, you shall protect all Content with the same degree of care you use to protect your own information of similar nature and importance, but in no case with less than reasonable care.
- Independent Contractors. The parties to these TOS are independent parties and shall so represent themselves in all regards. Neither party will or shall make any commitment on the other party’s behalf.
- Assignment & Successors. You may not assign any of your rights or delegate any of your responsibilities or obligations hereunder without our express written consent. These TOS will be binding upon and inure to the benefit of the parties’ respective successors and assigns, as applicable.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the TOS invalid or otherwise unenforceable in any respect. If a provision of the TOS is held to be invalid or otherwise unenforceable, you agree to allow us to replace such void or unenforceable provision of the TOS with a valid and enforceable provision that will achieve, to the extent possible, the economic, business, and other purposes of such void or unenforceable provision and each such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law. The remaining provisions of the TOS will continue in full force and effect.
- No Waiver. Neither party will be deemed to have waived any of its rights under the TOS by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. A waiver of a breach of the TOS shall not be construed as a waiver of any continuing or succeeding breach of the TOS, the TOS themselves, or a waiver of any right under these TOS.
- Interpretation. The titles and headings of the paragraphs have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of these TOS. “Include(s)” and “including” shall be deemed to be followed by “but not limited to.” “Or” is not exclusive. “Herein” refers to the TOS as a whole. These TOS shall be construed without regard to any presumption, rule of construction, or interpretation against the drafting party.
- Entire Agreement. These TOS set forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.