END USER LICENSE AGREEMENT - VERSION SEPTEMBER 1, 2017
This End User License Agreement (this “Agreement”)
is made and entered by and between Logical Images, Inc. d/b/a VisualDx, a New York
corporation with an address at 339 East Avenue, Suite 410, Rochester, NY 14604 (“VisualDx”),
and you (“Customer”), a purchaser of a license for and/or user of the software hosted
by VisualDx known as VisualDx (the “Software”). By purchasing a license for and/or
using the Software, Customer acknowledges that Customer has received this Agreement and understands,
agrees to, and accepts, without limitation or qualification, this Agreement and all of the following
terms and conditions of this Agreement without modification:
- GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, VisualDx hereby grants
to Customer a non-exclusive, non-transferable license to access and use the Software during the License
Term (as defined below) for Customer's own individual clinical and educational use only (the “License”).
Customer may not share the Software or access thereto with any other individual or entity. Notwithstanding
anything in this Agreement to the contrary, Customer will not use the Software in any way that is unlawful
or criminal, harms VisualDx, or breaches Customer's obligations under this Agreement or any other agreement
by and between Customer and VisualDx. For purposes of this Agreement, “VisualDx Content”
means the images, illustrations, text, data, databases, data structures and relationships, designs,
documentation, materials, and other content that are contained in or are otherwise part of or make up
- LICENSE RESTRICTIONS.
- Customer may only use the Software, the VisualDx Content, and any accompanying documentation made
available by VisualDx to Customer related thereto as expressly provided in this Agreement. Customer
may not sell, resell, license, sublicense, copy, modify, transfer, assign, loan, lease, distribute,
or otherwise commercially exploit, make available to any other individual or entity, or put to public
use the Software, the VisualDx Content, or any accompanying documentation made available by VisualDx
to Customer related thereto, in whole or in part, in any way. Customer may not create derivative works
of or based upon the Software, the VisualDx Content, or any accompanying documentation made available
by VisualDx to Customer related thereto, or any part thereof. Customer may not modify, adapt, hack,
reverse engineer, decompile, or disassemble the Software or the Software's source code or object
or executable code, or any part thereof, or cause or permit any third party to do so. Without limiting
the generality of the foregoing, VisualDx Content may not be copied, downloaded, reproduced, repurposed,
distributed, sold, or otherwise commercially exploited, made available to any other individual or entity,
or put to public use in any way (including, without limitation, for use in performing vision science
or machine learning or to train or test deep learning or artificial intelligence algorithms in any way),
all of which are strictly prohibited by VisualDx, without the prior written consent of VisualDx. Customer
will not remove, modify, or obscure any copyright, patent, trademark, or other intellectual property
notice included in or on the Software, the VisualDx Content, or any accompanying documentation made
available by VisualDx to Customer related thereto.
- Notwithstanding anything in this Agreement to the contrary, VisualDx hereby reserves all rights
and licenses in and to the Software not expressly granted to Customer under this Agreement (including,
without limitation, all modification rights, translation rights, and rental rights and rights to source
code and object or executable code). Without limiting the generality of the foregoing sentence, VisualDx
expressly reserves its exclusive right under all applicable patent, copyright, trademark, trade secret,
and other intellectual property laws to distribute the Software by any means. Customer acknowledges
that, subject to the license granted to Customer by VisualDx pursuant to this Agreement, all right,
title, and interest in and to the Software (including, without limitation, all associated patent, copyright,
trademark, trade secret, and other intellectual property rights and all moral rights related thereto)
are owned by VisualDx or VisualDx's licensors and will be retained by VisualDx or VisualDx's
- None of the Software or underlying information or technology may be downloaded, exported, or
re-exported into any country to which the United States ("U.S.") has embargoed goods, or to anyone
on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's
Table of Deny Orders, or located in or under the control of, any country subject to such export controls.
- MAINTENANCE; UPDATES. Any maintenance, updates, modifications, and enhancements made to the Software
from time to time during the License Term will be governed by this Agreement, unless accompanied by
- LICENSE FEES; ADDITIONAL PAYMENT TERMS; TAXES. As consideration for the License, Customer will pay
VisualDx the license fees set by VisualDx for the License at the time Customer purchased the License
(the “License Fees”) in accordance with the payment terms also set by VisualDx at
that time. All License Fees and other amounts payable by Customer to VisualDx pursuant to this Agreement
will be paid in the lawful money of the United States of America. If Customer does not pay the License
Fees or any other amount payable by Customer to VisualDx pursuant to this Agreement on or before their
due date, VisualDx, at its sole discretion, may, without prejudice to any other rights it has, charge
Customer a late fee of 1.5% of the past due amount per month or fraction thereof until such past due
amount is paid in full, but in no event more than the maximum rate permitted by applicable law. All
License Fees and other amounts payable by Customer to VisualDx pursuant to this Agreement are exclusive
of all applicable federal, state, local, and foreign sales, use, value added, excise, and other similar
taxes arising out of or in connection with this Agreement (excluding taxes based on VisualDx's
net income) (collectively, “Sales Tax”). Except to the extent of any applicable and
validated exemption, Customer will promptly pay VisualDx any Sales Tax owed within 30 days after receipt
of an invoice from VisualDx for such Sales Tax.
- TERM; TERMINATION. The term of this Agreement and the License hereunder will be for the term selected
by Customer at the time Customer purchased the License or in the case where Customer signed up for a
free trial, the trial period designated by VisualDx for such free trial at that time, unless this Agreement
and the License hereunder is earlier terminated as hereinafter provided (the “License Term”).
VisualDx may, at its option and sole discretion, terminate this Agreement and the License hereunder
immediately or suspend Customer's access to the Software without notice to Customer if (a) Customer
fails to pay when due any License Fees or other amounts that VisualDx is entitled to receive pursuant
to this Agreement or (b) breaches, defaults under, or fails to perform or observe any of its representations,
warranties, covenants, or obligations under this Agreement. In addition, VisualDx may terminate this
Agreement for convenience by giving Customer 30 days prior written notice, and in the event of any such
termination for convenience, VisualDx will refund to Customer any portion of the License Fees paid in
advance by Customer prorated to the date of such termination in such manner as VisualDx, in its sole
discretion, determines. Termination of this Agreement and the License hereunder or the suspension of
Customer's access to the Software will be in addition to and not in lieu of any other legal or
equitable remedies available to VisualDx under this Agreement or otherwise. All of VisualDx's
rights and remedies set forth in this Agreement or otherwise conferred upon or reserved to VisualDx
are cumulative and not exclusive of any other rights or remedies which VisualDx otherwise has or would
have under this Agreement or otherwise, and may be exercised singularly, successively, or together at
the sole discretion of VisualDx as often as occasion may arise or as may be deemed expedient.
- U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation are provided with RESTRICTED RIGHTS.
Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or in
subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19,
- NON-DISCLOSURE. Customer will keep confidential any non-public information and know-how disclosed
to Customer by VisualDx in any form or of any type, no matter the medium. Customer's obligation
under this Section will survive the termination of this Agreement until such time as the information
protected hereby is in the public domain.
- MEDICAL DISCLAIMER. THE SOFTWARE DOES NOT PROVIDE MEDICAL ADVICE OR DIAGNOSE A PERSON'S HEALTH CONDITION.
IN ADDITION, IT IS NOT INTENDED TO REPLACE OR BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, JUDGMENT,
DIAGNOSIS, OR TREATMENT. THE SOFTWARE IS A CLINICAL REFERENCE TOOL THAT PROVIDES INITIAL COMPARATIVE INFORMATION
FOR INFORMATIONAL PURPOSES ONLY AND IS INTENDED TO BE AN ADJUNCT TO TRADITIONAL MEDICAL INFORMATION SOURCES.
THE PRACTICE OF MEDICINE IS A COMPLEX PROCESS THAT INVOLVES THE SYNTHESIS OF INFORMATION FROM A MULTIPLICITY OF
SOURCES. THE INFORMATION PROVIDED BY THE SOFTWARE DELIVERS INFORMATION SIMILAR TO THAT OF A TEXTBOOK AND IS BUT
ONE OF THE SOURCES THAT MAY BE USED IN ESTABLISHING A DIAGNOSIS FOR A PATIENT. THE SOFTWARE AND ANY INFORMATION
PROVIDED THEREBY SHOULD NEVER BE SOLELY RELIED UPON AS A VERIFIED DIAGNOSIS OF A PERSON'S HEALTH CONDITION.
VISUALDX ACCEPTS NO RESPONSIBILITY FOR THE CORRECTNESS OF ANY DIAGNOSIS MADE BY ANY PERSON OR ENTITY BASED IN WHOLE
OR IN PART UPON THE SOFTWARE, THE USE THEREOF, OR ANY INFORMATION PROVIDED THEREBY. THE USE OF THE SOFTWARE AND
RELIANCE ON ANY INFORMATION PROVIDED THEREBY IS SOLELY AT ONE'S OWN RISK. IF A NON-HEALTHCARE PROVIDER IS USING
THE SOFTWARE FOR HIS OR HER OWN PERSONAL USE, SUCH PERSON SHOULD NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR
DELAY IN SEEKING IT BASED ON THE SOFTWARE, THE USE THEREOF, OR ANY INFORMATION PROVIDED THEREBY. SUCH PERSON
SHOULD PROMPTLY CONTACT HIS OR HER OWN HEALTH CARE PROVIDER REGARDING ANY MEDICAL CONDITIONS OR MEDICAL QUESTIONS
THAT PERSON MAY HAVE.
- NO WARRANTY. THE USE OF THE SOFTWARE IS AT CUSTOMER'S OWN RISK. THE SOFTWARE AND ANY OTHER PRODUCTS OR SERVICES
PROVIDED BY VISUALDX PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS”,
“WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED BY STATUTE, USAGE, CUSTOM OF TRADE, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT). Without limiting the generality of
the foregoing, VisualDx makes no representations or warranties regarding the following: (a) the accuracy, correctness,
quality, reliability, completeness, security, availability, currentness, or timeliness of the Software or the use of
or the results of the use of the Software; or (b) the approval or compliance of the Software or any software tools
available through the Software by any government or other entity. Furthermore, when using the Software, information
will be transmitted over a medium that may be beyond the control and jurisdiction of VisualDx and its suppliers.
Accordingly, VisualDx assumes no liability for or relating to the delay, failure, interruption, security, theft, or
corruption of any data or other information transmitted in connection with use of the Software.
- LIMITATION OF LIABILITY AND DAMAGES.
- No Liability for Indirect Damages. IN NO EVENT WILL VISUALDX BE LIABLE TO CUSTOMER OR
ANY PERSON OR ENTITY CLAIMING THROUGH CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL,
PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT,
ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY
TO USE THE SOFTWARE, WHETHER ARISING UNDER CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY,
ENTERPRISE LIABILITY, PRODUCT LIABILITY, ANY OTHER THEORY OF LIABILITY, OR OTHERWISE, AND WHETHER OR
NOT VISUALDX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE OTHERWISE FORESEEABLE
(INCLUDING, AS EXAMPLES OF SUCH DAMAGES, BUT NOT IN LIMITATION THEREOF, PERSONAL INJURY OR DEATH, LOSS
OF USE, PRIVACY, BUSINESS INFORMATION, DATA, REVENUE, PROFITS, OR GOODWILL, DAMAGE TO BUSINESS OR BUSINESS
RELATIONS, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR FACILITIES, ECONOMIC
LOSSES, PROPERTY DAMAGE, OR ATTORNEYS' FEES AND DISBURSEMENTS). THIS SECTION WILL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
- Limited Liability for Direct Damages. WITHOUT LIMITING THE GENERALITY OF SECTION 10(A)
ABOVE AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE TO THE CONTRARY, VISUALDX'S
MAXIMUM AGGREGATE LIABILITY, DIRECT OR OTHERWISE, TO CUSTOMER OR ANY PERSON OR ENTITY CLAIMING THROUGH
CUSTOMER, IF ANY, RESULTING FROM, ARISING OUT OF, OR RELATED TO THIS AGREEMENT, ANY ALLEGED OR ACTUAL
BREACH OF THIS AGREEMENT, OR THE USE OF, THE RESULTS OF THE USE OF, OR THE INABILITY TO USE THE SOFTWARE
WILL NOT EXCEED THE LICENSE FEES PAID BY CUSTOMER TO (AND ACTUALLY RECEIVED BY) VISUALDX IN THE 6 MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO CUSTOMER'S CLAIM OF LIABILITY AGAINST VISUALDX.
THIS SECTION WILL SURVIVE THE TERMINATION OF THIS AGREEMENT.
- TIME LIMIT TO BRING CLAIM. CUSTOMER HEREBY AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY,
ANY CLAIM OR CAUSE OF ACTION THAT CUSTOMER MAY HAVE AGAINST VISUALDX ARISING FROM, CONNECTED WITH, OR
RELATED TO THIS AGREEMENT OR THE SOFTWARE IN ANY MANNER WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE
USE OF THE SOFTWARE BY CUSTOMER OR ANY OTHER PERSON OR ENTITY) MUST BE FILED AGAINST VISUALDX IN THE
APPROPRIATE COURT OF LAW LOCATED IN MONROE COUNTY, NEW YORK WITHIN 1 YEAR AFTER SUCH CLAIM OR CAUSE
OF ACTION AROSE OR SUCH CLAIM OR CAUSE OF ACTION WILL BE FOREVER BARRED. THIS SECTION WILL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
- NOTICE REGARDING LIMITATIONS, DISCLAIMERS, AND EXCLUSIONS. Please note that some jurisdictions may
not allow the limitations, disclaimers, and exclusions set forth in Sections 9-11 above, so some of
those limitations, disclaimers, and exclusions may not apply to Customer. As such, notwithstanding anything
in this Agreement to the contrary, the limitations, disclaimers, and exclusions set forth in Sections
9-11 above apply to the maximum extent permitted by applicable law, and are not intended to deprive
Customer of any mandatory protections provided to Customer under applicable law. Customer should check
Customer's local laws for any restrictions or limitations regarding the limitations, disclaimers,
and exclusions set forth in Sections 9-11 above.
- CUSTOMER REPRESENTATIONS AND WARRANTIES. Customer represents and warrants to VisualDx, as of the
date of this Agreement and during the License Term, that: (a) Customer is at least 18 years of age and
has attained the age of majority in the state in which Customer resides; (b) all information and data
that Customer has submitted or otherwise given, or submits or otherwise gives in the future, to VisualDx
in connection with or related to this Agreement, the Software, the License, signing up for or renewing
the License, any other agreements, licenses, or subscriptions entered into by and between Customer and
VisualDx, or Customer's use of the Software or any other products or services of VisualDx is true, correct,
and complete in all material respects (in the event that any such information and data changes, Customer
will promptly contact VisualDx to advise VisualDx of the change and provide VisualDx with the updated
information and data); (c) this Agreement is a valid and binding obligation of Customer and is enforceable
against Customer in accordance with its terms; and (d) Customer is not a party to or subject to any
agreement, judgment, decree, or order that would directly or indirectly affect its ability to enter
into or perform its obligations under this Agreement. This Section will survive the termination of this
- INDEMNIFICATION. Customer will, at Customer's sole expense, indemnify, defend, and hold harmless
VisualDx and VisualDx's officers, directors, managers, members, shareholders, agents, representatives,
successors, and assigns (the “Indemnifiable Parties”) from and against any and all
Losses (as defined below) resulting from, arising out of, or related to: (a) any breach of or any inaccurate,
false, or fraudulent representation or warranty made by Customer in this Agreement; (b) any breach or
default in the performance of any covenant or agreement made by Customer in this Agreement; (c) the
use of the Software by Customer; or (d) any willful misconduct or unlawful or negligent acts or omissions
of Customer. The Indemnifiable Parties will provide reasonable notice to Customer of any claim asserted
by a third party against the Indemnifiable Parties that may give rise to a claim for indemnification
pursuant to this Section and Customer will take up the defense of such claim. The Indemnifiable Parties
will provide reasonable assistance to Customer as reasonably necessary for Customer to defend any such
third party claim, provided that the Indemnifiable Parties will have the right to fully participate
in such defense at their own expense. Customer will have the right to settle the matter upon written
consent of the Indemnifiable Parties, which consent will not be unreasonably withheld. For purposes
of this Section, “Losses” means any and all losses, damages, penalties, expenses,
costs, court costs, professional fees (including, without limitation, reasonable attorneys' fees
and disbursements), interest, disbursements, judgments, liens, and liabilities of any kind or nature
whatsoever (including, without limitation, claims for the injury to or the death of any person or the
damage to any property (including, without limitation, loss of use thereof)). VisualDx reserves the
right, at VisualDx's own expense, to assume the exclusive defense and control of any matter otherwise
subject to indemnification by Customer, in which event Customer will cooperate with VisualDx in asserting
any available defenses. This Section will survive the termination of this Agreement.
- CHANGES TO THIS AGREEMENT. VisualDx reserves the right, at any time and without notice, to change,
modify, add to, or delete portions of this Agreement, simply by posting such change to this Agreement
in the application in which it appears. Any such change will be effective immediately upon such posting.
It is Customer's responsibility to regularly check the application to determine if there have
been changes to this Agreement and to review such changes. If VisualDx make any changes to this Agreement,
VisualDx will indicate at the top of this Agreement the date this Agreement was last revised. A license
purchased for and/or use of the Software prior to any such change to this Agreement will continue to
be governed by the version of this Agreement in effect at the time of such purchase or prior use. However,
Customer's purchase of a license for and/or use of the Software after any such changes constitutes
Customer's acceptance of the new Agreement. If Customer does not agree to and accept, without
limitation or qualification, all of the terms and conditions of this Agreement (or any future Agreement)
without modification, do not purchase a license for and/or use (or continue to purchase or use) the
- This Agreement will be governed by, and interpreted and construed in accordance with, the laws
of the State of New York, one of the United States of America, without regard to the principles of conflict
of laws, and will be binding on the parties to this Agreement in the United States and worldwide. Any
suit or proceeding related to this Agreement will be commenced exclusively in the state or federal courts
located in Monroe County, New York, and each party to this Agreement irrevocably consents to the exclusive
jurisdiction and venue of such courts.
- If Customer breaches or defaults in the performance of any covenant or agreement made by Customer
in this Agreement, Customer will pay VisualDx for all costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements, internal legal costs, court costs, expenses of investigation,
and expert fees) incurred by VisualDx in connection with VisualDx's enforcement of its rights
under this Agreement or collection of any amount due VisualDx pursuant to this Agreement, whether or
not suit is brought. This Section will survive the termination of this Agreement.
- Any notice, consent, demand, or other communication required or permitted under this Agreement
will be in writing, addressed to the party that the same is directed using the address set forth in
this Agreement or with respect to Customer's address, Customer's most recent address on
file with VisualDx (or such other address as the party may designate by like notice from time to time),
and deemed delivered to and received by the party that the same is directed for all purposes as of the
date that such notice is: (i) with respect to Customer only, actually received by Customer, if sent
by electronic mail; (ii) actually received by the Party that the same is directed, if delivered personally;
(iii) 1 business day after it was sent, if sent by reputable overnight courier service; or (iv) 3 business
days after it is deposited in a regularly maintained receptacle for the deposit of U.S. mail, if sent
by registered or certified U.S. mail, postage and charges prepaid.
- If any provision of this Agreement is finally determined to be unenforceable, invalid, or ineffective
in any action, suit, or proceeding, such provision will be automatically reformed and construed so as
to be valid, operative, and enforceable to the maximum extent permitted by law or equity while preserving
its original intent. The determination that any provision of this Agreement is unenforceable, invalid,
or ineffective in any action, suit, or proceeding will not affect the enforceability of the remainder
of this Agreement.
- Failure on the part of any party to this Agreement to insist upon strict compliance with any of
the terms, covenants, or conditions of this Agreement will not be deemed a waiver of such term, covenant,
or condition, nor will any waiver or relinquishment of any right or power under this Agreement at any
one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.
- Customer will not assign this Agreement or any of its respective rights or obligations under this
Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior
written consent of VisualDx. Any proposed assignment in contravention of this Section will be null and
- Customer agrees that in the event there are discrepancies between the terms of this Agreement
and the terms of any Customer purchase order or similar document related to the purchase of the License,
the terms of this Agreement will prevail.
- VisualDx will not be liable to Customer for VisualDx's failure to perform any of its obligations
under this Agreement (other than the payment of any amount due Customer pursuant to this Agreement)
during any period in which its performance is delayed by circumstances beyond its reasonable control
(including, without limitation, acts of God, strikes, walkouts, lockouts, freight embargo, riots, civil
disturbance, acts of war, acts of terrorism, acts of a public enemy, laws, regulations, or other government
proclamations, ordinances, or acts, quarantine, epidemics, unusually severe weather, power failures,
earthquakes, floods, fires, explosions, or other catastrophes) or directly resulting from any failure
of Customer to perform its obligations under this Agreement. If VisualDx claims force majeure, then
it will be excused for non-performance for as long as its performance is so prevented, delayed, or hindered
due to force majeure.
- The headings in this Agreement are inserted as a matter of convenience only and will not be used
to interpret or construe any provision of this Agreement.
- VisualDx and Customer acknowledge that the relationship of VisualDx and Customer is that of
an independent contractor in connection with the subject matter of this Agreement. In no event will
either party to this Agreement be deemed a joint venture party, partner, employee, or agent of the other
party by virtue of this Agreement.
- This Agreement is intended solely for the benefit of the parties to this Agreement and does not
create or grant any right in a person or entity who is not party to this Agreement.
- Whenever the context may require, any pronoun used in this Agreement will include the corresponding
masculine, feminine, or neuter forms and the singular of nouns, pronouns, and verbs will include the
plural and vice versa. This Agreement will not be construed against any party to this Agreement
by reason of the fact that the party may be responsible for the drafting of this Agreement or any provision
hereof. For purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires: (i) references in this Agreement to “Sections”, “paragraphs”,
and other subdivisions without reference to a document are to designate Sections, paragraphs, and other
subdivisions of this Agreement; (ii) the words “herein”, “hereof”, “hereunder”,
and other words of similar import refer to this Agreement as a whole and not to any particular provision;
and (iii) the terms “include” and “including” will mean without limitation by
reason of enumeration.
- This Agreement contains the entire agreement of the parties to this Agreement with respect to
the subject matter hereof and supersedes all prior agreements relating thereto.