READ THIS AGREEMENT CAREFULLY BEFORE USING ANY IMAGE WITNESS SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN IMAGE WITNESS AND YOU, INCLUDING ANY IMAGE WITNESS CUSTOMER, USER, OR WEBSITE VISITOR, (collectively referred to herein as “Customer”).
These Terms of Service form part of an agreement (this/the “Agreement“) between Image To You Pty Limited Trading as Image Witness, (“Image Witness“) and Customer. This Agreement governs provision of Image Witness’s services (the “Service“) and is effective as of the moment Customer indicates agreement at the Image Witness website, as of the moment the two parties sign a paper version, or as of the moment Customer uses any Image Witness website or element of the Service (whichever comes first).
(a) Image Witness will provide the Service pursuant to this Agreement. Customer agrees that the Service is for business use and not for consumers, and Customer hereby affirms: (i) that it will use the Service for business purposes and not for personal, family, or household purposes; and (ii) that it is not an individual less than 18 years old.
(b) The Service will include such optional features (“Optional Features“) as are reflected in any Image Witness quote accepted by Customer and any other ordering records maintained by Image Witness (collectively, Customer’s “Signup“). Optional Features may include: (i) consulting or other professional services provided by Image Witness’s staff (including without limitation independent contractors operating under the Image Witness name); and (ii) software and other products and services Customer acquires from Image Witness. Optional Features are subject to the same terms and conditions as other elements of the Service, including without limitation the disclaimers and limitations of liability in Section 9 below, except as specifically set forth in this Agreement. Optional Features are also subject to the terms and conditions of any statement of work executed by authorized representatives of Customer and Image Witness.
(c) The Service does not include any software, consulting service, or other product or service not provided by Image Witness (collectively, “Third Party Products and Services“).
(i) Third Party Products and Services include, without limitation: (A) any third party consulting services that assist Customer in utilizing the Service or otherwise relate to the Service, including such services provided by third parties Image Witness referred to Customer; and (B) any and all software and other products and services Customer acquires through Image Witness Exchange, unless such product or service is specifically designated “Provided Directly by Image Witness.”
(ii) THIRD PARTY PRODUCTS AND SERVICES ARE NOT PART OF THE SERVICE, AND CUSTOMER ACQUIRES THEM DIRECTLY FROM THE THIRD PARTY PROVIDER pursuant to such contract as Customer and the third party provider may execute. IMAGE WITNESS IS NOT RESPONSIBLE OR LIABLE FOR THIRD PARTY PRODUCTS AND SERVICES, EVEN IF IMAGE WITNESS RECOMMENDS THE THIRD PARTY PROVIDER, EVEN IF THE THIRD PARTY PRODUCTS AND SERVICES ARE RELATED TO THE SERVICE OR TO CUSTOMER’S ABILITY TO RECEIVE OR EXPLOIT THE SERVICE, AND EVEN IF IMAGE WITNESS ACTS AS THE THIRD PARTY PROVIDER’S AGENT IN DELIVERING THE THIRD PARTY PRODUCT OR SERVICE, IN COLLECTING PAYMENT, OR IN OTHER WAYS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IMAGE WITNESS WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR MAINTENANCE, UPDATES, OR UPGRADES OF THIRD PARTY PRODUCTS AND SERVICES OR FOR INTELLECTUAL PROPERTY INFRINGEMENT BY THIRD PARTY PRODUCTS AND SERVICES, AND IMAGE WITNESS PROVIDES NO WARRANTY OR INDEMNITY RELATED TO THIRD PARTY PRODUCTS AND SERVICES. In the event that Image Witness is held responsible or liable for Third Party Products and Services, despite the provisions of this Subsection 1(c)(ii), such responsibility or liability will be subject to the disclaimers and limitations of liability in Section 9 below.
Image Witness hereby grants you a limited, revocable, non-exclusive, non-transferrable (except as provided below) license to use the Image Witness Services solely for your personal or business use during the term of this Agreement. If you are a Registered User, your use of the Image Witness Services is limited to your Subscription Level ordered. If you are a Visitor, your use is limited to areas of the Site not requiring registration. You acknowledge that Image Witness reserves all rights relating to Image Witness Services not expressly granted to you herein.
You will not nor permit anyone else to:
a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Image Witness Services;
b) copy, reproduce, modify, translate, or create derivative works based on the Image Witness Services, including but not limited to framing or mirroring Image Witness Content on another server, site or device;
c) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to Image Witness Services;
d) use Image Witness Services for timesharing or service bureau purposes or otherwise for the benefit of a third party;
e) use Image Witness Services for the benefit of a competitive offering to any of the Image Witness Services or to intentionally harm or discredit Image Witness or the Image Witness Services;
f) access or attempt to gain unauthorized access to Image Witness Services, or to access the Image Witness Services by any means other than standard interface that Image Witness has provided to you;
g) use or launch any automated system, including without limitation, robots, spiders, or offline readers, to access Image Witness Services;
h) use Image Witness Services in any manner that or participate in or promote activities that could damage, disable, overburden, or impair Image Witness Services or interfere with any other party’s use and enjoyment of the Image Witness Services;
i) remove any proprietary notices from Image Witness Services;
j) violate the Acceptable Use Policy.
(a) Customer will pay for the Service pursuant to one of the following payment plans, as listed in Customer's Signup:
(i) Customer pays monthly, or on such other prepayment period as is listed in Customer's Signup, for a package of Service listed in Customer's Signup (Customer's "Service Package"). Payment is due before the start of each prepayment period, including renewed prepayment periods. Customer may increase ("Upgrade") its Service Package through the contacting Image Witness customer support via customer portal at http://www.imagewitness.com/contactus.php (the "Customer Portal"). Additional charges will go into effect upon Upgrade, and Image Witness may charge a prorated increase in Service fees for the payment period during which the Upgrade occurs, on a daily basis (or at such times as it chooses). Each Prepaid Plan will renew automatically at the end of its prepayment period. If the prepayment period is one month or less, Customer may cancel the Prepayment Plan on 30 days' advanced written notice. If the prepayment period exceeds one month, Customer may cancel the Prepaid Plan at any time during the first 30 days of a renewed prepayment period, and if Image Witness has already charged Customer for such period, it will refund the fees, prorated to deduct for the time between start of the prepayment period and cancellation. Customer will provide notice of cancellation through the Customer Portal or otherwise in writing to firstname.lastname@example.org.
Fees for Optional Services are in addition to fees for Prepaid Plans. Image Witness may bill Customer separately, on a monthly or other periodic basis, for Optional Features, pursuant to Image Witness's standard policies.
(b) Customer will pay Image Witness's standard fees for the Service, including for Optional Features, as such fees may be revised from time to time. However, if Customer and Image Witness agree to alternate fees in Customer's Signup, or in a Statement of Work for consulting-related Optional Features, such alternate fees will apply until the end-date specifically listed in the Signup or Statement of Work, or if no end-date is listed, for 1 year. Thereafter, alternate fees will revert to Image Witness's then-standard fees. Customer will pay any set-up or other fees required pursuant to Image Witness's standard policies. Image Witness is not required to issue refunds or credits except as specified in this Agreement. Without limiting the generality of the foregoing:
(i) fees for Prepaid Plans are non-refundable, except as specifically set forth in Subsection 3(a)(i) above; and
(ii) no credit will entitle Customer to a refund.
(c) Customer will notify Image Witness of any billing dispute, providing details regarding the nature of the dispute and the amount, within 15 days of the date on the invoice in question, or waive such dispute. Any payment not received when due will, at Image Witness's option, bear interest at a rate of 1.5% per month from the date due until paid, to compensate Image Witness for the time-value of the unpaid fees. In addition, Image Witness may charge a late fee of $19.99 per week, as liquidated damages, starting on the first day after any payment is due. Such liquidated damages compensate Image Witness for administrative expenses related to unpaid fees.
(d) Service fees for Prepaid Plans apply regardless of the cause of the Service usage or overage, even if caused by hacker activity or other third party actions. Image Witness is not required to issue or provide a roll-over of Service (memory or data) to a future month, a credit, or any other refund in the event that Customer under-utilizes its Service Package.
(e) Customer will maintain a valid credit card on file at all times. Image Witness may charge such card for Service fees or other fees on the first business day prior to any payment due-date. Customer will update credit card information as necessary in the Customer Portal. If any charge attempt is denied, Image Witness may interrupt Service without advanced notice but will make reasonable efforts to provide such notice.
(a) This Agreement will continue until terminated by either party pursuant to the procedures set forth in this Section 4.
(b) Customer may terminate this Agreement for material breach, effective on 30 days’ written notice specifying the nature of the breach, provided this Agreement will not terminate if Image Witness cures the breach before the effective date of termination. Customer may also terminate this Agreement for convenience.
(c) Image Witness may terminate the Service, any portion thereof, or this Agreement for material breach, including without limitation any breach of the provisions of the AUP or of the payment obligations set forth in Section 3, without advanced notice. Image Witness is not required to refund any fees paid or prepaid after such termination. Image Witness may also terminate this Agreement for convenience at any time. Image Witness will provide 30 days’ advanced written notice of any termination for convenience.
(a) Customer represents that it has read the AUP, and Customer will adhere to its requirements.
(i) Without limiting the generality of the foregoing, Customer will not allow the Service or Image Witness equipment to be used for activities prohibited by the AUP. Third party violations of the AUP using Customer’s Service, including any IP addresses, points of access to the Internet, systems, software, or equipment assigned to Customer, will be considered violations by Customer.
(ii) Notwithstanding any provision to the contrary in this Agreement, and without limiting any of Image Witness’s rights or remedies, Image Witness may suspend Service in whole or in part in the event that Image Witness reasonably suspects an AUP violation. Reasonable suspicion pursuant to the preceding sentence includes, without limitation, a third party notice or claim that Customer’s use of the Service infringes on third party rights. Image Witness will make reasonable efforts to notify Customer before any such suspension, unless the AUP violation calls for immediate action to prevent injury or liability, in Image Witness’s opinion and at its sole discretion. Suspension pursuant to this Subsection 5(a)(ii) may continue so long as Image Witness reasonably suspects an AUP violation. Image Witness is not liable for any Service suspension authorized by this Subsection 5(a)(ii), or for any related loss, even if the suspected AUP violation did not occur.
(b) Image Witness has no obligation to monitor the Service for AUP violations or for other illegal or improper conduct but may do so and may disclose information regarding use of the Service for any reason, including: to satisfy laws, regulations, or governmental, legal, or law-enforcement requests; to operate the Service properly; and to protect itself and its customers. Image Witness may grant law enforcement agencies access to its equipment, including equipment used to provide the Service to Customer.
(a) Image Witness will not be liable for Service interruptions or any other Service failures except as specifically set forth in the SLA and in this Section 6. In the event of hardware failure: (i) Image Witness will make reasonable efforts to recover lost data, upon Customer’s request, but data-recovery is not guaranteed; and (ii) Image Witness will provide such credits as are required by the SLA (if any). In the event that Customer is dissatisfied with the Service, Customer’s sole remedies are those listed in the SLA and in this Section 6, or termination of this Agreement as authorized pursuant to Section 4 above. Remedies listed in the SLA do not apply to any Service interruption authorized pursuant to Section 7 or any other provision of this Agreement, and Image Witness will not be liable for any such interruption.
(b) All Service features, whether or not addressed in the SLA, are provided pursuant to the provisions of Section 9 below and the other terms and conditions of this Agreement.
(a) Image Witness may interrupt Service to perform maintenance on Image Witness equipment or to address and/or mitigate the effects of security breaches, virus attacks, denial of service attacks, and other intentional interferences by third parties. Image Witness will exercise reasonable efforts to inform Customer before interrupting Service and to repair the Service promptly.
(b) Customer is responsible for maintaining security and for maintaining patches and disaster recovery systems, except to the extent Image Witness specifically accepts such responsibility by listing such service features in Customer’s Signup (subject to the limitations of liability in Section 9 and elsewhere in this Agreement). Image Witness is not responsible for providing physical access to or copies of software, data, or content stored on Image Witness’s equipment under any circumstances and is not required to provide network access (i) after any termination or suspension of Customer’s Service or (ii) in the event of hardware failure, abuse by hackers or other third parties, improper administration by Customer, or other interruption of network access.
(c) Image Witness is not required to reimburse any expenses Customer incurs for technology diagnosis or repair, including without limitation expenses for outside consultants.
(b) Customer will employ reasonable security precautions in its use of the Service, including without limitation encryption of social security numbers, medical records, and information of similar sensitivity belonging to Customer or to its customers or users.
(c) Customer will not use Confidential Information (as defined below) for any purpose other than to facilitate the Service. Except as specifically authorized in writing in advance by Image Witness, Customer will not disclose Confidential Information to any third party, and will prevent any such disclosure of Confidential Information in Customer’s possession or control. Without limiting the generality of the foregoing, Customer will take reasonable precautions to protect Confidential Information and will not disclose Confidential Information to any of its employees or contractors who do not need to know. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; provided Customer gives Image Witness advanced notice reasonably sufficient to allow Image Witness to seek a protective order or otherwise to contest such required disclosure, and reasonably cooperates in such effort. Customer will promptly notify Image Witness in writing of any misuse or misappropriation of Confidential Information that comes to Customer’s attention and will cooperate with Image Witness in investigating any such misappropriation and in mitigating any damages caused. Upon termination of this Agreement or upon Image Witness’s written request, Customer will return all Confidential Information to Image Witness and certify, in writing, the destruction of any copies thereof.
(i) “Confidential Information” refers to any information Image Witness provides to Customer in any form and marks “Confidential,” and any information Image Witness discloses orally and identifies as “Confidential” on or before disclosure. However, Confidential Information does not include information that: (A) is in Customer’s possession at the time of original disclosure by Image Witness; (B) is independently developed by Customer without use of or reference to information provided by Image Witness; or (C) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction.
(ii) Customer agrees that breach of the provisions of this Subsection 8(c) might cause Image Witness irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, Image Witness will be entitled to preliminary, temporary, and/or permanent injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
(a) IMAGE WITNESS MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Image Witness does not warrant that the Service will be uninterrupted, error-free, or free from viruses or other harmful components. The Service is provided with no warranties regarding security, reliability, protection from attacks, data integrity, or data availability (including without limitation data integrity or availability related to cloud storage features of the Service). Except to the extent specifically provided in the SLA, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. No communication between Customer and Image Witness will create a warranty or in any way alter or restrict any disclaimer of warranty or limitation of liability set forth in this Section 9 or elsewhere in this Agreement. As used in the previous sentence, “communications” include, without limitation, marketing materials and representations of salespeople, advice provided by Image Witness or any of its representatives, quotes, Customer’s Signup, and any work order or other ordering document.
(b) IMAGE WITNESS WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR MULTIPLE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IMAGE WITNESS’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE INJURY GIVING RISE TO THE CLAIM.
(c) Except to the extent specifically provided in Section 6 above, and except to the extent that applicable law specifically forbids such limitation of liability, IMAGE WITNESS WILL HAVE NO LIABILITY WHATSOEVER FOR ANY CLAIMS, LOSSES, ACTIONS, DAMAGES, SUITS, OR PROCEEDINGS RESULTING FROM ANY OF THE FOLLOWING OR FROM ANY IMAGE WITNESS EFFORTS TO ADDRESS OR MITIGATE ANY OF THE FOLLOWING: (i) SECURITY BREACHES, INCLUDING WITHOUT LIMITATION EAVESDROPPING, THIRD PARTY ACCESS TO CUSTOMER DATA OR TO ASSIGNED COMPUTERS, THIRD PARTY ACCESS TO OR MISUSE OF PASSWORDS PROVIDED TO IMAGE WITNESS, AND INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (ii) RELEASE OR EXPOSURE, FOR ANY OTHER REASON, OF PERSONALLY IDENTIFIABLE INFORMATION OR OTHER PRIVATE DATA, INCLUDING DATA BELONGING TO CUSTOMER’S OWN CUSTOMERS AND OTHER USERS; (iii) DENIAL OF SERVICE ATTACKS, VIRUSES, WORMS, AND OTHER INTENTIONAL INTERFERENCE BY THIRD PARTIES, INCLUDING WITHOUT LIMITATION BY OTHER IMAGE WITNESS CUSTOMERS; (iv) LOSS OF DATA OR LOSS OF ACCESS TO DATA; (v) ACTIONS OF THIRD PARTIES, INCLUDING WITHOUT LIMITATION OTHER IMAGE WITNESS CUSTOMERS AND THIRD PARTY PRODUCTS AND SERVICES PROVIDERS; (vi) ACTIONS OF IMAGE WITNESS EMPLOYEES, AGENTS, OR CONTRACTORS ACTING OUTSIDE THE SCOPE OF THEIR DUTIES; (vii) MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR OTHER FAILURES OF PERFORMANCE OF THE SERVICE, INCLUDING WITHOUT LIMITATION ACCIDENTAL DISCONNECTION AND TERMINATION OF SERVICE; AND (viii) THE ACCURACY, COMPLETENESS, AND USEFULNESS OF THE SERVICE. THE PROVISIONS OF THIS SUBSECTION 9(c) APPLY, WITHOUT LIMITATION, EVEN IF CUSTOMER PURCHASES SERVICE FEATURES ADDRESSING SECURITY, DATA INTEGRITY, DATA BACKUP, ATTACK PROTECTION, VIRUSES, SPAM, MONITORING, OR SYSTEM INTEGRITY. Image Witness does not control and has not thoroughly reviewed all the websites linked to Image Witness’s website or run by Image Witness’s customers or by providers of Third Party Products and Services. With the exception of its own website, Image Witness is not responsible or liable for the content or practices of any website, including without limitation third party websites referenced in the preceding sentence.
(d) THE LIABILITIES LIMITED BY THIS SECTION 9 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF IMAGE WITNESS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Image Witness’s limitations and exclusions of liability and disclaimers of warranty, set forth in this Section 9 and elsewhere in this Agreement apply equally to Image Witness’s officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies. Customer acknowledges and agrees that Image Witness has set its prices and entered into this Agreement in reliance upon such limitations of liability, and that such limitations of liability form an essential basis of the bargain between Image Witness and Customer.
Customer will defend, indemnify, and hold harmless Image Witness (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from a claim by any of Customer’s customers or users, or any other third party, arising out of or related to Customer’s use of, misuse of, or failure to use the Service, including without limitation: (a) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other AUP violations; (b) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to Customer, to one of Customer’s customers, or to other third parties); and (c) any action taken by Image Witness as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred. Such Customer obligation includes payment of losses, expenses, damages, judgments, settlements, and costs, including without limitation attorneys’ fees.
(a) Title and intellectual property rights to the Service and all components thereof are owned by Image Witness and its licensors and suppliers. All hardware and Internet protocol addresses provided by Image Witness are licensed to Customer temporarily and remain Image Witness’s sole and exclusive property. This Agreement does not grant Customer a license to any software used to provide the Service or associated with the Service (collectively, “Software“), or to any other software, by implication, by estoppel, or otherwise. Without limiting the generality of the foregoing, Customer will not reproduce, reverse engineer, decompile, or disassemble the Software. The logos, service marks, and trademarks (collectively, “Trademarks“) displayed on Image Witness’s website and through the Service, whether or not registered, belong to Image Witness and its licensors and suppliers. Neither this Agreement nor any Image Witness website grants a license to any Trademark, by implication, by estoppel, or otherwise. Nothing in this Agreement transfers to Image Witness any copyright in, trademark on, or other ownership interest in any data or content of Customer. However, Image Witness may include Customer’s name in any list of customers used for marketing or other purposes.
(b) Customer is responsible for maintaining the confidentiality of its usernames and passwords, and Customer will not transfer or sell to any third party such usernames or passwords, or Customer’s access to the Service.
(c) Image Witness is not obligated to sell Customer any Service feature not listed in Customer’s Signup, or to provide more Service than required by such Signup.
(d) During the term of this Agreement and for 180 days thereafter, Customer will not encourage or solicit any Image Witness employee or independent contractor to leave Image Witness’s employ, or otherwise interfere with Image Witness’s employment relationships.
(e) The parties agree that the fees listed as liquidated damages in Subsection 3(c) and elsewhere in this Agreement do not constitute penalties and are reasonable in light of the harm that will be caused by breach, the difficulties of proof of loss, and the inconvenience and infeasibility of otherwise obtaining an adequate remedy. No remedy of Image Witness provided in this Agreement for late payment, declined credit card charges, or other breaches will limit any other right or remedy of Image Witness at law or in equity.
(f) All written communications to Customer will be deemed delivered if sent to the contact points provided to Image Witness at the time of order, or to such other contact points as Customer provides in writing. Customer will include a valid e-mail address with such contact points. All written communications to Image Witness will be mailed to the Image Witness’s then current address as published at Image Witness.com, unless Image Witness notifies Customer in writing of alternate contact information, except to the extent that this Agreement provides that such communication will be made through a Image Witness Customer Portal.
(h) This Agreement is to be construed in accordance with and governed by the internal laws of the State of New South Wales without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction other than the laws of the State of NSW to the rights and duties of the parties.
(i) No delay, failure, or waiver of either party’s exercise or partial exercise of any right or remedy under this Agreement will operate to limit, impair, preclude, cancel, waive, or otherwise affect such right or remedy. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
(k) In the event of any conflict between these Terms of Service and any other element of this Agreement, or any ordering document or statement of work, these Terms of Service will govern.
(l) Customer may not assign this Agreement or any of its rights or obligations hereunder without Image Witness’s express written consent. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(m) If any provision of this Agreement is held invalid, illegal, or unenforceable, including without limitation as a result of unconscionability or inconsistency with public policy, such provision will be construed so as to come as close as possible to its intended meaning, and the validity, legality, or enforceability of the remaining provisions will in no way be impaired.
(n) This Agreement, including those documents incorporated by reference, embodies the final, full, and exclusive statement of the agreement between the parties, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral, relating to its subject-matter.