Terms and Conditions

Last revised: November 3, 2022.

The following terms and conditions (“Terms of Service”) apply to the Mailzy service (“Mailzy” or “The Service(s)”) delivered by Lauyan Software Sarl. (“Lauyan” or “We”) on its own behalf, to the customer ordering the Services or identified in the Service Order (“Customer” or “you”).

PLEASE CAREFULLY READ THESE TERMS. BY SUBSCRIBING TO OUR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THIS AGREEMENT.

The Services are exclusively reserved for a professional use and are not available to minors under the age of 18.

1. DEFINED TERMS

The following words, when capitalized, have the meaning stated:

“Affiliate” means any entity that is owned or that owns a party, or that is under its common control.

“Agreement” means, collectively, the Service Order, these Terms of Service, and each of the other documents referenced in these Terms of Service.

“Confidential Information” means non-public information disclosed by one party to the other in any form that (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure. “Configuration Requirements” means those specifications as required to perform the Services, such as a required reference architecture, documentation or software version.

“Control Panel” means the customer portal accessible to Customer containing, among other information, the pricing terms applicable to Customer’s use of the Services and users designated to receive support. “Customer Configuration” means any Customer configuration or information technology system needed to enable the Services or to which the Services relate.

“Customer Data” means all data which you receive, store, or transmit on or using the Customer Configuration.

“Deliverables” means the tangible or intangible materials which are prepared for your use in the course of performing the Services and that are specifically identified in a Service Order as Deliverables and described therein.

“Intellectual Property” means patents, copyrights, trademarks, trade secrets, software and source code, specifications and ancillary documentation and any other proprietary intellectual property rights. “Personal Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data), PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person, (ii) trade secrets, (iii) financial records (iv) other sensitive, regulated, or confidential information.

“Representatives” means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, agents. “Services” means the services identified in a specific Service Order. Services which are provided on an on-going basis over a defined term are referred to as “Recurring Service” and Services which are provided on a one-off basis are referred to as “One Time Services”.

“Service Order” means the document which describes the Services you are purchasing, including any online order, process, or tool through which you request or provision Services. “Subsidiaries” means the following entities owned or controlled by Lauyan Software Sarl.

2. SERVICES & SUPPORT

2a – General. Lauyan will provide the Services in accordance with the Agreement and all applicable laws. Lauyan shall have no obligation to provide Services for Customer Configurations which do not meet the Configuration Requirements. Lauyan will provide support only to those individuals designated in the Control Panel and is not required to provide any support directly to your end users.

2b – Delivery & Filtering. Lauyan will use commercially reasonable efforts to deliver your email messages, but cannot guarantee delivery. Third party filtering services and other policies of recipient email services may prevent successful delivery of your messages. Furthermore, You acknowledge that Lauyan does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.

2c – General Disclaimers. Lauyan makes no commitment to provide any services other than the Services stated in the Service Order. Lauyan is not responsible to you or any third party for unauthorized access to your Customer Data or for unauthorized use of the Services that is not solely caused by Lauyan’s failure to meet its security obligations in Section 4 (Security and Data Privacy). Lauyan and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. Lauyan expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Service and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Similarly, Lauyan may, at any time, discontinue providing a platform deemed undesirable and/or obsolete and migrate services to a new infrastructure; in which case, Lauyan will endeavor to inform you as early as possible.

2d – Open Source Software. Lauyan may use certain open source software within our systems (for example Linux, OpenStack, and software licensed under the Apache, GPL, MIT or other open source licenses, collectively “Open Source Software”) and makes no representation or warranty whatsoever regarding any such software or with regard to any third party products or services which may be recommended for your consideration or provided to you in connection with the Services.

3. CUSTOMER OBLIGATIONS

3a – Generally. You may use the Services for commercial and professional purposes only and may not use the Services in any situation where failure or fault of the Services or the Customer Configuration could lead to death or serious bodily injury of any person or physical or environmental damage. You will enable Lauyan’s reasonable method for access to the Customer Configuration for the purpose of performing the Services and invoicing. You must cooperate with Lauyan’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date. You agree that your use of any Customer Configuration provided by Lauyan will comply with the Acceptable Use Policy (the “AUP”) at https://mailzy.cc/legal/sending-policy. You agree that you are solely responsible for the suitability of the Services and your compliance with any applicable laws, including export laws and data privacy laws. You also agree to ensure that your own users comply with this Agreement.

3b – Documentation. You agree to comply with the Lauyan documentation found on the respective website and agree that Lauyan may establish new procedures for your use of the Services as it deems necessary for the optimal performance of the Services. An individual email message may not exceed the per-message size limit (including attachments) of 5MB or it may be permanently lost.

3c – Data Backup. Lauyan shall only back up data to the extent stated on a Service Order. It is your responsibility to ensure the integrity and security of Customer Data and to regularly backup and validate the integrity of backups of Customer Data on an environment separate from the Customer Configuration.

3d – Suspension of Services. Lauyan may suspend the Services without liability if: (i) Lauyan reasonably believes that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on the Services or your Services are accessed or manipulated by a third party without your consent, (iv) Lauyan is required by law or by a regulatory or government body to suspend the Services, or (v) there is another event for which Lauyan reasonably believes that the suspension of the Services is necessary to protect the Lauyan network or our other customers.

4. SECURITY AND DATA PRIVACY

4a – Generally. Lauyan shall provide the Services in accordance with the security and privacy practices set forth at https://mailzy.cc/privacy-policy and any additional security specifications identified in the Service Order or these Terms of Service. You must use reasonable security precautions in connection with your use of the Services, including appropriately securing and encrypting Personal Data stored on or transmitted using the Customer Configuration. Customer Data is, and at all times shall remain, your exclusive property. Lauyan will not use or disclose Customer Data except as materially required to perform the Services or as required by law. Customer agrees not to provide Lauyan with any sensitive personal data or protected health information or other information that can be deemed sensitive personal data or protected health information without obtaining Lauyan’s prior written consent and entering into a separate agreement with Lauyan governing the transmission of such information in connection with Customer’s use and benefit of the Services.

4b – Content Privacy. You acknowledge and understand that the Services may include the transmission of unencrypted email in plain text over the public internet. You are responsible for encrypting any Personal Data you use in conjunction with the Services. Email sent using the Services may be unsecured, may be intercepted by other users of the public internet, and may be stored and disclosed by third parties (such as a recipient’s email service provider). Although Services include support for TLS, content may be transmitted even if the recipient does not also support TLS, resulting in an unencrypted transmission.

5. INTELLECTUAL PROPERTY

5a – Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If you provide Lauyan with your pre-existing Intellectual Property (“Customer IP”), then you hereby grant to Lauyan, during the term of the applicable Service Order, a limited, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. You represent and warrant that you have all rights in the Customer IP necessary to grant this license, and that Lauyan’s use of such Customer IP shall not infringe on the Intellectual Property rights of any third party.

5b – Created by Lauyan. Unless otherwise specifically stated in the applicable Service Order, and excluding any Customer IP, Lauyan shall own all Intellectual Property created as part of providing the Services or contained in the Deliverables. Unless otherwise specifically stated in the Agreement, and subject to your payment in full for the applicable Services, Lauyan grants to you a limited, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use any Deliverables, and during the term of the Service Order any Intellectual Property (excluding any Third Party Software and any Open Source Software), provided to you by Lauyan as part of the Services for your internal use as necessary for you to enjoy the benefit of the Services.

5c – Open Source. In the event Lauyan uses any Open Source Software to you as part of the Services, then such software is subject to the terms of the applicable open source license. To the extent there is a conflict with these Terms of Service, the terms of the applicable open source license shall control.

5d – Third Party Software. Lauyan may provide third party software for your use as part of the Services or to assist in our delivery of the Services (“Third Party Software”). Unless otherwise permitted by the terms of the applicable license you may not (i) assign, grant or transfer any interest in the Third Party Software to another individual or entity, (ii) reverse engineer, decompile, copy or modify the Third Party Software, (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software, or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing this Agreement. You may only use Third Party Software provided for your use as part of the Services (identified on the Service Order) on the Customer Configuration on which it was originally installed, subject to any additional restrictions identified in these Terms of Service or Service Order. You are prohibited from using Third Party Software which Lauyan installs in order to assist our delivery of the Services. Upon termination of the Service Order, you will permit removal of the Third Party Software. Lauyan makes no representation or warranty regarding Third Party Software except that Lauyan has the right to use or provide the Third Party Software and that Lauyan is in material compliance with the applicable license.

5e – Infringement. If the delivery of the Services infringes the intellectual property rights of a third party and Lauyan determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverable such that they do not infringe, then Lauyan may terminate the Service Order on ninety days’ notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of Deliverables deemed infringing).

6. FEES

6a – Pay as You Go Credits. You have to buy email credits to use the Service (“Pay as You Go Credits”), as explained on our Mailzy Site. Each email send costs one credit. For example, one newsletter sent to 100 recipients equals 100 sends, so it would cost 100 credits. You can send newsletters with Mailzy as long as you have enough credits. For example with 1000 credits you can send one newsletter to 1000 recipients or twenty newsletters to 50 recipients. You will have an opportunity to review current rates for Pay as You Go Credits in your account prior to purchase. If you choose to buy Pay as You Go Credits, you’ll have access to the features of the Service, as described on the pricing page. Pay as You Go Credits purchased expire 12 months after your last purchase or are reported otherwise. Pay as You Go Credits have no cash value, cannot be refunded or redeemed for cash, and represent a limited license to use the Service for the specified volume and type of service.

6b – Fee Increases. Lauyan may revise the pricing terms that apply to your use of the Services at any time.

6c – Taxes. All amounts due to Lauyan under the Agreement are exclusive of any value added, goods and services, sales, use, and like taxes, (collectively, “Tax”). You must pay Lauyan the Tax that is due. You must provide Lauyan with accurate and adequate documentation sufficient to permit Lauyan to determine if any Tax is due. All payments to Lauyan shall be made without any withholding or deduction for any taxes except for withholding (or similar) taxes imposed on income that may be attributable to Lauyan in connection with its provision of the Services that you are legally required to withhold and remit to the applicable governmental or taxing authority (“Local Withholding Taxes”). You agree to timely provide Lauyan with accurate factual information and documentation of your payment of any such Local Withholding Taxes.

6d – Right of Retraction. In accordance with the provisions of Article L. 121-20-2 of the french Consumer Code, the right of retractation does not apply in the event of the sale of an intangible service whose usage began with the consent of the Customer before the end of the refund period. The Customer acknowledges and agrees that the right of retractation within 14 days upon delivery of goods / services provided by Lauyan can not be exercised by him/her in accordance with the provisions of Articles L. 121-20-2 of the French Consumer Code. Buying “Pay as You Go Credits” is firm and final and shall not give rise to any refund or exchange.

7. TERM AND TERMINATION

7a – Term. The Agreement shall continue until terminated in accordance with its terms or the termination of the final Service Order, whichever is the later. Unless otherwise stated in the applicable Service Order, each Service Order has an initial 30-day term and shall automatically renew on initial term expiry on a rolling thirty day basis unless either party provides the other with written notice of non-renewal at least thirty days prior to the expiration of the then current term. Unless otherwise stated in the Agreement, o automatic renewal will be applicable for any SMS messaging packages which are due and payable in advance for the desired volumes and all SMS messaging packages shall expire if not used after a period of twelve months.

7b – Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, either party may terminate all or part of any Service Order for convenience at any time by giving the other party at least ninety (90) days advance written notice; provided, however, that in the event of termination for convenience by Customer, Customer agrees to pay an early termination fee equal to the monthly recurring fee times the number of months remaining in the then current term of the Service Order for the Services that have been terminated.

7c – Termination for Cause. Either party may terminate the Agreement or the affected Service Order(s) for cause on written notice if the other party materially breaches the Agreement and, where the breach is remediable, does not remedy the breach within forty-five (45) days of the non-breaching party’s written notice describing the breach.

7c.1 – If following suspension of your Services for non-payment, your payment of any invoiced undisputed amount remains overdue for a further ten (10) days, Lauyan may terminate the Agreement or the applicable Service Order(s) for breach on written notice.

7c.2 – Either party may terminate the Agreement and the Service Order(s) on written notice if the other enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts. Notwithstanding anything to the contrary in the Agreement, the fees for the Services shall become due immediately on such an occurrence.

8. CONFIDENTIAL INFORMATION

8a – Generally. Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.

8b – Routing Data. Your email messages and other items sent or received via the mail service will include information that is created by the systems and networks that are used to create and transmit the message including information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information (“message routing data”). You agree that Lauyan may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that Lauyan may disclose message routing data to third parties in aggregate statistical form, provided that Lauyan does not include any information that could be used to identify you.

8c – Usage Data. Lauyan collects and stores information related to your use of the Services, such as use of the Website, API, SMTP and filtering choices and usage. You agree that Lauyan may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that Lauyan does not include any information that could be used to identify you.

9. LIMITATIONS ON DAMAGES

9a – Direct Damages. Notwithstanding anything in the Agreement to the contrary, except for liability arising from death or personal injury caused by negligence, willful misconduct, fraudulent misrepresentation or any other loss or damages for which such limitation is expressly prohibited by applicable law, the maximum aggregate monetary liability of Lauyan and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the total amount paid for the Services that are the subject of the claim in the twelve months immediately preceding the event(s) that gave rise to the claim.

9b – Indirect Damages. Neither party (nor any of our Affiliates or Representatives) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. Neither of us is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill or reputation.

10. INDEMNIFICATION

10a – If Lauyan, its Affiliates, or any of its or their Representatives (the “Indemnitees”) is faced with a legal claim by a third party arising out of your actual or alleged: willful misconduct, breach of applicable law, failure to meet the security obligations required by the Agreement, breach of your agreement with your customers or end users, violation of the AUP, or your breach of Section 5 (Intellectual Property) then you will pay the cost of defending the claim (including reasonable legal fees) and any damages award, fine or other penalty that is imposed on the Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Customer Configuration, and any person who gains access to the Customer Configuration as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you.

10b – Lauyan will choose legal counsel to defend the claim, provided that the choice is reasonable and is communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. Lauyan may not settle the claim without your consent, which may not be unreasonably withheld, delayed or conditioned. You must pay costs and expenses due under this Section as Lauyan incurs them.

10c – Lauyan agrees to indemnify the Customer for any damages resulting from any claim initiated by a third party and asserted against the Customer on the grounds that the Service, when used in accordance with the provisions of the Agreement, infringes any Intellectual Property right, provided that the Customer: (a) promptly notifies Lauyan, in writing, and no later than within ten (10) days following receipt of any claim; (b) allows Lauyan to control and direct the investigation, preparation, and defense; and (c) fully collaborates in defense and resolution of the claim. Lauyan is not responsible for any settlement that it does not approve in writing in advance.

In the event a notice of an Intellectual Property infringement claim is received from a third party, Lauyan may, in its sole discretion, (a) procure for Customer the right to continue to use the Service, or (b) replace or modify the Service to make it non-infringing. If Lauyan determines that it is not commercially reasonable to perform either of these alternatives, Customer shall cease to access and use the Service upon written request and a refund of the non used pro-rata.

Lauyan will have no liability under this indemnification paragraph with respect to any Intellectual Property infringement claim (a) arising out of Customer’s use of the Services in breach of these Terms of Service; (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) arising from Services for which there is no charge or a trial, evaluation or beta version of the Services.

This states Lauyan's entire liability and Customer's sole and exclusive remedy for Intellectual Property infringement or allegations thereof by a third party.

11. NOTICES

Your routine communications to Lauyan regarding the Services should be sent to your account team using the Control Panel. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, you must send it by electronic mail and first-class post to:

Lauyan Software Sarl, 16 rue du Général de Gaulle, 78120 Rambouillet - France.

Lauyan’s routine communications regarding the Services and legal notices will be posted on the Control Panel or sent by email or post to the individual(s) you designate as your contact(s) on your account. Notices are deemed received as of the time posted or delivered, or if that time does not fall on a business day, as of the beginning of the first business day following the time posted or delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day.

12. PUBLICITY, USE OF MARKS

Unless otherwise agreed in the Service Order, you agree that Lauyan may publicly disclose that it is providing Services to you and may use your name and logo to identify you in promotional materials, including press releases. You may not issue any press release or publicity regarding the Agreement, use the Lauyan name or logo or other identifying indicia, or publicly disclose that it is using the Services without Lauyan’s prior written consent.

13. ASSIGNMENT/SUBCONTRACTORS

Neither party may assign the Agreement or any Service Orders without the prior written consent of the other party except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. Lauyan may use its Affiliates or subcontractors to perform all or any part of the Services, but Lauyan remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Lauyan performed the Services itself. You acknowledge and agree that Lauyan Affiliates and subcontractors may be based outside of the geographic jurisdiction in which you have chosen to store Customer Data and if legally required the parties will enter into good faith negotiations of such agreements as are necessary in order to legitimize the transfer of Customer Data.

14. FORCE MAJEURE

Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an extraordinary event beyond its control, such as significant failure of a part of the power grid, Internet failure, natural disaster, war, riot, epidemic, strikes or labor action, terrorism (“Force Majeure”).

If a Force Majeure event occurs, this Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither Party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing Party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. Notwithstanding the foregoing, in no event shall a Force Majeure event excuse or delay a Party’s obligation(s) with respect to payments, confidentiality or Intellectual Property Rights.

15. GOVERNING LAW

15a – This Agreement will be governed by and construed in accordance with the laws of France, without reference to its conflicts of law principles, and all disputes will be subject to the exclusive jurisdiction of the courts located in Paris, France.

15b – Notwithstanding the exclusive jurisdiction provision above, you agree that Lauyan may seek to enforce any judgment anywhere in the world where you may have assets. No claim may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that Lauyan will not bring a claim under the Agreement more than two years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.

15c – The prevailing party in any action or proceeding relating to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.

16. MISCELLANEOUS

16a – Some terms are incorporated into the Agreement by reference to pages on the Lauyan website and Lauyan may revise those terms from time to time (including these Terms of Service). Such revisions will be effective and supersede and form part of the Agreement as of the time (i) you enter into a new Service Order referencing the terms subject to the revisions or (ii) a Service Order automatically renews pursuant to the Agreement in which case you acknowledge that you have reviewed and accept the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents will govern in the following order: the Service Order, then these Terms of Service. The headings or captions in the Agreement are for convenience only. If over time you enter into multiple Agreements for a given Customer Configuration (for example to add additional components or services) then the most recent terms referenced in the Service Order(s) will govern the entirety of the Services for the given Customer Configuration.

16b – Unless otherwise expressly permitted in the Agreement the terms of the Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement. A Service Order may be amended to modify, add, or remove services by a formal written agreement signed by both parties, or by an exchange of correspondence (including via the Lauyan ticketing system) that includes the express consent of an authorized individual for each of us. The pre-printed terms of your purchase order or other business form or terms that you provide shall be void and of no effect.

16c – If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party.

16d – The following provisions in these Terms of Service shall survive expiration or termination of the Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation on Damages, Governing Law, Notices, Miscellaneous, all terms of the Agreement requiring you to pay any fees for Services provided prior to the time of expiration or termination, or requiring you to pay an early termination fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.

16e – The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.