Effective as of January 2024.
BY ACCESSING OR USING THE REKA.AI WEBSITE, OR ANY OTHER WEBSITE WITH AN AUTHORIZED LINK TO THIS AGREEMENT (“WEBSITE”), REGISTERING FOR AN ACCOUNT WITH REKA, OR ACCESSING OR USING ANY OF THE SERVICES, PRODUCTS, APPLICATIONS, CONTENT, DATA, INFORMATION, FEATURES, OR RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (COLLECTIVELY, THE “SERVICES”), OR CLICKING ON A BUTTON OR TAKING ANOTHER ACTION TO SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST EIGHTEEN (18) YEARS OLD, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF THE LEGAL ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR AN ACCOUNT WITH REKA. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE ANY OF THE SERVICES.
SECTION 14 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND REKA WILL BE RESOLVED, INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE PRIOR TO THE “LAST UPDATED DATE” AT THE TOP OF THIS AGREEMENT. AMONG OTHER THINGS, SECTION 14 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND REKA BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 14) WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU ENTERED INTO THIS AGREEMENT IN ACCORDANCE WITH SECTION 14.10 (30-DAY RIGHT TO OPT OUT): (1) YOU AND REKA WILL BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST THE OTHER PARTY ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND EACH OF US WAIVES OUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU AND REKA ARE WAIVING OUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
PLEASE NOTE THIS AGREEMENT IS SUBJECT TO CHANGE BY REKA IN ITS SOLE DISCRETION AT ANY TIME IN ACCORDANCE WITH SECTION 15.6 BELOW. PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT AGREEMENT.
1.1. Overview of the Services.
The Services provide users with a multimodal artificial intelligence (“AI”) model that understands text, images, videos and audio, executing actions via code. Reka’s model excels in processing long contextual documents, facilitating fast retrieval, augmented generation, and supports up to thirty-one (31) languages.
1.2. Reka Tools.
Subject to this Agreement, Reka makes available to you certain AI tools in connection with your use of the Services (collectively, the “Reka Tools”). Except where expressly specified otherwise in this Agreement, the Reka Tools constitute a “Service” for the purposes of the Agreement and the Agreement shall apply in full to Customer’s use of the Reka Tools. The Reka Tools leverage certain large language models and AI algorithms to generate ideas and answer basic questions (collectively, the “Output”) in response to your prompts (“Prompts”). You acknowledge that the Outputs are based on your Prompts, and that Reka has no control over any such Prompts. Accordingly, all Outputs are provided “as is” and with “all faults”, and Reka makes no representations or warranties of any kind or nature with respect to any Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. You are solely responsible for your use of your Outputs created through the Services, and you assume all risks associated with your use of your Outputs, including any potential copyright infringement claims from third parties or any disclosure of your Outputs that personally identifies you or any third party.
1.3. Supplemental Terms.
You understand that the Services are evolving. As a result, Reka may require you to install updates to the Applications that you have installed on the devices through which you access or use the Services (“Device”). You acknowledge and agree that Reka may update the Services with or without notifying you. You may need to update third-party software from time to time in order to continue to use the Services. Any future release, update or other addition to the Services shall be subject to this Agreement.
1.5. Reka Communications.
2.1. Registering Your Account.
In order to access certain features of the Services, you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Services (“Account”).
2.2. Registration Data.
In registering an Account, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form, including with respect to your medical history (if you elect to voluntarily respond to such questions) (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You are responsible for all activities that occur under your Account. You agree to monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Reka has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Reka has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. Reka reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Reka, or if you have been previously banned from any of the Services.
2.3. Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
3.1. User Responsibility for Content.
You acknowledge that all content on the Services is the sole responsibility of the party from whom such content originated. This means that you, and not Reka, are entirely responsible for all content that you upload, post, message, text, transmit or otherwise make available (“Make Available”) through the Services, including all Prompts that you submit to our Chatbot (collectively, “Your Content”), and that other users of the Services, and not Reka, are similarly responsible for all content that they Make Available through the Services (together with Your Content, “User Content”).
3.2. Responsible Use of Reka Tools.
You shall comply with all obligations and commitments in the Agreement with respect to Your Content in connection with your use of the Reka Tools. You are solely responsible for the Prompts, your Outputs and your use thereof. Without limiting the disclaimers in Section 9 below, you are responsible for reviewing any Output prior to your use and exercising your own judgement as to its suitability for use. Without limiting the foregoing and your representations and warranties under the Agreement, you shall not use any Prompts or Output that: (a) infringe or misappropriates any third party’s intellectual property rights or other proprietary rights; (b) are deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic or illegal; (c) contain any viruses, worms or other malicious computer programming codes that may damage the Application; or (d) contain any personal information, such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers. Reka reserves the right to suspend or terminate your access to the Reka Tools and/or Services for any failure by you to comply with this Section. In addition to the foregoing, your obligations under the Agreement with respect to use of the Services, your representations and warranties and indemnification obligations, shall apply in full with respect to your use of the Reka Tools. You acknowledge and agree that, notwithstanding the automated suggestions provided by the Reka Tools, you remain solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.
3.3. No Obligation to Pre-Screen Content.
Reka may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services and/or content available thereon, including Your Content and User Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or other communications.
Without limiting the foregoing, Reka reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Reka; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Services or if Reka otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. Upon determination of any possible violations by you of any provision of this Agreement, Reka, may, at its sole discretion immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
If Reka believes that criminal activity has occurred, Reka reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Service, including Your Content, in Reka’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce this Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Reka, its users or the public, and all enforcement or other government officials, as Reka in its sole discretion believes to be necessary or appropriate.
Storage. Unless expressly agreed to by Reka in writing elsewhere, Reka has no obligation to store any of
3.4. Your Content.
Reka has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
Except with respect to Your Content and User Content, you agree that Reka and its suppliers own all rights, title and interest in the Services. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any of the Services. Except as expressly stated in this Agreement, you are not granted any intellectual property rights in or to the Services by implication, estoppel, or other legal theory, and all rights in and to the Services not expressly granted in this Agreement are hereby reserved and retained by Reka.
The REKA mark, the Reka logo, and all related graphics, logos, trademarks, service marks, and trade names used on or in connection with the Services are the trademarks of Reka and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
4.3. Your Content.
Reka does not claim ownership of Your Content. However, when you Make Available Your Content on or in the Services, you represent that you own or have the necessary rights and consents for Reka, you, and the other users to whom you provide or make available Your Content to use, reproduce, display, and prepare derivative works from Your Content (in whole or in part).
4.5. License to Your Content.
You grant Reka a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive, transferable and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, prepare derivative works of, publicly perform, publicly display, and otherwise fully exploit Your Content (in whole or in part) for the purposes of operating and providing the Services to you and our other users and in connection with our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds).
If you elect to provide suggestions, enhancement requests, recommendations or other feedback provided by you that relates to the Services (“Feedback”), you hereby grant to Reka a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any Feedback. Reka will not identify you as the source of any such Feedback.
5. USER CONDUCT AND CERTAIN RESTRICTIONS.
As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Services or any other portion of the Services (including images, text, page layout or form); (iii) use any metatags or other “hidden text” using Reka’s name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (vii) impersonate any person or entity, including any employee or representative of Reka; (viii) interfere with or attempts to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service, introducing viruses, worms, or similar harmful code into the Service, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Service; or (ix) take any action or Make Available any Content on or through the Services that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Reka’s prior written consent. You may not post or Make Available a photograph of another person without that person’s permission. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Services terminates the licenses granted by Reka pursuant to this Agreement.
6. THIRD-PARTY SERVICES.
The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we may not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Reka. Reka is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Reka provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
7. FEES AND PURCHASE TERMS.
7.1. Third-Party Service Provider.
You agree to pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable as set forth on Reka’s pricing page, available at [insert URL]. By providing Reka and/or our Third-Party Service Provider with your payment information, you agree that Reka and/or our Third-Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Reka hereunder and that no additional notice or consent is required. You shall immediately notify Reka of any change in your payment information to maintain its completeness and accuracy. Reka reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Reka and/or our Third-Party Service Provider or our inability to collect payment constitutes your material breach of this Agreement. Except as set forth in this Agreement, all Fees for the Services are non-refundable.
The Fees do not include any Sales Tax (defined below) that may be due in connection with the Services provided under this Agreement. If Reka determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Reka shall collect such Sales Tax in addition to the Fees. If any services, or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Reka, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Reka for any liability or expense Reka may incur in connection with such Sales Taxes. Upon Reka’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
7.4. Withholding Taxes.
You shall make all payments of Fees to Reka free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Reka shall be your sole responsibility, and you shall provide Reka with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
You agree to indemnify and hold Reka, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Reka Party” and collectively, the “Reka Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content (including Prompts); (b) your use of, or inability to use, any of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any other users; or (e) your violation of any applicable laws, rules or regulations. Reka reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Reka in asserting any available defenses. This provision does not require you to indemnify any of the Reka Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this section will survive any termination of the Agreement and/or your access to the Services.
9. DISCLAIMER OF WARRANTIES AND CONDITIONS.
9.1. As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. REKA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(a) REKA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. REKA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM REKA OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, REKA MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT REKA’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
9.2. No Liability for Outputs.
THE REKA TOOLS ARE INTENDED AS OUTPUT GENERATION TOOLS ONLY AND DO NOT CONSTITUTE MEDICAL, LEGAL, ACCOUNTING, OR OTHER ADVICE OF A CERTIFIED OR QUALIFIED PROFESSIONAL AND REKA MAKES NO WARRANTY OR GUARANTY THAT THE OUTPUT WILL PROVIDE ACCURATE, TAILORED OR INFORMATIVE RESULTS OR BE FIT FOR THE PARTICULAR PURPOSE OR USE CASE. REKA DOES NOT REPRESENT OR WARRANT THAT YOU ARE THE LEGAL OWNER OF THE OUTPUT, OR THAT THE INPUT OR OUTPUT ARE PROTECTABLE BY ANY INTELLECTUAL PROPERTY RIGHTS, OR THAT THE OUTPUT DOES NOT INCORPORATE, INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. YOU SHALL BE SOLELY RESPONSIBLE FOR YOUR USE OF THE REKA TOOLS AND ANY OUTPUT RESULTING THEREFROM. YOU SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR YOUR SPECIFIC USE CASE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES. THIS SECTION WILL APPLY TO YOU SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
9.3. No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT REKA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD REKA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10. LIMITATION OF LIABILITY.
10.1. Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, IN NO EVENT SHALL THE REKA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT REKA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT ON ANY THEORY OF LIABILITY, RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (E) THE USE OF ANY CONTENT, INFORMATION, OR OTHER MATERIAL ON THE SERVICES OR LINKED TO THROUGH THE SERVICES; OR (F) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A REKA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A REKA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A REKA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2. Cap on Liability.
TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, THE REKA PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) $100; OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A REKA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A REKA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A REKA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
10.3. User Content.
10.4. Exclusion of Damages.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
10.5. Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN REKA AND YOU.
11. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT.
It is Reka’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to Reka by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Reka’s Copyright Agent for notice of claims of copyright infringement is as follows: Reka AI Inc., Attn: Copyright Agent, 530 Lawrence Expy. PMB 9004, Sunnyvale, CA, 94085.
12. TERM AND TERMINATION.
The Agreement commences on the date when you accept it (as described in the preamble above) and remains in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
12.2. Termination of Services by Reka.
If you have materially breached any provision of this Agreement, or if Reka is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Reka has the right to, immediately and without notice, suspend or terminate any Services provided to you. Reka reserves the right to terminate this Agreement or your access to the Service at any time without cause upon notice to you. You agree that all terminations for cause are made in Reka’s sole discretion and that Reka shall not be liable to you or any third party for any termination of your Account.
12.3. Termination by You.
If you want to terminate this Agreement, you may do so by (i) notifying Reka at any time and (ii) closing your Account for the Service. Your notice should be sent, in writing, to Reka’s address set forth below.
12.3. Effect of Termination.
Upon termination of the Services or the applicable feature or functionality thereof, your right to use the Services or the applicable feature or functionality thereof will automatically terminate, and we may delete Your Content associated therewith from our live databases. If we terminate your Account for cause, we may also bar your further use or access to the Services. Reka will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, will survive termination of Service, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
13. INTERNATIONAL USERS.
The Services can be accessed from countries around the world and may contain references to Services and content that are not available in your country; however, Reka makes no representations that the Services are appropriate or available for use in other locations. The Services are controlled and offered by Reka from its facilities in the United States of America. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
14. ARBITRATION AGREEMENT.
Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Reka and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
14.1. Applicability of Arbitration Agreement.
Subject to the terms of this Arbitration Agreement, you and Reka agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Services, any communications you receive through the Services, or the Agreement, including claims and disputes that arose between us before the effective date of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Reka may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Reka may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of the Agreement.
14.2. Informal Dispute Resolution. There may be instances when a Dispute arises between you and Reka. If that occurs, Reka is committed to working with you to reach a reasonable resolution. You and Reka agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. You and Reka therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you also agree to participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties in writing.
Notice to Reka that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to [email protected] and or by mail to Reka AI, Inc., 530 Lawrence Expy. PMB 9004, Sunnyvale, CA, 94085. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
14.3. Waiver of Jury Trial.
YOU AND REKA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Reka are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.4. Waiver of Class and Other Non-Individualized Relief. YOU AND REKA AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 14.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 14.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Reka agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in Santa Clara County, California. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Reka from participating in a class-wide settlement of claims.
14.5. Rules and Forum.
The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution Process described above does not resolve satisfactorily within sixty (60) days after receipt of Notice, you and Reka agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the National Arbitration and Mediation (“NAM”), in accordance with the Consumer Arbitration Rules (the “NAM Rules”) then in effect, except as modified by this section of this Arbitration Agreement. NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and otherwise agree, or the Batch Arbitration process discussed in Section 14.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the applicable NAM rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely set forth in the applicable NAM Rules.
You and Reka agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
14.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of California and will be selected by the parties from the NAM roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then NAM will appoint the arbitrator in accordance with the applicable NAM rules, provided that if the Batch Arbitration process under Section 14.9 is triggered, NAM will appoint the arbitrator for each batch.
14.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 14.4, including any claim that all or part of Section 14.4 is unenforceable, illegal, void or voidable, or that Section 14.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 14.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 14.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.8. Attorneys’ Fees and Costs.
The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Reka need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
14.9. Batch Arbitration.
To increase the efficiency of administration and resolution of arbitrations, you and Reka agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Reka by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), NAM shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Reka.
You and Reka agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings. This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
14.10. 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: [email protected] or by mail to Reka AI, Inc., 530 Lawrence Expy. PMB 9004, Sunnyvale, CA, 94085, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Reka account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
14.11. Invalidity, Expiration.
Except as provided in Section 14.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Reka as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in the Agreement to the contrary, we agree that if Reka makes any future material change to this Arbitration Agreement, it will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to Reka at: [email protected] or by mail to Reka AI, Inc., 530 Lawrence Expy. PMB 9004, Sunnyvale, CA, 94085, your continued use of the Services, including the acceptance of products and services offered on or through the Services, following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of the Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Services, any communications you receive, the provisions of this Arbitration Agreement as of the date you first accepted the Agreement (or accepted any subsequent changes to the Agreement) remain in full force and effect. Reka will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of the Agreement.
15. GENERAL PROVISIONS.
15.1. Electronic Communications.
The communications between you and Reka may take place via electronic means, whether you visit the Services or send Reka e-mails, or whether Reka posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Reka in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Reka provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Reka’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Reka may assign, transfer or delegate any of its rights and obligations hereunder without your consent.
15.3. Force Majeure.
Reka shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.4. Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to the Services, please contact us at: [email protected]. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
15.5. Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15.6. Agreement Updates.
15.7. Governing Law.
THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
Where Reka requires that you provide an e-mail address, you are responsible for providing Reka with your most current e-mail address. In the event that the last e-mail address you provided to Reka is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, Reka’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Reka at the following: [email protected]. Such notice shall be deemed given when received by Reka by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.10. Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.11. Entire Agreement.
The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.