TERMS OF SERVICE

Last Revised: Mar 2017

Please read this Terms of Service Agreement (the “Agreement”) carefully, which is a legal contract between you (“User”) and Eudaimon, Inc. (“Eudaimon”, “we”, or “us”). This Agreement sets out the terms and conditions upon which we allow you to use our website located at http://www.humancatalyst.co/ and any mobile applications associated therewith (collectively, the “Site”). By accessing or using the Site, accessing or using any content, information, services, features or resources available or enabled via the Site (collectively with the Site, the “Services”), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.

Changes to this Agreement

Please note that this Agreement is subject to change by Eudaimon in its sole discretion at any time. When changes are made, we will make a new copy of this Agreement available on the Site. We will also update the “Last Revised” date at the top of the Agreement. If we make any material changes, and you have registered with us to create an Account, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to the Agreement will be effective immediately for new Users and will be effective thirty (30) days after posting notice of such changes on the Site for existing Users, provided that any material changes shall be effective for Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Site or thirty (30) days after dispatch of an e-mail notice to Registered Users. If you do not agree to any changes after receiving a notice of such changes, you shall stop using the Services. Your continued use of the Site and/or Services constitutes your acceptance of such changes. Please regularly check the Sites to view the then-current Agreement.

1. Registration

1.1 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 (“Account”) and who has been granted to access to use the Site and Services by the holder of a license and/or subscription to use the Services (“Employer”).  Subject to rights expressly provided for in this Agreement, you acknowledge and agree that you have no ownership or property interest in your Account and that all rights in and to your Account are owned by and inure exclusively to the benefit of Eudaimon and/or the Employer.

1.2 Registration Data

In registering an Account, you agree to provide true, accurate, current and complete information about yourself as prompted by the registration form (“Registration Data”) and maintain and promptly update the Registration Data accordingly. You represent that you are of legal age to form a binding contract and not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Eudaimon immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same Eudaimon service at any given time. [Office1] [VW2] Eudaimon reserves the right to remove or reclaim any usernames at any time and for any reason.

2. Content

2.1 Types of Content

You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (“Content”) are the sole responsibility of the person from which such content originated.  Any and all Content that you upload, post, e-mail, transmit or otherwise make available through the Services (“Your Content”) is the sole responsibility of you and not of Eudaimon or another User.  Any and all Content that uploaded, posted, e-mailed, transmitted or otherwise made available through the Services by a User (“User Content”) is the sole responsibility of the User and not of Eudaimon. Your Content may be combined with other User Content into a consolidated platform through which the Services are provided, including but not limited to a roadmap of goals, processes, and next steps (“Catalyst Plan”).

2.2 Obligation to Pre-Screen Content

Eudaimon reserves the right, but shall have no obligation, to pre-screen, flag, filter, refuse, modify or move any content available through the Services. You understand that by using the Site and/or the Services you may be exposed to content that is offensive, indecent or objectionable, and that you use the Site and/or the Services at your own risk. In the event that Eudaimon pre-screens, refuses or removes any Content, you acknowledge that Eudaimon will do so for Eudaimon’s benefit, not yours. Without limiting the foregoing, Eudaimon shall have the right to remove any Content that violates this Agreement or is otherwise objectionable. You acknowledge and understand there are commercially available services and software to limit access to material that you may find objectionable, and you have the sole responsibility to use such services as you deem appropriate

2.3 Ownership of Content

Eudaimon does not claim ownership of Your Content. However, when you post or publish Your Content on or in the Services, you represent that you have all of the necessary rights to grant Eudaimon the license set forth in Section 2.5. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Site and/or the Services.

2.4 Disclosure of Your Content

You acknowledge and understand that Your Content and/or your Catalyst Map may be disclosed to certain members of the Employer such as Employer management, your immediate supervisors, and other individuals authorized by you and/or the Employer to receive such information in order to provide you with the Services. You acknowledge and understand that should any User Content and/or a User’s Catalyst Map be disclosed to you, you shall disclose and/or use such Content only to facilitate providing the Services to such User, and you shall not disclose and/or use such Content in any way that is outside the scope of the Services.

2.5 License to Your Content

You grant Eudaimon the right and license to use and display Your Content (in whole or in part) for the purposes of operating and providing the Services on the basis that such license is irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license. You acknowledge and understand that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.

2.6 Backing up User Content

We are not obligated to backup User Content, and Your Content may be deleted at any time without prior notice. Accordingly we recommend you store and backup copies elsewhere.

2.7 Moral rights waiver

You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to Your Content.

2.8 Do not send us confidential information in Your Content.

Please note that User Content will not be treated as confidential information. Accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary. You acknowledge that your communications with other users and/or the Employer via the Site and/or the Services are public and not private communications, and that you have no expectation of privacy in respect of such communications.

2.9 Other Restrictions on User Content

You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law, including but not limited to any applicable laws regarding online conduct and acceptable content and/or applicable laws regulating the export of data to and from the United States or your country of residence. You shall not (and shall not permit any third party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Eudaimon’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Eudaimon; (vi) interferes with or disrupts the Site and/or Services and/or Eudaimon’s servers or networks.

3. Ownership of and License to Use the Services

3.1 Use of the Services

Eudaimon owns all rights, title and interest in the Site and/or Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Eudaimon grants you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to use the Services solely for your personal non-commercial purposes. Any future release, update or other addition to the Services shall be subject to this Agreement. Eudaimon and third party vendors and/or service providers reserve all rights not granted in this Agreement

3.2 Trademarks

Eudaimon’s stylized name and other related graphics, logos, service marks, trade dress and trade names used on or in connection with the Services are the trademarks of Eudaimon and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks, trade dress and trade names that may appear on or in the Services are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark, trade dress or other proprietary rights notices incorporated in or accompanying the Site and/or Services[VW3] .

4. Restrictions on Use of Services

The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (b) you shall not frame or use framing techniques to enclose any trademark, logo or Services (including images, text, page layout or form) of Eudaimon; (c) you shall not use any metatags or other “hidden text” using Eudaimon’s name or trademarks; (d) you shall not 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; (e) you shall not 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 the Services (except to the extent that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Sites 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); (f) you shall not access the Services to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm our Services, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Services, 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 Services; (k) you shall not use or attempt to use another User’s account without authorization from the Company, or create a false identity on the Site and/or through the Services ; (l) you shall not participate, directly or indirectly, in the setting up or development of a network that seeks to implement practices that are similar to sales by network or the recruitment of independent home salespeople to the purposes of creating a pyramid scheme or other similar practice; (m) you shall not duplicate, license, sublicense, publish, broadcast, transmit, distribute, perform, display, sell, rebrand, or otherwise transfer information found on the Site and/or through the Services (excluding content posted by you) except as permitted in this Agreement. Any unauthorized use of the Services terminates the licenses granted by Eudaimon pursuant to this Agreement.

5. Third-Party Links

The Site and/or the Services may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Services. Eudaimon does not control and is not responsible for Third-Party Links. Eudaimon provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.

6.  Indemnification

You agree to indemnify and hold Eudaimon, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Eudaimon Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Eudaimon 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 Eudaimon in asserting any available defenses. This provision does not require you to indemnify any of the Eudaimon Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Sites or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement or your access to the Services.

7. Disclaimer

Your access to and use of the Site and/or Services is at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, THE EUDAIMON PARTIES DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. We make no warranty and disclaim all responsibility and liability for the completeness, accuracy, availability, timeliness, security or reliability of the Services or any content thereon. Eudaimon Parties will not be responsible or liable for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Site and/or Services. You also agree that Eudaimon Parties has no responsibility or liability for the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from Eudaimon or through the Services, will create any warranty not expressly made herein.

8. Limitation of Liability

Neither Eudaimon nor any of the Eudaimon Parties shall be cumulatively liable for (a) any damages in excess of the total amount paid to Eudaimon by you during the act, omission or occurrence giving rise to such liability, if any, or US $100, whichever amount is greater, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Site and/or Services. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose. The laws of some states do not allow for the exclusion or limitation of certain damages. If these laws apply to you, some or all of the foregoing disclaimers, exclusions and limitations may not apply to you and you might have other rights.

9. Term and Termination

9.1 Term

This Agreement commences on the date you accept this Agreement and remains in full force and effect while you use the Services, unless terminated earlier in accordance with this Agreement.

9.2 Mutual Rights of Termination

You may terminate this Agreement, for any or no reason, at any time, with notice to Eudaimon. This notice will be effective upon Eudaimon processing your notice. Eudaimon may terminate the Agreement, your Account and/or your access to the Site and/or Services for any reason or no reason, including but not limited to any misuse of the Site and/or Services or violation of the letter or spirit of this Agreement, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. You acknowledge and understand that all terminations shall be made in our sole discretion and that we shall not be liable to you or any third-party for enforcing this provision.

9.3 Effect of Termination

All provisions of the Agreement which by their nature should survive, shall survive termination of your use of the Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

9.4 No Subsequent Registration

If your registration(s) with or ability to access the Services is discontinued by Eudaimon, you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise. In the event that you violate the immediately preceding sentence, Eudaimon reserves the right, in its sole discretion, to immediately take any or all of the actions set forth in this Agreement without any notice or warning to you.

10. Dispute Resolution

Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Eudaimon and limits the manner in which you can seek relief from us.

10.1 Applicability of Arbitration Agreement.

You agree that any dispute or claim relating in any way to your access or use of the Services, to any products sold or distributed through the Site, or to any aspect of your relationship with Eudaimon, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Eudaimon 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). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.

10.2 Arbitration Rules and Forum.

The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to 901 Mission Street, San Francisco, CA 94123 The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Eudaimon will pay them for you. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the City of San Francisco, California. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the nonprevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award.

10.3 Authority of Arbitrator.

The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Eudaimon. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). 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 arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.

10.4 Waiver of Jury Trial.

You and Eudaimon hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or jury. You and Eudaimon are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 11.1 above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review. 

10.5 Waiver of Class or Consolidated Actions.

All claims and disputes within the scope of this Arbitration Agreement must be arbitrated on an individual basis and not on a class basis, only individual relief is available, and claims of more than one customer or user cannot be arbitrated or consolidated with those of any other customer or user. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 11.6.

10.6 Severability

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.

10.7 Survival of Agreement.

This Arbitration Agreement will survive the termination of your relationship with Eudaimon.

11. General Provisions

11.1 Electronic Communications

The communications between you and Eudaimon use electronic means, whether you visit the Services or send Eudaimon e-mails, or whether Eudaimon posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Eudaimon in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Eudaimon 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.

11.2 Release

You hereby release Eudaimon Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Eudaimon Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Sites or any Services provided hereunder.

11.3 Assignment

The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Eudaimon’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

11.4 Force Majeure

Eudaimon 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.

11.5 Questions, Complaints, Claims

If you have any questions, complaints or claims with respect to the Services, please contact us at hello@humancatalys.co. 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.

11.6 Exclusive Venue

To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Eudaimon agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state courts in San Francisco, California York or federal courts located in the Northern District of California

11.7 Governing Law

The 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 this Agreement.

11.8 Notice

Where Eudaimon requires that you provide an e-mail address, you are responsible for providing Eudaimon with your most current e-mail address. In the event that the last e-mail address you provided to Eudaimon is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the Agreement, Eudaimon’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Eudaimon at the following address: 901 Mission Street San Francisco, CA, 94103, United States. Such notice shall be deemed given when received by Eudaimon by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

11.9 Waiver

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.

11.10 Severability

Subject to Section 11.5, 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.

11.11 Export Control

You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law.

11.12 Consumer Complaints

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

11.13 Entire Agreement

This 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.