Terms & Conditions
Elite Sterling Security, LLC Terms and Conditions of eCommerce Site Use
Effective as of April 17, 2014
This Agreement applies to all visitors, users, and others who access the Service and/or purchase Elite Sterling Security products, including users who also contribute Content to the Service (“Users”). Content will include, but is not limited to, any text, software, scripts, graphics, photos, drawings, characterizations, sounds, music, videos, audiovisual combinations, interactive features, your and/or other persons’ names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials you may view on, access through, or contribute to the Service.
Nothing in this Agreement will be deemed to provide any benefits or rights to any third party.
3. Account Registration
To use certain aspects of the Elite Sterling Security Service, you may now or in the future be required to register an account (including certain Personal Information) with Elite Sterling Security. Registration will allow you to set up an account for purchasing Elite Sterling Security products. If you choose not to register, you may not be able to use all of the services offered by Elite Sterling Security. Your account will give you access to the current services and functionality that we maintain as well as new services that we may add from time to time at our sole discretion. As part of your registration, you will be asked to provide an account user name and email address as well as certain additional information. If you decide to register, you agree to provide true, accurate and complete information about yourself. You agree that you are solely liable and legally responsible for all actions taken via your account or username, whether or not made with your knowledge or authority. If you suspect that someone may using your account without authorization, you must notify Elite Sterling Security immediately of any breach of security or unauthorized use of your account. Elite Sterling Security will not be liable for your losses caused by any unauthorized use of your account. You may be held liable for the losses of Elite Sterling Security or others due to such unauthorized use. Elite Sterling Security reserves the right but has no obligation to monitor User Content and remove or block posting of any User Content in its sole discretion.
By providing Elite Sterling Security your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail, except as otherwise required by mandatory provisions of applicable law that cannot be contractually waived, altered or minimized. We may also use your email address to send you other messages, such as newsletters or changes to features of the Service. If you do not want to receive additional such email messages, you may opt out by taking the unsubscribe steps outlined in the email itself. Opting out may prevent you from receiving email messages regarding updates or improvements.
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure, through our Web Design and Hosting company, Intuit/Homestead. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
This Service is intended solely for Users who are eighteen (18) years of age or older, and any registration, use or access to the Service by anyone under thirteen (13) is unauthorized, unlicensed, and in violation of this Agreement. Elite Sterling Security may terminate your account, delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service), including purchasing products, for any reason, at any time in its sole discretion, with or without notice, including, without limitation, if it believes that you are under eighteen (18).
7. Permitted Use of Service
Elite Sterling Security grants you permission to use the Service only as set forth in and subject to the terms of this Agreement. Once you have registered an account, subject to the terms of this Agreement, Elite Sterling Security grants you permission to upload certain messages, comments, reviews and questions in text format on its blog section and/or use the Elite Sterling Security Service as expressly authorized in writing by Elite Sterling Security. We will answer questions in a timely manner via our Service or your personal email address at our sole discretion, for more direct contact with the Elite Sterling Security team, please email us directly at [email protected] Sterling Security.com.
8. Prohibited Use of Service
You will comply with all applicable laws and regulations and refrain from violating any rights of Elite Sterling Security or any third-party in connection with this Agreement. Without limiting the generality of the foregoing:
(a) you will not copy, distribute, or disclose any part of the Service in any medium;
(b) you will not violate, interfere with, damage, or compromise the integrity or security of the Service, decipher any transmissions to or from the servers running the Service, or remove any proprietary notices from the Service or copies thereof;
(c) you will not access any Content through any technology or means other than through the available technology of the Service itself or other such means as specifically authorized by Elite Sterling Security;
(d) you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose;
(e) you will not decompile, disassemble, reverse engineer, or hack the Service and/or data transmitted, processed or stored by Elite Sterling Security or by other users, except to the extent expressly permitted by mandatory provisions of applicable law that cannot be contractually waived, altered or minimized, but then only with thirty (30) days prior written notice to Elite Sterling Security;
(f) you will not sell, sublicense, assign, rent, lease, or grant rights in the Service to any other person for any reason;
(g) you will not use the Service for the sale of advertising, sponsorships or promotions;
(h) you will not use the Service to, or in any way that would, violate any applicable law or regulation, any contract, or any other third-party rights;
(i) you will not upload invalid data, viruses, worms, or other software agents through the Service;
(j) you will not impersonate another person or otherwise misrepresent your affiliation with a person or entity, conduct fraud, hide or attempt to hide your identity;
(k) you will not attempt to do anything or induce or enable others to do or attempt to do anything prohibited by this paragraph;
(l) you will otherwise comply with the terms and conditions of this Agreement;
(m) you will not use the service unless you are at least eighteen (18) years of age or are otherwise eligible to use the Service as set forth in Section 6 above; and
(n) you will never use another member’s account without permission.
You agree not to use or launch any automated system, including without limitation, “harvesting,” “bots,” “robots,” “spiders,” “scrapers,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to the Elite Sterling Security servers than a human can reasonably produce in the same period of time by using a conventional online web browser. You agree not to collect or harvest any personally identifiable information, including account names, from the Service nor to use the communication systems provided by the Service (e.g., comments, email, etc.) for any commercial solicitation purposes. You agree to not tamper with any data sent or received by Elite Sterling Security’s services. Notwithstanding the foregoing, Elite Sterling Security grants the operators of public search engines permission to use spiders to copy materials from the site 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. Elite Sterling Security reserves the right to revoke these exceptions either generally or in specific cases.
9. Termination or Suspension of the Service or Your Access to the Service
Elite Sterling Security may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if you violate any provision of the Agreement or take any action that imposes, or may impose at Elite Sterling Security’s sole discretion, an unreasonable or disproportionately large load on our infrastructure. Elite Sterling Security reserves the right to modify, discontinue, or suspend its operation of the Service, or any part thereof, temporarily or permanently, at any time, without notice to you. Upon termination or suspension of your access for any reason, you continue to be bound by this Agreement.
10. User Content
Some areas of the Service allow Users to post Content (such as feedback, comments, questions and other information) (“User Content”). You are solely responsible for the User Content that you submit, post, upload, embed, publish, link, display, communicate or distribute to or otherwise make available (defined herein as, “post”) on the Service.
You agree not to post User Content that:
(a) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal;
(b) may create a risk of any other loss or damage to any person or property;
(c) may constitute or contribute to a crime or tort;
(d) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, obscene, hateful, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable;
(e) contains any information or content that is illegal;
(f) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships;
(g) contains any information or content that you know is not correct and current;
(h) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Service; or
(i) is an unsolicited commercial communication not permitted by law.
You agree that any User Content, and Elite Sterling Security’s use thereof as set forth in this Agreement, that you post does not and will not violate or infringe on any third-party rights of any kind, including, without limitation, any Intellectual Property Rights (as defined below), privacy rights or rights of publicity.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You will be solely responsible for your own User Content and the consequences of posting or publishing it. In connection with User Content, you affirm, represent and warrant that you own or have the necessary licenses, rights, consents and permissions to publish your User Content and you license to Elite Sterling Security all Intellectual Property Rights in and to such User Content for publication on the Service pursuant to this Agreement. In addition, you affirm, represent and warrant, that you have the written consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
Elite Sterling Security reserves the right, but is not obligated, to reject and/or remove any User Content that Elite Sterling Security believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
Elite Sterling Security takes no responsibility, nor assumes any liability for any User Content that you or any other Users or third parties post or send over the Service. Elite Sterling Security does not guarantee any confidentiality with respect to any User Content you post. You acknowledge that User Content posted through the Service is placed into a public forum and that you have no expectation of privacy with any such postings. You make all such disclosures at your own risk. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. Elite Sterling Security is not responsible for any public display or misuse of your User Content. Elite Sterling Security does not endorse any User Content or any opinion, recommendations or advice expressed within any User Content. You understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree that Elite Sterling Security will not be liable for any damages you allege to incur as a result of such content. Pursuant to 47 U.S.C. Section 230 (d) as amended, Elite Sterling Security hereby notifies you that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. The following vendors provide such protections: Net Nanny (http://www.netnanny.com); WebWatcher (http://webwatcherkids.com); Sentry Parental Controls (http://sentryparentalcontrols.com). Elite Sterling Security does not endorse any products or services available through the referenced vendors.
You are solely responsible for your interactions with other Elite Sterling Security Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users.
11. License Grant
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-sublicenseable, limited, personal license to use the Service within the United States, for as long as you are a User. Elite Sterling Security reserves all rights in the Service and the Elite Sterling Security Content (as defined below) that are not expressly granted to you under this Agreement. Elite Sterling Security may terminate this license at any time for any reason or no reason without your consent or notice to you.
12. Elite Sterling Security’s Proprietary Rights
The Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the “Elite Sterling Security Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Elite Sterling Security and its licensors. Except as explicitly provided herein, nothing in this Agreement will be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Elite Sterling Security Content or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
You retain all of your ownership rights in your Content. However, by submitting your User Content to Elite Sterling Security, you hereby grant Elite Sterling Security a worldwide, non-exclusive, royalty-free, sublicenseable and transferable (in whole or in part) license to use, reproduce, distribute, prepare derivative works of, display, and perform any of your User Content in connection with the Service and Elite Sterling Security’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Service and under this Agreement. You understand and agree, however, that Elite Sterling Security may retain, but not display, distribute, or perform, server copies of your User Content that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
You may choose to, or we may invite you to, submit comments or ideas about the Service and our products, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Elite Sterling Security under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to you. You acknowledge that, by acceptance of your submission, Elite Sterling Security does not waive any rights to use similar or related Ideas previously known to Elite Sterling Security, or developed by its employees, or obtained from sources other than you.
13. Procedure for Making Claims of Copyright Infringement
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Elite Sterling Security’s copyright agent and provide the following information in writing:
(a) An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
(b) Identification of the copyrighted work that you claim has been infringed;
(c) Identification of the material that is claimed to be infringing and where it is located on the Service;
(d) Information reasonably sufficient to permit Elite Sterling Security to contact you, such as your address, telephone number, and e-mail address;
(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the Elite Sterling Security Copyright Agent at:
To: Elite Sterling Security
Attn: Copyright Agent
Elite Sterling Security
3773 Cherry Creek North Drive
Denver, CO 80209
Email to [email protected]
Under United States federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
If the alleged infringer believes that a notice of copyright infringement has been wrongly filed, the alleged infringer may file a counter-notification with Elite Sterling Security’s Copyright Agent. To be effective, a counter-notification must be a written communication provided to Elite Sterling Security’s Copyright Agent that includes the following information:
(a) An electronic or physical signature of the alleged infringer;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) A statement under penalty of perjury that the alleged infringer has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
(d) The alleged infringer’s name, address, and telephone number, and a statement that the alleged infringer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the alleged infringer’s address is outside of the United States, for any judicial district in which Elite Sterling Security may be found, and that the alleged infringer will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a counter-notification containing the information as outlined in (a) through (d) above:
(a) Elite Sterling Security may promptly provide you with a copy of the counter-notification; Elite Sterling Security may inform you that it will replace the removed material or cease access to it within ten (10) business days; and
(b) Elite Sterling Security may replace the removed material or cease access to the material within ten (10) to fourteen (14) business days following receipt of the counter-notification, provided Elite Sterling Security’s Copyright Agent has not received notice from you that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity relating to the material on Elite Sterling Security’s network or system.
Please note that this procedure is exclusively for notifying Elite Sterling Security and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Elite Sterling Security’s rights and obligations under the applicable copyright law, including but not limited to the Digital Millennium Copyright Act of 1988 (“DMCA”), and 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under any applicable laws.
In accordance with the DMCA and other applicable law, Elite Sterling Security has adopted a policy of terminating, in appropriate circumstances and at Elite Sterling Security’s sole discretion, members who are deemed to be repeat infringers. Elite Sterling Security may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe on any intellectual property rights of others, whether or not there is any repeat infringement.
15. Third-party websites, advertisers or services
You expressly relieve Elite Sterling Security from any and all liability arising from your use of any third-party website or services or third-party owned content. Additionally, your dealings with or participation in promotions of advertisers found on Elite Sterling Security, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Elite Sterling Security will not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
16. No warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, ELITE STERLING SECURITY AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. YOU HEREBY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
ELITE STERLING SECURITY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE ELITE STERLING SECURITY SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ELITE STERLING SECURITY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
17. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ELITE STERLING SECURITY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL ELITE STERLING SECURITY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELITE STERLING SECURITY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (E) ANY BUGS, VIRUSES, TROJAN HORSES, MALWARE, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (G) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT WILL ELITE STERLING SECURITY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE GREATER OF THE AMOUNT (IF ANY) YOU PAID TO ELITE STERLING SECURITY HEREUNDER AND $100.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ELITE STERLING SECURITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THOSE WHO ACCESS OR USE THE SERVICE DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS.
The Service is controlled and offered by Elite Sterling Security from its offices in the United States of America. Elite Sterling Security makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Elite Sterling Security and its subsidiaries, agents, managers, licensors, licensees, representatives and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Service, including any data or work transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any claim or damages that arise as a result of any of your User Content or any that are submitted via your account; or (f) any other party’s access and use of the Service with your unique username. You agree to use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
All prices are shown in U.S. dollars; taxes, shipping and handling charges are additional. Custom products will be priced in U.S. Dollars, with the price being agreed upon during consultation with you and/or your agent(s). All items are subject to availability and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue products or services without notice, even if you have already placed your order. All prices are subject to change without notice and you agree that taxes may be adjusted from the amount shown on the billing screens. Several factors may cause this, including changes in tax rates.
20. Product Information/Errors
We attempt to be as accurate as possible and eliminate errors on the Service; however, we do not warrant that any product, service, description, photograph, pricing or other information is accurate, complete, reliable, current or error-free. In the event of an error, whether on the Service, in an order confirmation, in processing an order, delivering a product or service or otherwise, we reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any amount charged. Your sole remedy in the event of such error is to cancel your order and obtain a refund or replacement product under our Return Policy.
21. Product Availability
If the item (or certain color or size) you want is sold out or otherwise not available, when such item (or color or size) is selected in the appropriate drop-down box on the Product Information page, a notice will appear stating that the requested item is sold out and/or is otherwise not available for ordering. If this is the case, please check back later. Sometimes we will not know in advance that product is unavailable. Some items may be unavailable even if the Service indicates that they are in-stock, and adding an item to your cart does not guarantee the availability of that item. If the item is no longer available, we will cancel the item from your order and notify you, usually via e-mail.
22. Electronic Transactions & Records
You agree that all of your transactions with or through the Service may, at our option, be conducted electronically from start to finish, and that any oral conversations may be recorded. If we decide to proceed non-electronically, those transactions will still be governed by the remainder of the terms in this Agreement unless you enter into different terms provided by us. You are responsible for printing or making an electronic copy of this Agreement and any other contract or disclosure that we are required to provide to you.
23. Shipping & Handling; No Export by You
When we ship to you or per your directions, you agree to pay the shipping and any handling charges shown on the Service when your order is placed. We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice, so you agree to check all charges before placing an order or signing up for a service. Generally, shipping is by standard ground delivery. Any shipping or handling charges may or may not reflect actual costs. All orders are shipment contracts, not destination contracts. Any shipping times shown on the Service are estimates only. Actual delivery dates may vary. You agree that you will not obtain or direct shipment of product for export.
24. Payments & Refunds
Only valid credit cards or other payment method acceptable to us may be used and all refunds will be credited to the same card or, in our discretion, other method. By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize us to charge your order (including taxes, shipping, handling and any other amounts described on the Service) to that card or other method. If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. Regarding your account information, you agree to keep all payment cards or other payment method information current and that we may submit charges for processing even if the card (or other method) has expired or changed by the time we submit it. You must resolve any problem we encounter in order to proceed with your order.
25. Returns and Exchanges
General returns information and instructions can be found on our website under Return Policy.
Returns may make you ineligible for promotions and we reserve the right to require identification, proof of purchase, or additional verifiable information to help Elite Sterling Security locate the purchase in our records. After we have received your valid return authorization number, we will provide one of the following within a reasonable time: an exchange of merchandise for the item returned, a non-transferable merchandise credit, a credit to the payment card used to pay for the product, or another remedy that we determine in good faith is appropriate in the circumstances. If you do not comply with any of the conditions set forth in this Agreement or the Return Policy, we reserve the right to refuse the return or exchange, or to impose different or additional conditions, including (without limitation) basing our response on the current sales price.
Custom Items cannot be returned, due to the unique, custom nature of the item; however, Elite Sterling Security, LLC will seek to work with you to resolve and issues related to the Custom item.
If you believe a product sold by Elite Sterling Security has a condition or defect that might make it unsafe, please report this safety concern immediately by emailing us at:
26. Complaints and Legal Notices
All complaints and legal notices should be mailed to:
Elite Sterling Security
Attn: Legal Department
3773 Cherry Creek North Drive
Denver, CO 80209
Email to [email protected]
If you are a California resident, the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834 or (800) 952-5210.
ELITE STERLING SECURITY MAKES NO, AND EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER IN WRITING, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PRODUCTS AND SERVICES PROVIDED BY ELITE STERLING SECURITY ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND BY Elite Sterling Security. Manufacturers of non- Elite Sterling Security branded products may provide other warranties, and you agree that you will look solely to the warranty(s), if any, provided by those manufacturers. Warranties give you specific legal rights, and you may have other rights, which vary from state to state.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OR ALL OF THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
28. Exclusivity of Remedy & Limitation of Liability
YOUR SOLE AND EXCLUSIVE REMEDY, AND ELITE STERLING SECURITY’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY BREACH OF WARRANTY SHALL BE YOUR RIGHT TO RETURN THE PRODUCT OR RECEIVE A REFUND FOR THE SERVICE UNDER THE ELITE STERLING SECURITY RETURN POLICY. IN NO EVENT SHALL ELITE STERLING SECURITY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL THE AGGREGATE LIABILITY OF ELITE STERLING SECURITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES PURCHASED THROUGH THE SERVICE EXCEED THE PURCHASE PRICE OF THE PRODUCT OR SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
(a) Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Elite Sterling Security without restriction.
(c) Governing Law. You agree that the Service does not give rise to personal jurisdiction over Elite Sterling Security, either specific or general, in jurisdictions other than the state of California, United States of America. This Agreement will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Elite Sterling Security that arises in whole or in part from the Service will be decided exclusively by a court of competent jurisdiction located in Santa Clara County, California. Those who choose to access the Elite Sterling Security Service do so at their own initiative and are responsible for compliance with all applicable laws including any applicable local laws.
(d) Arbitration. For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration will initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(e) Notification Procedures. Elite Sterling Security may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by Elite Sterling Security in our sole discretion. Elite Sterling Security reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Please note that, at all times, you are responsible for updating your personal information to provide us your current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any other reason is not capable of delivering to you notice as described above, our dispatch of the e-mail containing any such notice will nonetheless constitute effective notice.
(f) Entire Agreement/Severability. This Agreement, together with any other legal notices and agreements published by Elite Sterling Security, LLC via the Service, will constitute the entire agreement between you and Elite Sterling Security, LLC concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect.
(g) No waiver. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and Elite Sterling Security, LLC’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
YOU AND ELITE STERLING SECURITY, LLC AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Please contact us [email protected] with any questions regarding this Agreement.
STANDARD TERMS AND CONDITIONS
(ESS Products Sold to Buyer in U.S.)
Sole Terms and Conditions. These Standard Terms and Conditions (the “Agreement”) govern the transaction between Elite Sterling Security, LLC, a Colorado limited liability company (“ESS”) and you, the purchaser of ESS’ Product(s) (“Buyer”). All purchase terms and conditions in addition to or in conflict with those contained herein are hereby rejected and are not applicable, unless such terms and conditions are specifically accepted by ESS in writing. For the purposes of this Agreement, personal ballistic and bullet resistant clothing purchased by Buyer from ESS shall be referred to as the “Product(s)”.
Prices, Taxes, Payment, Delivery, and Delays. Prices, all in U.S. dollars, and delivery shall be by UPS Ground at Buyer’s designated delivery location in the U.S., except as otherwise provided in the Purchase Order. Insurance covering delivery will be provided by ESS at Buyer’s cost and will be collected with shipping and handling charges. The prices specified are exclusive of any and all taxes, tariffs, duties and any other charges including sales taxes. Buyer agrees to pay and otherwise be fully responsible for any such taxes, tariffs, duties and any other charges. Payment is due on the date Buyer orders Product from ESS, unless ESS establishes a credit line for the account of Buyer as provided on the Purchase Order. In the event of default in payment by Buyer, Buyer agrees to pay ESS interest on the delinquent payment from the due date thereof until such payment and all interest thereon is received at the rate of 1½ % per month compounded, but not in excess of the lawful maximum (which charges and interest are not in lieu of any other right ESS may have for Buyer’s breach). Dates for delivery quoted by ESS or provided in an accepted order are approximations only and ESS will not be liable for delay in shipment for any reason. ESS will not be liable for any damages or penalty for delay in delivery or for failure to give notice of delay.
Passage of Title and Benefits and Risks of Ownership and Security Interest. All benefits and risks of ownership, including title and risk of loss of the Products, shall pass to the Buyer at the time of delivery to the Buyer by UPS. As security for payment, Buyer grants to ESS a purchase money security interest in the Products and agrees that a copy of this Agreement or any other appropriate document may be registered as required to perfect the security interest granted. Unless Buyer has executed the ESS Master Reseller Agreement, Products may not be resold by Buyer and shall be used only for Buyer’s personal use.
Inspection and Acceptance. Upon delivery of any Product, Buyer shall immediately inspect such Product at its own cost, and if Buyer finds that such Product does not conform to the description in the Purchase Order, Buyer shall within fifteen (15) days after its delivery, give ESS written notice specifying the details of the non-conformity and return the non-conforming Product to ESS in the original packaging or packaging adequate for shipping. ESS will not accept a return of Products damaged by Buyer or Buyer’s carrier. A failure by Buyer to give such notice and return of Product to ESS shall constitute an irrevocable acceptance of the Product by Buyer. ESS shall have the right following any rightful rejection to substitute conforming Products within a reasonable period of time after ESS’s receipt of the aforesaid notice from Buyer. ESS reserves the right to charge a restocking fee. Custom tailored Products may not be returned.
Purchase Orders. All purchases under this Agreement will be pursuant to Purchase Orders submitted by Buyer in form and substance satisfactory to ESS. If an order placed by Buyer is acknowledged and accepted by ESS in writing, it becomes a contract of sale on the terms of this Agreement. Therefore, each Purchase Order will automatically be deemed to include all the terms and conditions of this Agreement, unless different terms and conditions are specifically accepted by ESS in writing.
Compliance with Laws. Buyer represents and warrants that Buyer is of legal age, has no felony convictions, and is otherwise authorized to purchase, own, and possess body armor Products under the laws of the jurisdiction where Buyer resides and may use the Products.
Product Changes, Product Specifications. ESS reserves the right, without prior approval from or notice to Buyer, to make changes to Products or their specifications (a) which do not materially adversely affect the performance of the Product or reduce performance below any contract specifications; (b) when required for purposes of safety; (c) to meet Product specifications; or (d) when required to conform with any applicable statutory or regulatory requirements. ESS reserves the right to make Product improvements without incurring any obligation or liability to make the same changes in Products previously manufactured or purchased.
Product Warranty. Except for the Limited Warranty provided by the Manufacturer of the Product, as set forth in Section 9 below, the Products are provided by ESS on an ‘as is’ basis and there are no other representations, warranties or conditions, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade or otherwise, regarding them or any other product or service provided hereunder or in connection herewith by ESS. ESS EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES TO THE EXTENT PERMITTED BY LAW OR CONDITIONS OF DURABILITY, MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. ESS DOES NOT REPRESENT OR WARRANT THAT THE PRODUCTS WILL MEET ANY OR ALL OF BUYER’S PARTICULAR REQUIREMENTS, THAT THE PRODUCTS WILL OPERATE ERROR-FREE OR THAT ALL ERRORS OR DEFECTS IN THE PRODUCTS CAN BE FOUND TO BE CORRECTED.
This Limited Warranty allocates risk between Buyer and ESS, and ESS Product pricing reflects this allocation of risk and the limitations of liability contained in this Limited Warranty. The agents, employees, resellers, dealers or representative of ESS are not authorized to make modifications to this Limited Warranty, or make additional warranties binding on ESS. Accordingly, additional statements such as advertising or presentations, whether oral or written, do not constitute warranties by ESS and should not be relied upon.
Manufacturers Limited Warranty. Miguel Caballero, Ltda., the manufacturer of the Products (“Manufacturer”) warrants to Buyer that (1) the body armor system(s) sold in connection with the Product shall meet the Ballistic Performance Specifications contained in the Limited Warranty accompanying the Product for a period of sixty (60) months after the date of purchase; (2) the ballistic panel portion(s) of the body armor system(s) sold in connection with the Product shall be free from defects in material and workmanship for a period of sixty (60) months after the date of purchase; and (3) the outer shell carrier/garment portion(s) of the body armor system sold in connection with the Product shall be free from defects in material and workmanship for a period of six (6) months after the date of purchase (collectively, the “Limited Warranty”). As more fully set forth in the terms and conditions of the Limited Warranty provided by the Manufacturer, this Limited Warranty is conditioned upon proper use and care of the Product by the Buyer in accordance with the Use and Care instructions contained in the applicable Use and Care Manual accompanying each Product. Among other conditions and limitations, this Limited Warranty does not cover (and will become null and void in the event of): (a) defects or damage resulting from misuse, abuse, accident, neglect, alteration, breakage, interruption, damage, improper storage or handling, our unauthorized use or service; (b) interchanging or replacing the Product’s ballistic panels with those from another manufacturer; (c) interchanging or placing the Product’s ballistic panels into another manufacturer’s outer shell carrier; (d) wearing the outer shell carrier without inserting the ballistic panels; (e) inserting the ballistic panels into the outer shell carrier in the incorrect direction; and/or (f) using the Product in any other unauthorized configuration. During the term of the Limited Warranty, ESS will return any defective item to Manufacturer on behalf of Buyer to remedy, repair or replace, at Manufacturer’s sole option, any defective component of the Product, provided that the Product is returned promptly upon discovery of the defect and within the applicable term of the Limited Warranty. To obtain service, Products must be returned to ESS at Buyer’s cost in the original packaging or packaging adequate for shipping, accompanied by Buyer’s sales receipt or comparable substitute proof of sale showing the date of purchase of the Product. A valid RMA is required prior to any return which may be obtained from Manufacturer. Manufacturer may, at Manufacturer’s sole option, use rebuilt, reconditioned, or new parts or components when repairing any Product or replace a Product with a rebuilt, reconditioned or new Product. All replaced parts, components, or equipment shall become the property of Manufacturer. If Manufacturer determines that any Product is not covered by this Limited Warranty, Buyer must pay the costs for all parts, shipping, and labor charges for the repair or return of such Product. A full copy of the terms and conditions of Manufacturer’s Limited Warranty is available upon request.
Intellectual Property. Manufacturer, ESS and its licensors retain all right, title and interest (including, without limitation, all copyright) in and to Manufacturer’s and ESS’ trademarks, copyrights, intellectual property (the “Marks”), and any modification, translation or adaptation or any other improvement, development or derivative work of the foregoing. Buyer shall gain no right, title or interest by virtue of this Agreement. Buyer further agrees that it shall not: (a) alter the Marks; (b) assert any claim or interest in or to anything which may adversely affect the validity or enforceability of any of the Marks; (c) register, seek to register, or cause to be registered any of the Marks; or (d) adopt or use such Marks, trade names, logos or insignia or any confusingly similar word or symbol, as part of Buyer’s company or partnership name.
Limitation of Liability. In no event will ESS be liable for special, indirect or consequential damages or punitive damages, including loss of revenue, data or profits, arising out of or in connection with this agreement or the use, inability to use or performance of products sold hereunder, even if advised of the possibility of such damages, whether in contract, tort, including negligence, or otherwise. ESS’s TOTAL CUMULATIVE LIABILITY FOR ALL DAMAGES FOR ANY CLAIM WHICH RELATES TO A SPECIFIC PRODUCT SHALL BE LIMITED TO THE AMOUNT PAID BY BUYER FOR SUCH PRODUCT GIVING RISE TO THE CLAIM.
One Year Limitation. In consideration of the pricing extended by ESS for the Products, Buyer agrees that any claim, demand or cause of action against ESS must be asserted and filed within one (1) year after Buyer’s receipt of Products, and thereafter all claims, demands, and causes of action are forever barred, waived, and released.
Export/International Sales ESS complies with export control laws in the U.S. including registration of those Products regulated by the International Traffic In Arms Regulations “ITAR”; compliance with the Export Administration Regulations “EAR” by exporting Products classified as ECCN A 1005 either by obtaining an export license or exporting to countries included in the GBS License Exception; and compliance with the Office of Foreign Assets Control “OFAC” by not exporting to prohibited individuals, organizations and countries. This includes sales to foreign nationals of prohibited countries, even if they are in the United States at the time of purchase.
All Products are subject to the customs and export control laws and regulations of the U.S. and may also be subject to the customs, import and export control laws and regulations of the country in which the Products are purchased, received or used. Buyer agrees to abide by those laws and regulations, including any requirement to obtain licenses or other government authorizations. Buyer represents and warrants that Buyer is solely responsible for obtaining any necessary licenses or other authorizations relating to Buyer’s import or use of the Products.
Products may not be exported, re-exported, sold, or otherwise transferred to restricted users including those on the U.S. Department of Commerce Bureau of Industry and Security “Entity List”; the U.S. Department of the Treasury, OFAC “Specifically Designated” National’s List, and other U.S. Government lists of denied parties. Buyer represents and warrants that Buyer is not on any such list. Furthermore, the Products may not be exported, re-exported, sold, transferred, or used in countries subject to U.S. export embargo and Buyer represents and warrants that Buyer is not located in such country and shall not transfer or use Products in such country.
Buyer Indemnification. Buyer agrees to indemnify and defend ESS, its subsidiaries, affiliates, and the directors, officers, employees, representative and agents of each of them harmless from and against any and all claims, demands, costs, and liabilities (including all reasonable legal and attorney fees and expenses) arising directly or indirectly out of a breach of its representation and warranties; breach of its use and care of the Product as stated in Manufacturer’s specifications; any act or omission in violation of the Manufacturer’s Limited Warranty; breach of U.S. and other applicable jurisdiction’s’ laws and regulations, including applicable import and export laws and regulations; and breach in use of the Product other than for personal use, including any reselling the Product.
Force Majeure. The term “Force Majeure” as used in this section means an event beyond the control and without the fault or negligence of the Buyer, ESS, or its sub-contractors or suppliers hereunder, including acts of God, acts of government, fire, flood or storm damage, strikes and national labor disputes, earthquakes, war and riot.
Neither party shall be responsible for delay in performing any obligation under this Agreement (other than an obligation as to payment of money) within the time-limit required for such performance, due to Force Majeure.
Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
No Third Party Rights. Other than as provided for in Manufacturer’s Limited Warranty, nothing provided herein is intended nor shall be construed to create or extend any rights or remedies to entities or individuals who are not parties to this Agreement.
Attorneys’ Fees. In the event any arbitration proceeding or lawsuit is commenced in connection with or arising out of this Agreement, the prevailing party in such proceeding shall receive its costs, expert witness fees and reasonable attorney fees.
Arbitration. In the event of any dispute, claim, demand, question or disagreement arising from or relating to this Agreement or the breach thereof, the parties shall use their best efforts to settle the dispute, claim, question or disagreement. If they do not reach a settlement within a period of thirty (30) days following notice of such dispute by one party to the other, then, upon written notice by either party to the other, all disputes, demands, claims, questions or differences shall be finally decided by arbitration by the American Arbitration Association in accordance with its Commercial Arbitration Rules at a venue located in Denver, Colorado. The language of the arbitration proceedings shall be English. The award shall be final and binding on the parties and judgment on any arbitration award may be confirmed and entered in any court with jurisdiction.
Governing Law. This Agreement shall be interpreted, construed and governed by the laws of the State of Colorado. The parties mutually acknowledge and agree that they shall not raise in connection therewith, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of jurisdiction in any proceeding or lawsuit brought in accordance with the terms and conditions stated herein. If a third party files a claim or lawsuit against ESS or Buyer or both, nothing herein shall preclude ESS and Buyer from asserting claims and defenses against the third party or against each other in the jurisdiction where such claim or lawsuit has been filed.
Entire Agreement. This Agreement, including the Limited Warranty and Purchase Order referenced herein, are hereby incorporated herein by reference, and constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.