Last Updated: 06/19/2012
2.1 “AGC” means The Associated General Contractors of America.
2.2 “Product” means Content and Software on the Website and any portion thereof, which is accessible on the Website.
2.3 “Content” means all indexes, Drawings (including, but not limited to drawings of works (plans) in the public domain, and derivative works therefrom), text (including, but not limited to, typed text of specifications in the public domain and derivative works therefrom), graphics, photographs, animations, scripts, icons, audio, data, project location, project details, bid date and bidders, and all other non-Software components of the Product.
2.4 “Use” means access to and use of the Product, and to reproduce copies, display or perform all or any portion of the Product.
2.5 “Software” means all computer code (both source and object), applets, interfaces, commands, syntax and expressions of ideas that operate, cause, create, direct, manipulate, access or otherwise affect the Content in the Product, whether created by CST or licensed from third parties.
2.6 “Website” means the website and all subsequent pages located at http://www.iSqFt.com or another uniform resource locator that CST might designate.
2.7 “Drawings” means any plans, blueprints, drawings, documentation, specifications, and related design information.
2.8 “Owner” means the person or legal entity which holds legal title and rights to the Drawings.
3. License and Permitted Use
3.1 Notwithstanding the protectability of the Product under any law, or lack thereof, access to and Use of the Product shall be governed exclusively by this Agreement.
3.2 The Product is comprised of original works of authorship, (including, but not limited to, derivative works based on graphical scans or image files of public domain plans and materials) that are both proprietary and intellectual properties of CST or its suppliers and are protected by both this Agreement as well as domestic and foreign contractual and intellectual property laws including but not limited to copyright, trademark, patent and trade secret laws.
3.3 To the extent that User receives Software from CST, such Software is deemed part of the Product.
3.4 License. CST hereby grants User a non-exclusive, revocable and non-transferable right to use the Product. This license shall terminate upon the termination of this Agreement.
3.5 Prohibited Uses. User may not: (i) decompile, reverse engineer, disassemble, or create derivative works from the Product; (ii) remove or obscure any proprietary notices including, but not limited to, any and all copyright, trademark, and patent designations contained in the Product; (iii) upload, post, email, transmit, publish, re-publish, distribute, or otherwise make available the Product to any third parties not expressly authorized in this Agreement; (iv) use the Product for the exploitation, rental, lease, sale or resale of the Product; (v) assign, rent, lend, lease, sell, sublicense, transfer, export from the United States, copy, reproduce, modify, adapt, translate, or extract components of the Product; (vi) attempt to interrupt, or overwhelm, the operation of the Product; or (vii) use the Product or permit the Product to be used in any manner that is competitive with CST’s Product. Notwithstanding anything set forth in this Section 3.5, the prohibited uses set forth in Section 3.5 do not supersede the rights a User may have pursuant to other written contracts with CST.
3.6 The Product may include technological protection measures that effectively control access, reproduction or distribution of the Product. Any attempt to tamper or dismantle these protections is a breach of this Agreement and may be a violation of the Digital Millennium Copyright Act of 1998, and will subject the violator to civil and criminal penalties.
5. User Representations and Warranties
5.1 User represents, warrants and covenants that: (i) User will Use the Product in accordance with this Agreement; (ii) the information that User has provided to CST is true and accurate; (iii) User will not Use the Product to infringe, misappropriate or violate the rights of CST or third parties; (iv) User will not knowingly or otherwise introduce to or through the Product any viruses or other items of a destructive nature; and (v) User will comply at all times with this Agreement, including any modifications to this Agreement in accordance with this Agreement.
5.2 By using the Website, User agrees that User is establishing a business relationship as per the Telephone Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005 with other users of the Website. User covenants and warrants that it has an Established Business Relationship (EBR), as per the Telephone Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005, with any non-user of the Product which the User contacts using the Product or other services provided by CST.
6. Ownership and Confidentiality
6.1 Proprietary Rights. Title and ownership rights to the Product (including associated report formats, screen displays, and menu features, and all derivative works) including copyrights, mask work rights, patents, trademarks, trade secrets, and other intellectual property rights, as well as all copies and versions thereof reside and shall remain in CST and/or its licensors. All copies of all or any portion of the Product made by the User shall bear the proprietary markings (be they patent, copyright or trade secret) of CST and its licensors borne by the copies transmitted by CST to User and in the same form and location as the original. At the request of CST, upon the earlier of the termination of this Agreement or the completion of the bidding process if the User is not selected to perform services on the project, User shall destroy all Content together with all copies (including electronic files containing the Content), modifications, and merged portions in any form.
6.2 Confidential Information. As used in this Agreement, “Confidential Information” shall mean the information of CST or any other user of the Product and/or their subsidiaries or affiliates, in whatever form, furnished or disclosed to User or its representatives in connection with this Agreement (including information disclosed before the date of this Agreement), including, without limitation, (a) technical information, such as ideas, research, inventions, data, specifications, formulae, photographs, technical reports, products, formulations, processes, plans, and other materials and information derived therefrom, which relate to the Product, including all associated documentation, under this Agreement; (b) business information, such as pricing information, strategic plans, contracts, contract drafts, marketing plans, supply chain data, customer information, financial information and other technical or business information of the disclosing party; and (c) all information and documentation resulting from or generated in connection with this Agreement.
6.3 Protection of Confidential Information. Any User receiving Confidential Information, agrees to: (a) Take all reasonable steps to maintain and safeguard Confidential Information against unauthorized disclosure; (b) Maintain Confidential Information in confidence and to not disclose it to any person not having a need to know consistent with the purposes of this Agreement; (c) Use Confidential Information only for the purposes contemplated by this Agreement; (d) Not copy, reverse engineer, or otherwise reproduce Confidential Information or any portion thereof for any reason whatsoever; (e) Not disclose or otherwise make Confidential Information available to third parties; (f) Take all reasonable measures to ensure that the User’s employees and representatives comply with the confidentiality provisions of this Agreement; (g) Notify the other party promptly of any unauthorized possession, disclosure, or use of Confidential Information or any violation of the provisions of this Agreement; and (h) Immediately notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and to cooperate in any reasonable way to help the other party regain possession of the Confidential Information and to prevent any further unauthorized use or disclosure.
6.4 Confidential Information shall not be deemed to include: (i) information already known to the User at the time the information is transmitted or becomes known by the User independently of the disclosing party through no wrongful act of the User or other party; (ii) information explicitly approved for general release to the public by the disclosing party; (iii) information disclosed to the public in a product marketed by the disclosing party; or (iv) information already known or available to the general public or which becomes known or available to the general public through no wrongful act on the part of the User.
6.5 User’s obligations under this Section 6 shall survive termination of this Agreement. User acknowledges that a breach of its obligations under this Section 6 will cause irreparable harm to CST and/or its licensors for which monetary damages would be inadequate. CST and/or its licensors will be entitled to injunctive relief for any such breaches, threatened or actual.
7. User Responsibilities
7.1 User is responsible for determining that all information received through the Product is accurate and that any and all authorizations have been obtained from the design professional or the owner of the Content.
7.2 User is responsible for (a) acquiring, installing, and maintaining computer equipment and computer software programs at its premises compatible with and as necessary to use the Product, (b) obtaining access to the Internet, and (c) downloading from Website and installing any necessary plug-ins. All fees associated with these items are the responsibility of the User.
7.3 User shall, at its own expense, use the Product in a careful and proper manner and shall comply with and conform to all federal, state and local laws, ordinances and regulations in any way relating to the possession, use and/or maintenance of the Product, including but not limited to the applicable standards of data privacy, international communications, consumer transactions, the Telephone Consumer Protection Act of 1991, the Junk Fax Prevention Act of 2005, the CAN-SPAM Act, and communications decency. Use of the Product is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation of this Section.
7.4 User acknowledges that, under certain circumstances, CST may transfer files or Content outside of the United States for processing.
8. Registration and Security
8.1 As part of the registration process, the User may be asked to select a password and username. User agrees to provide CST with certain registration information, all of which must be accurate and updated as appropriate.
8.2 User may not (i) select or use a username of another person with the intent to impersonate that person, (ii) use a username in which another person has rights; or (iii) use a username that CST, in its sole discretion, deems offensive. Failure to comply with the foregoing shall constitute a breach of this Agreement, which may result in immediate termination of this Agreement.
8.3 User shall be responsible for maintaining the confidentiality of User’s password. User shall immediately notify CST of any known or suspected unauthorized use(s) of User’s username or any known or suspected breach of security, including loss, theft or unauthorized disclosure of User’s password or username.
8.4 User is responsible for all usage or activity associated with User’s username, including, but not limited to, any unauthorized Use of User’s username by any third party. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of this Agreement, at CST’s sole discretion, and CST may refer User to appropriate law enforcement authorities.
9.1 CST warrants that the Product has the functionality described in the current published specifications for the Product. As CST’s sole responsibility and User’s exclusive remedy, in the event of any material failure to meet such standards, CST shall make all reasonable efforts to remedy any such failure.
9.2 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PRODUCT, INCLUDING ALL CONTENT, SOFTWARE AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF, IS DISTRIBUTED ON AN “AS IS” BASIS. OTHER THAN THE WARRANTY IN SECTION 9.1, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT; (A) THAT THE FUNCTIONS CONTAINED IN THE PRODUCT SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (B) THAT THE PRODUCT WILL MEET USER’S REQUIREMENTS, (C) THAT THE PRODUCT DEFECTS SHALL BE CORRECTED, (D) THAT THE PRODUCT SHALL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY OR (E) THAT THE PRODUCT, INCLUDING FORUMS, MESSAGE BOARDS OR THE SERVERS ON WHICH THE PRODUCT IS OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, THE UNIFORM COMMERCIAL CODE AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT SHALL NOT APPLY TO THIS AGREEMENT.
9.3 NEITHER CST NOR ANY THIRD PARTY LICENSORS MAKE ANY GUARANTEES OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF, OR RESULTS TO BE OBTAINED FROM USING THE PRODUCT.
10. Indemnities and Limitation on Liabilities
10.1 User shall indemnify and hold CST its officers, directors, members, employees, representatives, affiliates, agents, partners and the like harmless from any claims, liabilities or other damages (including reasonable attorneys fees) resulting from User’s use of the Website, Content or Product including but not limited to User Representations and Warranties of Section 5, or the use of the Product by anyone authorized by User to access the Product or for actual or alleged infringement of intellectual property rights by reason of the posting of any information or Content to the Product or User’s use of the Product beyond the scope of this Agreement, including, without limitation, any unauthorized use of the Drawings.
10.2 USE OF THE PRODUCT IS AT USER’S SOLE RISK. USER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USE AND/OR DOWNLOADING THE PRODUCT, ACCESSED THROUGH OR OBTAINED BY MEANS OF CST’S WEBSITE. CST AND ITS AFFILIATES, PARTNERS, AGENTS, LICENSORS, AND ANY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES FOR CST SHALL NOT BE LIABLE TO USER OR ANYONE ELSE FOR ANY DAMAGES INCLUDING, BUT NOT LIMITED TO, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, ATTORNEY’S FEES, DAMAGES FOR LOSS OF PROFITS, GOODWILL OR OTHER INTANGIBLE LOSSES OR SIMILAR DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER IN THESE SITUATIONS.
10.3 iSqFt® is an AGC of America Preferred Provider. Every transaction is, however, an arms-length agreement exclusively between iSqFt® and the AGC member firms. Neither AGC of America nor its chapters assume any liability for the quality or performance of iSqFt® or the services. The AGC member must look exclusively to iSqFt® for all sales and service, including but not limited to delivery, credit, guarantees, warranties and performance.
10.4 The Content may include facts, views, opinions and recommendations of third parties. CST does not guarantee the accuracy, reliability, completeness or timeliness of, or otherwise endorse these views, opinions, or recommendations. User acknowledges that any reliance upon any such Content, whether facts, opinion, advice, statement, memorandum or information shall be at their own risk.
10.6 CST shall not be responsible for delays or service interruptions attributable to causes beyond its reasonable control, including limitations on the availability of telephone transmission lines and facilities, failures of other communications equipment, Internet access delays or failures, failures or deficiencies of User’s equipment, or User’s failure to meet its responsibilities under this Agreement.
10.7 For Fee-based Subscription Users, under no circumstances shall the total cumulative liability of CST, its affiliates, partners, agents, and licensors for all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from use of the Product exceed the amounts paid by User to CST under this Agreement and applicable Terms of Sale Agreement during the 12 months immediately preceding the claim.
10.8 For Non Fee-based Subscription Users, under no circumstances shall the total cumulative liability of CST, its affiliates, partners agents, and licensors for all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from use of the Product exceed the minimum allowable by law and in no event shall it exceed one dollar ($1.00).
10.9 CST AND ITS AFFILIATES, PARTNERS, AGENTS, LICENSORS, AND ANY PROVIDER OF TELECOMMUNICATIONS OR NETWORK SERVICES FOR CST SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE WEBSITE OR PRODUCT OR BY DELAYS IN OR INTERRUPTIONS OF ACCESS TO THE PRODUCT.
10.10 Drawings may be copies of originals held by the Owner. In any instance where conflicting information is found between the Drawings and the originals, the original drawings will control. The presence of project information and/or documents through the Product in no way obligates the Owner to provide additional or updated bidding documents released as addenda to CST.
10.11 CST assumes no responsibility for the reproduction, distribution, or use of any Drawings other than in accordance with the terms and conditions of this Agreement. Unless the User obtains the prior consent of the Owner of any Drawings, User shall be liable to the Owner of any Drawings in the event that User reproduces, uses or distributes the Drawings in any way inconsistent with this Agreement.
11. User’s Conduct and Suggestions
11.1 The Product may contain communication services such as bulletin boards, chat rooms, news groups, communities, personal web pages, group calendars, electronic mail postings, and other public forums. User agrees to post messages only if they are relevant to the intended subject matter of the forum.
11.2 User agrees that it will not: (i) post messages that are inappropriate, unlawful, threatening, obscene, vulgar, pornographic, profane, indecent, defamatory, libelous, abusive, or a violation of the legal rights (including, without limitation, privacy and publicity rights) of others (users may report potential indiscretions by notifying CST); (ii) violate the copyright, trademark, or other intellectual property rights of any other person or entity; (iii) upload any files containing viruses, corrupted files, or any other component that may be harmful to the operation of another’s computer; (iv) upload any files or Content that is subject to the export control laws of the United States; (v) improperly assume or claim the identity, characteristics, or qualifications of another person; (vi) conduct or forward surveys, contests, pyramid schemes, or chain letters; (vii) harvest or otherwise collect information about others, including, without limitation e-mail addresses, without their consent; (viii) attempt to gain access to any portion of the Product, any computer, server, account, network, software, or hardware associated with the Product, from which User is restricted; or (ix) violate any applicable laws or regulations.
11.3 CST is not obligated to monitor the communications contained on the Product. However, CST may, at its sole discretion edit, decline to post, or remove any information or materials or any portion thereof.
11.4 User grants permission to CST to make available User’s business entity contact information, including facsimile number, to other users through the Product.
11.5 CST is pleased to hear from you. Anything you disclose or offer to CST by or through the Product, including postal mail, e-mails to CST or postings on interactive portions of the Product (“Communications”), shall be deemed and shall remain the property of CST. If you send CST such Communications, you are providing it to CST on a NON-CONFIDENTIAL BASIS, and CST will have no obligation to keep such information secret, to refrain from using such information, or to compensate you for the receipt or use of such Communications. CST is free to use, for any purpose whatsoever, any Communications, including but not limited to publishing, or developing, manufacturing, and marketing products using such Communications. By submitting Communications to CST, through e-mail, or through any other means, you hereby RELEASE CST from any liability under any legal theory in connection with the use, modification, sale, or disclosure of any Communications. By uploading or otherwise providing any Communications to CST, you hereby grant CST, to the extent you retain any rights, the unlimited, perpetual right to reuse, redistribute, modify and create derivative works from such Communications for any purpose and in any media without compensation, and you warrant that all “moral rights” in such Communications have been waived.
12. Trademarks and Copyrights – Notice and Procedure for Making Claims of Copyright Infringement
12.1 Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to CST’s Designated Agent.
12.2 PROCEDURE FOR COPYRIGHT INFRINGEMENT CLAIMS. In accordance with the Digital Millennium Copyright Act (DMCA), CST has designated an agent to receive notice of unauthorized online use of copyrighted materials.
12.3 If you believe that your copyrighted work is being infringed, please notify CST’s copyright agent at the address specified below.
E-mail may be sent to: email@example.com
Mail may be sent to:
Construction Software Technologies, Inc.
Attn: Copyright Agent
4500 Lake Forest Drive Suite 502
Blue Ash, Ohio 45242
12.4 Please notify CST in writing and include all of the following: (i) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (ii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit CST to locate the material; (iii) information reasonably sufficient to permit CST to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (iv) a statement that the complaining party has 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; (v) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (vi) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
12.5 All trademarks and trade names are the property of their respective owners. Except as otherwise noted, CST is the owner of all trademarks and service marks on the Product, whether registered or not.
13.1 To this Agreement. CST has the right to modify this Agreement and any policies affecting the Product. Any modification is effective immediately upon posting to the Website or distribution via electronic mail or conventional mail. User’s continued Use of the Product following any modification(s) to this Agreement shall be conclusively deemed an acceptance of all such modification(s). User’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of CST in providing the Product, including but not limited to: (1) any change in the Content; or (2) any change in the amount or type of fees associated with the Product is to terminate Use of the Product in accordance with the provisions of this Agreement.
13.2 To the Product. CST has the right to modify, suspend or discontinue the Product or any portion thereof at any time, including the availability of any area of the Product. CST may also impose limits on certain features and services or restrict User’s access to parts or all of the Product without notice or liability.
14. Term and Termination
14.1 This Agreement shall continue until terminated by CST or until User notifies CST in writing, either via mail, e-mail or fax, of User’s decision to terminate this Agreement and User’s access to the Product.
14.2 IF ANY OF THESE RULES OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO USER, USER MAY TERMINATE USER’S ACCESS TO THE PRODUCT AND TERMINATE THIS AGREEMENT IN WRITING EITHER VIA E-MAIL, FACSIMILE OR REGULAR MAIL. USER’S CONTINUED USE OF THE PRODUCT NOW, OR FOLLOWING THE POSTING OF NOTICE OF ANY CHANGES IN THIS AGREEMENT, SHALL INDICATE ACCEPTANCE BY USER OF SUCH RULES, CHANGES OR MODIFICATIONS.
14.3 User understands and agrees that termination of this Agreement and access to the Product is User’s sole right and remedy with respect to any dispute with CST. This includes, but is not limited to, any dispute related to, or arising out of: (i) any term of this Agreement or CST’s enforcement or application of this Agreement; (ii) any policy or practice of CST, including enforcement or application of these policies; (iii) the Content available through CST or any changes in Content provided through the Product; and (iv) User’s ability to access and/or Use the Product.
15.1 Assignment. User may not assign or otherwise transfer this Agreement or any rights or obligations under this Agreement to any third party without the prior written consent of CST; such consent shall not be unreasonably withheld. Subject to the restriction on transfer set forth in this Section 15.1, this Agreement shall be binding upon and shall inure to the benefit of the parties’ successors and assigns.
15.2 Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
15.5 Government Rights. If used or acquired by the United States Government, the Government acknowledges that (a) Product constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-3, as applicable and (b) the Government’s rights are limited to those specifically granted pursuant to this Agreement. The manufacturer is Construction Software Technologies, Inc., located at 4500 Lake Forest Drive, Suite 502, Cincinnati, Ohio 45242.
15.6 Provisions Severable. The provisions of this Agreement are severable. If any provision is held to be invalid, unenforceable, or void, the remaining provisions shall not as a result be invalidated.
15.7 Export Control Laws. The Product may contain technology that is subject to export controls. User agrees not to transfer or export such Product from the United States.
15.8 Notice. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if by mail, five (5) days after deposit in the United States mail system, postage prepaid, certified mail, return receipt requested; (iii) if by facsimile transmission, upon electronic confirmation thereof, or (iv) if by next day delivery service, upon such delivery.
15.9 Force Majeure. If the performance of any part of this Agreement by the parties is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, terrorism, earthquake, fire, judicial or government action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes; provided, however, that if such period of force majeure last more than thirty (30) days, then the other party hereto may terminate this Agreement.
15.10 Headings. The section headings used herein are for reference and convenience only and shall not enter into the interpretation hereof.
15.11 Independent Contractor. No party shall have the power to bind the other party, nor shall any party make any such representation to third parties. The parties’ relation to the other shall be that of an independent contractor solely responsible for the manner and means by which the duties hereunder are carried out. No party shall be construed for any purpose to be an employee subject to the control and direction of the other party.
15.12 Entire Agreement. This Agreement and any attachments to it constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between the parties, whether written or oral, relating to the same subject matter.