Unifonic General Terms and Conditions

Background

1. The Company is predominately in the business of providing cloud communication services.
   
   
2. The Customer wishes to use the Services across the Unifonic Platforms to engage with End Users in the Territory and accepts this Agreement. 
   
   
3. The Company has agreed to provide, and the Customer has agreed to use, the Services in accordance with the terms and conditions of this Agreement. 
   

1. Definitions 

1.1 The following words and terms shall have the meanings assigned thereto unless the context requires otherwise. 

“Affiliates" means, in relation to any company (“relevant company”):

1. any entity Controlled by the relevant company;
2. any entity Controlling the relevant company; and
3. any entity Controlled by any entity Controlling the relevant company.

"Agreement" means these terms and conditions, the Order Form and any Service Specific Terms.

“API” means applicable programming interface.

“Applicable Law”: means all national, federal, provincial, local and municipal legislation, regulations, statutes, by-laws, decrees, orders, circulations, royal and determinations and/or other laws of any relevant governmental authority and any other instrument, having the force of law as may be issued and in force from time to time relating to the Services, in the jurisdiction where the Services are being provided or any licenses that the Service is subject to.

“Authorised Users” means the employees, directors, agents, consultants, or representative of the Customer that will manage the engagement and use of the Services on behalf of the Customer through the Unifonic Platform. 

“Confidential Information”: has the meaning ascribed to it in Article 7 of this Agreement.

“Control”: in relation to a company means:

1. the ability to directly or indirectly control the composition of the company’s board;
   
   
2. the ability to exercise or control the exercise of the rights to vote in respect of more than 50% of the voting shares or other form of voting equity in the company;
   
   
3. the ability to dispose or exercise control over the disposal of more than 50% of the shares or other form of equity in the company; or
   
   
4. the ability to utilise any other means, direct or indirect, of dominating the decision making and financial and operating policies of the company.

“Data Security Policy” means the data security policy as made available on the Unifonic Platform. 

“Electronic Address” means electronic contact address, such as email, mobile number, or landline number.

“Electronic Message” means a self-contained piece of digital communication that is designed, intended to be or actually transmitted between physical devices, including those sent via telecommunication networks to an electronic address, such as email, voice, SMS, MMS, Flash SMS, fax.

“End User(s)” means the party who receives or is intended to receive an Electronic Message as a result of the Customer’s use of the Services or the party who initiates a conversation with the Customer through the Services. 

“Fee” or “Fees” means the fees as outlined in the applicable Order Form and Service Specific Terms.

“Force Majeure Event”: means the occurrence of any events or circumstances which are beyond the reasonable control of a Party and which could not have been prevented by the exercise of reasonable care and skill of a Party, including but not limited to:

1. any act of state or exercise of sovereign, judicial or executive prerogative by any government or public authority, including expropriation, nationalization or compulsory acquisition or acts claimed to be justified by the executive;
   
   
2. any act of God such as natural disaster, unusual or extreme weather conditions, including earthquake, lightening, floods, fire, hurricane, typhoon, tidal wave, storm, volcanic eruption, chemical or radioactive contamination; 
   
   
3. infectious diseases, pandemic or epidemic; 
   
   
4. nonperformance by a third party or any similar cause beyond the reasonable control of the party responsible for delivering such obligation; and
   
   
5. any act of war, armed hostilities, invasion, armed conflict, revolution, civil commotion, terrorism or the threat of terrorism.
   
   
   

“Heightened Cybersecurity Requirements” means any laws, regulations, codes, guidance, from regulatory and advisory bodies, whether mandatory or not, international or national standards, which are applicable to the Customer or the Company relating to security of network and information systems, security breach and incident reporting requirements.

“Implied Terms” has the meaning given to it in clause 3(3)(ii) of this Agreement.

“Intellectual Property Rights” means any and all intellectual and industrial property rights throughout the world, including but not limited to all rights comprised in any copyright, moral rights, patent, design, trademark, circuit layout whether at common law or conferred by statute, whether or not now existing, and whether registered or registrable, and including any rights to apply for registration, and rights to protect trade secrets, know-how, goodwill or confidential information for the full period of such rights and any renewals or extensions of those rights.

“Notice” means any notice, demand, consent, or other written instrument to be given or received under this Agreement in writing in accordance with clause 10 of this Agreement.

“Operator” means any third party authorized to provide public telecommunication services or operate a telecommunications network that is used by the Company to provide the Services.

“Order Form”  means an order form between the Customer and the Company that specifies mutually agreed upon commercial provisions including but not limited to the Fees.

“Pricing Change Notice Period” has the meaning as prescribed under clause 4 (4) of this Agreement. 

“Regulatory Authority” means the governing body or third-party that has jurisdiction over any of the Applicable Laws.

“Regulatory Policies” means the regulations, policies, Data Security Policy, Terms of Use, Privacy Policy and terms that apply to the use of the Services that will be made available to the Customer and may be subject to change from time to time.

“Services” means the products and services provided by the Company or its Affiliates, as applicable, that (a) the Customer uses, including, without limitation, products and services that are on a trial basis or otherwise free of charge; or (b) the Customer orders under an Order Form. 

“SLA” means the service level agreement that applies to the relevant Services as provided to the Customer as part of or in conjunction with any Order Form from time to time. 

“Service Specific Terms” means the Company service specific terms that detail the rules and special conditions for that particular Service located at the following links

• SMS Service Specific Terms
  • https://unifonic.com/en/legal/sms-terms
    
• Flowstudio Service Specific Terms
  • www.unifonic.com/en/legal/flowstudio-service-specific-terms
• Voice Service Specifc Terms
  
  • https://www.unifonic.com/en/legal/voice-service-specific-terms
• Chatbot Service Specific Terms
  • www.unifonic.com/en/legal/chatbot-service-specific-terms
• Conversation API Service Specific Terms 
  
  • www.unifonic.com/en/legal/conversation-api-service-specific-terms

“Term” means the term length of the Service as specified in the applicable Order Form.

“Terms of Use” means terms of use that apply to the use of the Services that may be subject to change from time to time. Such terms may include those established and maintained by Third Party Providers.

“Third Party Provider” means any person authorized to provide cloud computing services, telecommunication services, or other services locally or internationally, that are used in part or in whole for providing the Services, which may include Operators or Facebook.

“Territory” means the territory as set out in the Order Form. 

“Unifonic Account” has the meaning ascribed to it in Article 3 (1) of this Agreement. 

“Unifonic Console” means the Company’s integrated electronic interface, electronic portal or cloud platforms made available to the Customer from time to time, and through which the Customer can submit information required for the use of the Services, adjust the settings of communication, respond to End Users, and use other features of the Services.

“Unifonic Platform” means any of the Company’s integrated electronic interfaces, electronic portals or cloud platforms including but not limited to the Unifonic Console and any other the Company interfaces not related to the Services that may be made available to the Customer.

“Unifonic Privacy Policy” means the privacy policy and data security/retention provisions that are applicable for the Services, the current version of which can be accessed via unifonic.com.

“Virus” means malicious software or device which may:

1. prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; 
2. prevent, impair or otherwise adversely affect access to the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
3. adversely affect the user experience.

“Vulnerability” means a weakness in the computational logic found in software and hardware components that when exploited, results in a negative impact on its confidentiality, integrity, or availability.

2. General

1. Headings, subheadings, and titles are for convenience only and do not affect the interpretation of this Agreement. 
2. The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
3. The Parties agree that the date adopted for the implementation of this Agreement is the Gregorian date as determined in the Order Form and any reference to “month”, “year”, and “yearly” and any other references in time shall be construed by reference to the gregorian calendar.

3. Provision of Services

1. Unifonic Account.  The Customer will be asked to create an account to use the Services (“Unifonic Account”). In order to validly create a Unifonic Account, the Customer must:

1. ensure that the Unifonic Account creation is handled by an Authorized User and provide required details in order to meet any onboarding requirements; and
2. provide to the Company and assure that the Company always has true, current, and complete information regarding the Customer.

2. Service Specific Terms. The Customer agrees that by signing this Agreement, the Customer is bound by the Service Specific Terms for each requested Service. 

3. Provision of the Services.  

1. The company will:
   a) the Applicable Laws and this Agreement; 
   b) comply with the SLA (if any); and
   c) use commercially reasonable efforts to provide the Customer with applicable support for the Services as set out in the SLA and/or the Order Form.
2. To the full extent permitted by law, the Company excludes all warranties, terms, conditions, or undertakings not stated in this Agreement (“Implied Terms”), whether expressed or implied, in relation to the Services. 
3. The Customer acknowledges and agrees that the Company does not warrant that:
   a) the Customer’s use of the Services will be uninterrupted or error-free; 
   b) the Services will meet the Customer's requirements other than those set forth in an applicable Order form or SLA; 
   c) the Unifonic Platforms, the Unifonic Console and Services will be free from Vulnerabilities or Viruses; or
   d) the Unifonic Platforms, Unifonic Console and the Services will comply with any Heightened Cybersecurity Requirements
4. The Company reserves the right to make some or all of the Services unavailable from time to time as is required for upgrades, development, maintenance and updates upon providing a reasonable notice to that effect;
5. If the provision of the Services to the Customer is delayed or is inactive due to a damage in the devices, equipment or software of Unifonic or any Third-Party Provider, then Unifonic shall do its best to provide the Service as soon as possible. In such case, the Term shall be extended for a period equal to the period that the Service was unavailable, for the purpose of allowing the Customer to use any unused portion of the Service;
6. The Company is not responsible if the Third-Party Providers modify, improve or develop the components of their services at any time without any prior notice. In such case, Unifonic may amend, improve, develop or suspend the Services provided to the Customer;
7. The Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities; and/or 
8. The Company may provide any one or more of the Services through the Unifonic Console, and grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Unifonic Platform to access the Services.

4. Customer Responsibilities

The customer undertakes they it will: 

1. be solely responsible for all use of the Services under the Customer’s Unifonic Account and any use of its access to the Unifonic Platform;
2. be solely responsible for complying with all Applicable Laws and Regulatory Policies; 
3. not transfer, resell, lease, license, or otherwise make available the Services to any third party without the Company’s written consent; 
4. comply with all directions and provide reasonable cooperation regarding information requests issued by the Company, or any Regulatory Authority;
5. have all necessary licenses, approvals in order to utilise the Services in the Territory; 
6. be solely responsible for all acts, omissions, content and activities of the Customer and its Authorized Users; 
7. be solely responsible to the extent that any End User’s transmission of content to the Customer via the Services is compliant with the Applicable Laws, and the terms of this Agreement;
8. use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify the Company promptly of any such unauthorized access or use;
9. not access all or any part of the Services in order to reverse engineer, decompile, disassemble, modify, translate, or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques of the software or otherwise reduce to human-perceivable form in whole or in part, or any copyright, trademark or other proprietary rights notices contained in or on the Service;
10. not attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Unifonic Platforms in any form or media or by any means, except as explicitly permitted by the Company;
11. ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; 
12. has obtained all the necessary permissions or consents to deliver End User and/or Customer data to the Company for use and disclosure pursuant to this Agreement;
13. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications or electronic links from its systems to the Unifonic Platforms;
14. not attempt to obtain, or assist third parties in obtaining, access to the Services and/or the Unifonic Platform except as permitted by this Agreement;
15. not introduce or permit the introduction of, any Virus or Vulnerability into the Unifonic Platform or the Companys’ network and information systems; and 
16. not access all or any part of the Services in order to build a product or service which competes with any of the Unifonic products and services.

4. Fees and Payment Terms: 

1. Fees. The Customer agrees to pay the fees set forth in all applicable Order Form(s).

The Customer must not set off any liability of the Company or make any deductions against any liability of the Customer to the Company. If the Company is not able to make any deductions from the account for the Services and the Customer is a customer of other services provided by the Company, then the Company shall be entitled to make any such deductions from other accounts that the Customer may have via the Unifonic Platforms. 

2. Taxes and other charges: 
Taxes.  All Fees are exclusive of any applicable taxes. The Customer will pay all taxes associated with this Agreement and Order Form(s), excluding any taxes imposed on the Company’s net income, property, or employees. 

3. Payment Terms. The Customer agrees  to pay the Fees and taxes in accordance with the payment terms set out in the relevant Order Form(s). 

4. Pricing Update.The Company may update its prices and changes to such prices shall be Notified to the Customer fourteen (14) days in advance (“Pricing Change Notice Period”).
4.1 Within the Pricing Change Notice Period, the Customer will either:
4.1.1 continue using the Services based on the new pricing; or
4.1.2 notify the Company of its intention to terminate the Order Form(s) in which case termination shall take effect at the end of the Pricing Change Notice Period.

The provision of this Article 4 shall be applicable unless otherwise provided under the Order Form.

5. Intellectual Property

1. Intellectual Property Rights. The Customer agrees that the Company and/or its licensors own all Intellectual Property Rights in the Services and the Unifonic Platforms. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Services or the Unifonic Platforms.
2. The Customer shall indemnify the Company and its Affiliates against all liabilities, costs, expenses, damages and losses suffered or incurred by the Company and/or its Affiliates in connection with any claim for actual or alleged infringement of the Company’s Intellectual Property Rights by the Customer, its Affiliates or each of their Authorized Users.
2.1 The Company solely and exclusively owns and reserves all right, title, and interest, including without limitation, to the Intellectual Property Rights in and to the Services, the documentations, webpages, and all modifications, extensions, customizations, scripts, or other derivative works of the Services. 
2.2 Company Data. The Company owns and reserves all Intellectual Property Rights in and to any data that is derived from the use of the Services (“Unifonic Data”). The Company grants the Customer a worldwide, limited-term, non-exclusive, non-transferable, royalty-free license during the term of this Agreement to access and use Unifonic Data solely for the Customer’s use of the Services and in accordance with the Agreement.
2.3 Customer Data. The Customer exclusively owns and reserves all Intellectual Property Rights in and to the Customer data. The Customer grants the Company the right to process End User data as necessary to provide the Services in a manner consistent with the Applicable Laws, this Agreement, and the Company’s Privacy Policy.

6. Confidentiality

1. For the purpose of this Agreement, “Confidential Information” means any information disclosed by one Party (“Disclosing Party”) to the other (“Receiving Party”) that is marked as confidential or that should be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include any information which: 

1. is independently publicly available; 
2. was rightfully known by Receiving Party prior to disclosure; 
3. was lawfully disclosed to Receiving Party by another party not under any obligation or breach of confidentiality that is known of by the Receiving Party; or 
4. is independently developed by or for Receiving Party without use of or reference to the Confidential Information of Disclosing Party.

2. Unless agreed in writing. Receiving Party will not: 

1. use any Confidential Information for any purpose other than fulfilling Receiving Party’s rights and obligations under the Agreement; or 
2. disclose Confidential Information to any third party except for entities (e.g. Affiliates, contractors, legal counsel) (collectively, “Representatives”) who have a “need to know” in order for Receiving Party to fulfil its rights and obligations under this Agreement. Representatives will be bound to protect Confidential Information under the same terms of confidentiality as the Receiving Party, and Receiving Party will be responsible for any breach by Representatives of this obligation.

3. Receiving Party may disclose Confidential Information of Disclosing Party to the extent compelled by Applicable Law, court order, by any Regulatory Authority.

7. Indemnification

1. To the extent permitted by the Applicable Law, we will have no liability or obligation with respect to indemnification arising out of:

1. Any use of the Service that is in breach of this Agreement, the Terms of Use, any Regulatory Policies, or any Applicable Law;
2. The combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing.

2. We shall not be liable for direct and indirect losses and damages, whether in profits, costs, expenses, lawsuits, or violations arising from:

1. In the event that a telecommunication network or Third-Party Provider required to deliver the Services fails or due to a Force Majeure Event.  In any case, the Customer shall only have the right to recover the value of the Services for the period that they were not accessible;
2. Repair and maintenance work of the devices used by or for a reason attributable to the Customer;
3. Any breach of the Customer’s obligations under this Agreement, the Terms of use, and any other Regulatory Policies, or any other documents entered by the Customer.

3. Neither the Company nor any Third-Party Provider shall be responsible for any damages, losses, or obligations of any nature, whether towards the End User and/or the Customer resulting from the failure to use or inability to use the Services.

4. The Customer will indemnify the Company and its respective officers, directors and personnel (collectively, “Unifonic Indemnified Parties”) on written demand against all losses incurred or awarded against Unifonic Indemnified Parties in connection with any claim by an unaffiliated third party alleging or arising out of the Customer or any End Users (a) breach of this Agreement (Customer Responsibilities); (b) infringement or misappropriation of such third party’s intellectual property rights; or (c) violation of Applicable Laws (collectively, “Indemnifiable Claims”). 

8. Indemnification

1. In no event will either Party or its Affiliates have any Liability arising out of or related to this Agreement for any lost profits, revenues, goodwill, or indirect, special, incidental, consequential, or punitive damages, whether an action  is in contract, or tort.  
2. In no event will the aggregate liability of either Party together with all of its Affiliates arising out of this Agreement exceed the amounts paid by the Customer and the Customer’s Affiliates hereunder for the Services rendered in the 12 month period preceding the first incident out of which the liability arose.  The foregoing limitation will apply whether an action is in contract or tort.
3. The limitations in Clause 8.1 and Clause 8.2 do not apply to the Customer’s  breach of Clauses 4, 5, and 6.
4. If we suspend the Customer’s account due to the Customer’s actions or omissions pursuant to clause 4 (Fees and Payment Terms), we will have no liability for any damage, liabilities, losses, or any other consequences that the Customer may incur as a result. The Customer will remain responsible for the Fees (as defined below) during any suspension period as a result of the above. 

9. Term, Suspension, and Termination

1. Agreement Term. Once accepted, this Agreement shall remain in place until the expiry of any and all associated Order Form(s). The Customer shall not terminate this Agreement prior to the expiry of the Term, unless as stated in the Order Form.
2. Order Form(s) Term. Each Order Form will have a term, which begins upon the acceptance of such Order Form or upon any designated start date in that Order Form, and shall expire at the end of such term, unless the relevant Order Form(s) states that such Order Form will be automatically renewed for another specified period. 
3. Termination for Material Breach. Either party may terminate the affected Order Form(s) in the event of a material breach if, after providing written Notice of the breach, the other party does not rectify the breach within ten (10) business days. 
4. Termination for Insolvency. Either Party may terminate any Order Form(s) immediately by providing written Notice in the event of the other Party’s liquidation, commencement of dissolution proceedings, winding up, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
5. Termination of Prohibited Services. The Company may terminate the provision of any Service and associated Order Form(s) if the provision of such Services is determined to be prohibited by any Applicable Law or the terms of any Operator or Third Party Provider who is used in the deliverance of such Service. In such case, only those Fees associated with Services that have been utilized shall not be subject to refund.
6. Suspension of Services. Without limiting the Company’s other rights, the Company may immediately suspend the Service and the Customer’s access to the Unifonic Platforms if the Customer:

1. fails to pay any Fees, charges, dues or taxes due to the Company by the due date, and fails to pay such due amount within seven (7) days of being given Notice by the Company;
   
2. breaches any part of this Agreement, the Terms of Use, or the Regulatory Policies, in a manner that may cause serious loss or damage to the Company, and fails to rectify that breach within fourteen (14) days of being given Notice by the Company;
   
3. engages in any unlawful actions while using or accessing the Services or the Unifonic Platforms, in a way that may cause serious loss or damage to the Company;

1. The suspension or termination of this Agreement or any Services does not relieve the Customer of its obligations and liabilities incurred up to the suspension/termination date.  
2. Upon the effective date of suspension, termination or expiration of the Agreement or any Order Form: (a) all rights, licenses, and subscriptions granted to the Customer will immediately terminate; (b) the Customer will immediately either return or destroy (at the Company’s discretion) all Unifonic Data, the Company’s Confidential Information, and any user IDs that are in the Customer’s  possession; and (c) the Company will delete any of the Customer’s Confidential Information or Customer data as agreed pursuant to any applicable SLA or data retention policies. In the event of termination or expiration of an Order Form, (b) and (c) shall not apply to the extent the Unifonic Data, Confidential Information, user IDs, and the Customer data are still required in connection with the use of other Services than the terminated or expired Service(s).

10. Notices

1. The Customer expressly agrees that all communications between the Customer and the Company via electronic means shall be considered valid and enforceable. 
2. If the Customer needs to provide Notice to the Company under this Agreement, the Customer may do so in writing to legal@unifonic.com. 
3. The Company will send any Notices to the email address(s) the Customer designates in the Customer’s Unifonic Account or in the absence of such, an email address that the Customer has used with the Company. It is the Customer’s sole responsibility to notify the Company in event such email addresses have been changed. 

11. Notices

The Customer shall not novate, transfer or assign any rights or obligations under this Agreement in whole or in part without the prior written consent of the Company.

The Customer irrevocably agrees to any novation of this Agreement and any valid Order Forms to another Company entity for purposes of the Company’s intra-company corporate restructuring, in whole or in part, and as such, is effected by our delivering to the Customer a thirty (30) days prior Notice to that effect.

12. Waiver

No waiver of any right under this Agreement shall be deemed effective unless contained in writing signed by the Party charged with such waiver, and no waiver if any right arising from any breach or failure to perform shall be deemed to be a waiver of any future such right or any other right arising under this Agreement.

13. Severability

If any provision of this Agreement  is or becomes invalid, illegal or unenforceable, such provision shall be deemed amended to conform to applicable laws as to be valid and enforceable or, if such provision cannot be amended without materially altering the intention of the Parties, it shall be stricken and the remainder of this Agreement shall remain in full force.

14. Relationship between the Parties

The relationship between the Parties shall not be that of partners, agents or joint ventures of one another. Each Party, in performing any of its obligations hereunder, shall be an independent contractor and shall discharge its contractual obligations at its own risk. 

15. Changes in Conditions

The Company may, at any time, update the Agreement, Terms of Use, or the Regulatory Policies as may be required by Applicable Law, or requirements from Third Party Providers. If the Company makes material changes, it will notify the Customer, such as by posting an announcement on the Unifonic Platform, or sending the Customer an email. To the greatest extent permitted by Applicable Law, the new terms will take immediate effect, and the Customer’s continued use of the Services following the Company’s posting or notice of the changes will constitute the Customer’s acceptance of the updated provisions. If the Customer has a right under Applicable Law to terminate this Agreement upon receipt of such notice, the Customer acknowledges and agrees that any fees previously invoiced by the Customer are non-refundable and any fees owed from Services rendered pursuant to an applicable Order Form(s) continue to remain due and payable. 

16. Changes in Conditions

In the event of any conflict between the provisions of this Agreement or any provisions included in any Service Specific Terms, Terms of Use, Regulatory Policies, Order Form, or the SLA,  the following order of precedence shall apply:

1. 1. This Agreement;
   2. The Service Specific Terms;
   3. Terms of Use;
   4. The Regulatory Policies;
   5. The SLA;
   6. The Order Form

17. Governing Law and Dispute Resolution 

1. This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction of the Company entity that is providing the Service as designated in the applicable Order Form.
2. All disputes which may arise between the Parties in connection with this Agreement, shall first be settled amicably by the Parties. If both Parties fail to solve amicably, then dispute resolutions shall be subject to the competent courts of the jurisdiction where the Company entity that is providing the Service as designated in the applicable Order Form is located.

18. Whole agreement

This Agreement contains the whole agreement between the Parties relating to the subject matter of this Agreement and supersedes any previous written or oral agreement between the Parties or any of their Affiliates in relation to the matter dealt with in this Agreement.