Credential Resale Terms
These terms (the “Terms”) apply to your purchase of Credentials resold by View the Space, Inc. ( “VTS”) to you and/or your employer (“Client”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES.
BY USING THE SERVICES AND/OR CLICKING “AGREE”, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF AND TO BIND YOUR EMPLOYER TO THIS AGREEMENT
License Grant
Provision of Credentials.
Subject to payment of the applicable Fees, VTS will provide Client, through assignment to the applicable accounts of users of VTS’s Activate platform specified by Client (each a “User”), with the applicable number of licenses to use digital or virtual cards, account access devices, or other devices that may be provisioned (each a “Credential”) to an applicable Apple product that has been enabled to utilize Credentials (each an “Enabled Device,” most typically an iPhone). Credentials are provided by Apple, Inc. (including its affiliates, “Apple”) through HID Global Corporation (“Access Partner” and together with Apple the “Resellers”). Credential requirements are based on technical factors regarding Access Partner systems.
Reseller Terms.
Use of Credentials is at all times subject to the continued support and enablement of the credentials program by the Resellers (the “Program”), which is not guaranteed by VTS. Client, including each User, must comply with all applicable terms of each Reseller at all times, including those terms provided at https://www.hidglobal.com/legal/additional-product-specific-terms-apple-access-technology. The Resellers may change the terms of the Program at any time without notice to VTS, Client, or any User.
Restrictions on Use.
Client shall not, and shall use reasonable efforts to ensure that each User does not, (i) sell, resell, rent or lease Credentials or use Credentials in a service provider capacity; (ii) interfere with or disrupt the integrity or performance of the Program or VTS’s services; (iii) attempt to gain unauthorized access to Credentials or related systems or networks; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of Credentials or any related software; (v) knowingly utilize Credentials in a manner that exceeds the license parameters as purchased; (vi) use Credentials in violation of any Applicable Law or for any purpose other than for obtaining lawfully permitted access to areas through use of Access Partner’s systems; or (vii) introduce, post, or upload to platforms of VTS or a Reseller any Harmful Code (as defined below). As used in this Agreement, (1) “Applicable Law” means, with respect to any entity or person, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such entity or person, or any of its properties, assets, or business operations, and (2) “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of a service or a VTS website, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause a service to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operation of a service.
Payment
Fees.
Access and use of Credentials is subject to full payment of all applicable charges, including the fees described in the purchase order (the “Fees”) and applicable Taxes. All Fees are non-refundable.
Taxes.
All Fees are in addition to, and do not include, any federal, state, or local sales, use, withholding, VAT and other similar taxes (collectively, “Taxes”). Client is responsible for the payment of all applicable Taxes, without deduction or offset to the Fees due. Any applicable direct pay permits or valid tax-exempt certificates must be provided to VTS prior to the execution of any Order.
IP Rights
Intellectual Property.
Except as agreed in writing by the Resellers or VTS, no other rights or licenses to exploit (in whole or in part), in any manner, form or media, any of the technology or intellectual property rights of VTS or a Reseller are granted aside from the limited license to utilize Credentials described herein. Nothing contained in these Terms will be construed as constituting a transfer or an assignment to a party by the other party of any of the technology or intellectual property rights.
Reporting Data.
Client agrees to provide Apple (via Access Partner and VTS) the data and statistics identified in Exhibit A (Reporting; available at https://www.hidglobal.com/legal/additional-product-specific-terms-apple-access-technology) and in accordance with the Apple Access Guidelines as may be published by Apple from time to time. Apple may use the data and statistics provided by Client for purposes of (1) performing its obligations and exercising its rights under these Terms, or (2) improving its products or technology used internally by Apple in connection with Apple products.
Credential Data.
Client agrees that data relating to the use of Credentials in connection with Access Partner’s technology by Users (“Usage Data”) may be gathered by VTS through its Activate service, a subset of which may be displayed to entities that own, manage, or otherwise control buildings that utilize either of VTS’s Activate service or the services of Access Partner.
Representations and Warranties
Mutual Representations and Warranties.
Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to provide and utilize Credentials, as the case may be, subject to these Terms; (ii) the execution, delivery, and performance of any purchase order and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under these Terms shall comply with all Applicable Laws.
Client Representations and Warranties.
Client represents and warrants to VTS that it has all necessary rights, and has obtained all necessary consents, to provide VTS with relevant User information for the provisioning of Credentials.
Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE CREDENTIALS, VTS WEBSITES AND SERVICES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY VTS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND VTS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH ANY PURCHASE, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT VTS MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
Mutual Confidentiality
Definition of Confidential Information.
“Confidential Information” means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Protection of Confidential Information.
Recipient must use the same degree of care to protect the confidentiality of Discloser’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care). Recipient must not disclose or use any Confidential Information of Discloser for any purpose outside the scope of these Terms. Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with these Terms and who are bound by confidentiality obligations to Recipient no less restrictive than the confidentiality terms of these Terms. Recipient shall be responsible for the acts and omissions of all of its employees and contractors, and any breach of this Agreement by any of its employees and contractors shall be deemed a breach of these Terms by Recipient.
Exclusions.
Notwithstanding subsection (a) of this Section, Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by Recipient without use or access to the Confidential Information. Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with reasonable advance notice to seek a protective order to the extent allowed by law or court order. If such protective order or other remedy is not obtained or Discloser waives compliance with the provisions of this Section, Recipient may furnish only that portion of Discloser’s Confidential Information which it is advised by its counsel is legally required to be disclosed and will use commercially reasonable efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
Return/Destruction of Confidential Information.
Upon expiration or termination of the license to utilize Credentials, VTS may retain usage Data in a de-identified form indefinitely, provided that such Usage Data be maintained in a confidential manner for the duration of its retention.
Liability Limit
EXCEPT FOR LIABILITY ARISING IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, AND LOST PROFITS, REVENUE OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. VTS’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE GREATER OF EITHER $1000 OR THE AMOUNT PAID OR PAYABLE BY CLIENT WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
Exclusions.
Notwithstanding the foregoing, nothing in this Section 8 shall limit or exclude either party’s liability for any liability that cannot be limited or excluded by Applicable Law.Liability Limit
EXCEPT FOR LIABILITY ARISING IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, AND LOST PROFITS, REVENUE OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. VTS’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE GREATER OF EITHER $1000 OR THE AMOUNT PAID OR PAYABLE BY CLIENT WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
Exclusions.
Notwithstanding the foregoing, nothing in this Section 8 shall limit or exclude either party’s liability for any liability that cannot be limited or excluded by Applicable Law.
Indemnity
By VTS. VTS will indemnify, defend and hold Client harmless from and against any liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by Client in connection with any third-party action, claim, or proceeding (each, a “Claim”) to the extent that such Claim alleges that the provision of Credentials by VTS violates the rights of any third party. If such a Claim appears likely, then VTS may, at its expense, either procure the necessary rights for Client to use Credentials as provided in these terms or terminate the applicable Credentials and refund a pro-rata portion of the Fees for the terminated Credentials. Notwithstanding anything to the contrary herein, VTS has no obligation to indemnify, defend, or hold Client harmless in connection with any Claim arising from (1) Client’s or any User’s combination of Credentials with other technology, services, software or hardware where the infringement would not have occurred but for the combination; (2) any unauthorized modifications, alterations, or implementations to Credentials made by or on behalf of Client other than by VTS; (3) Client’s or its Users’ use of Credentials not in accordance with the documentation provided by VTS, the Resellers, or these terms; or (4) Client’s or its Users’ use of Credentials in a manner or for a purpose for which they were not designed.
By Client. Client will indemnify, defend, and hold VTS, its affiliates, its suppliers and hosting providers, and its and their respective officers, directors, members, managers, partners, employees, contractors or agents (“VTS Indemnified Parties”) harmless from and against any and all Losses incurred by any VTS Indemnified Party in connection with any Claim to the extent such Claim arises out of (i) Client’s breach of these terms or (ii) Client’s gross negligence or willful misconduct.
Procedure. The indemnified party shall promptly notify the indemnifying party in writing of any Claim for which the indemnifying party may have obligations under this Section; provided, however, that any failure of the indemnified party to provide prompt written notice pursuant to this Section shall excuse the indemnifying party only to the extent that it is prejudiced thereby. The indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s sole expense, with regard to the defense of any Claim. The indemnifying party shall have full control of any such Claim and the authority to settle or otherwise dispose of any suit or threatened suit. In no event, however, may the indemnifying party agree to any settlement of any Claim for which it has agreed to provide indemnification under this Agreement if such settlement would impose any liability or obligation upon the indemnified party, without the indemnified party’s prior, written consent.
Data Protection
Definitions and Interpretation
“Client Personal Data” means any Personal Data in respect of which Client is a data controller or the data processor of another entity that is processed by VTS as a data processor or subprocessor, respectively, in connection with its performance of the Services.
“Personal Data” means any data concerning applicable protected individuals (1) falling within the definition of “personal data” under Directive 95/46/EC of the European Parliament and of the Council or any replacement legislation, as applicable, including the General Data Protection Regulation 2016/679 (the “GDPR”) and the Member State implementations of the GDPR (collectively, “EU Data Protection Laws”); (2) the definition of “personal data” or “personal information” under the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 et seq.) as amended by the California Privacy Rights Act of 2020; or (3) any other such Applicable Law relating to the retention or use of personally identifiable information as may be in effect regarding the data of that individual (collectively with the EU Data Protection Laws the “Privacy Laws”).
Nature of the Processing
Subject Matter. The subject matter of Personal Data processing by VTS is the provision and use of Credentials for the purposes of building access.
Duration. VTS will process Personal Data during the Subscription Term and up to sixty (60) days after the expiration of the Subscription Term pursuant to Section 7(c) above.
Nature and Purpose. Processing is done to manage Client’s and Users’ use of Credentials.
Data Categories. VTS shall process Personal Data provided by Client in order to permission Credentials to particular Activate Users. Interaction with the Activate service is managed by the applicable EULA and Subscription Services Agreement for Activate.
Data Subjects. Processing concerns Client’s personnel for whom Credentials are requested by Client.
Processor Obligations
Client and VTS acknowledge and agree that Client is the controller of Client Personal Data and VTS is the processor of Client Personal Data pursuant to the Agreement. In certain instances, Client may be the processor of Client Personal Data, in which case VTS is appointed as a subprocessor of such Client Personal Data pursuant to the Agreement. Whether VTS is serving as a processor or subprocessor, VTS’s obligations shall remain pursuant to this Agreement, which align with VTS’s obligations as a processor pursuant to the Privacy Laws.
VTS shall only use, disclose, or otherwise process Client Personal Data, on behalf of and in accordance with Client’s documented instructions, unless otherwise provided under Applicable Law.
VTS complies with the EU-U.S. and Swiss-U.S. Data Privacy Frameworks (DPF) and the UK Extension to the EU-U.S. DPF as set forth by the US Department of Commerce regarding the collection, use and retention of personal information from the EEA, Switzerland and the UK, respectively (collectively the “Framework”). Client hereby authorizes VTS to transfer Client Personal Data to the United States for provision of the Services and performance under this Agreement subject to the Principles and Supplemental Principles as contained in the Framework applicable to the data transfer.
VTS shall ensure that its personnel authorized to process Client Personal Data are subject to a duty of confidentiality by contract or are under an appropriate statutory obligation of confidentiality with respect to Client Personal Data.
VTS shall implement appropriate technical and organizational measures with respect to Client Personal Data, after taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of data subjects, for the purpose of ensuring a level of security appropriate to the risk.
Upon becoming aware of an accidental or unlawful destruction, permanent loss or alteration, unauthorized disclosure, access, or use of Client Personal Data by a third party (each, a “Security Incident”), VTS shall notify Client without undue delay. VTS shall further assist Client in fulfilling its personal data breach notification obligations under Applicable Law, taking into account the nature of the processing and the information available to the VTS.
Client hereby consents to VTS’s use of third party subprocessors generally, and specifically the Resellers and the third parties described in the VTS Subprocessor List in Appendix A at www.vts.com/terms, as such list may be updated from time to time (“Downstream Subprocessors”) to process Client Personal Data pursuant to the Agreement. Client may elect to receive notification in advance of the inclusion of an additional subprocessor by providing such request to VTS at legal@vts.com and the appropriate email address(es) for receipt of notice. If Client reasonably objects in writing to a new or replacement Downstream Subprocessor within seven (7) calendar days after receipt of notice of such change, and the parties cannot resolve Client’s reasonable objection within fourteen (14) calendar days after receipt of such objection, then Client may terminate the applicable Order.
VTS may replace or add a Downstream Subprocessor without prior notice to Client if, in its sole discretion, such action is necessary to prevent or mitigate risk to the Services, Personal Data, technology infrastructure, or Clients. VTS shall update the Subprocessor List with the replacement or additional Downstream Subprocessor as soon as possible, and Client shall retain the right to object to such Downstream Subprocessor as described in (vii) above upon receipt of such notice.
VTS shall enter into written contracts with its Downstream Subprocessors that include data protection obligations that are at least as strict as the standard set forth in this Agreement and shall remain liable for any breach by Downstream Subprocessor under this Agreement as if it were a breach by VTS.
Taking into account the nature of the processing, and to the extent Client cannot fulfill such obligations directly via the Services, VTS shall provide commercially reasonable assistance, including through appropriate technical or organizational measures, insofar as this is possible, to Client to fulfill its obligations to respond to data subject rights requests, specifically the right to access, rectification, erasure, restriction, objection, or portability, as applicable under Applicable Law. If VTS receives a request directly from a data subject it will notify Client of the request (including all relevant details provided by data subject) and await Client’s instructions.
VTS shall notify Client without undue delay if a supervisory authority or law enforcement authority makes any inquiry or request for disclosure of Client Personal Data.
VTS shall provide Client with reasonable assistance should Client conduct a data protection impact assessment regarding the Services, including providing information reasonably necessary for Client’s prior consultation with a supervisory authority regarding such data protection impact assessment.
VTS shall make available to Client all information necessary to demonstrate compliance with the obligations laid down in this Section and, at Client’s expense, allow for and contribute to audits, including inspections, conducted by the Client or an independent third-party auditor mandated by the Client. VTS shall inform Client immediately if, in its opinion, a Client instruction infringes Applicable Law.
Upon termination or expiration of this Agreement, VTS shall, in accordance with the terms of this Agreement, delete or return to Client all relevant Client Personal Data (and delete all copies) in VTS’s possession, save to the extent that VTS is required under any Applicable Law to retain some or all Client Personal Data or is retained pursuant to the archival and backup policies of VTS. In such event, VTS shall extend the protections of this Agreement to such Client Personal Data and limit processing of such Client Personal Data to only those purposes for so long as VTS maintains the Client Personal Data.
Other Terms
Entire Agreement and Changes. This Agreement, the purchase order, and the Resellers’ terms and conditions applicable to Credentials constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Client is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding. No modification of this Agreement or any Order may be made except in a writing signed by both parties. No waiver of this Agreement is effective against a party unless that party signs such waiver in writing. Client shall appoint an account owner who shall have the authority to add subscriptions to Client’s account by written request (including email), online/in-app request and other means which may be introduced by VTS. Client shall be bound by all actions of its account owner. Client may change the account owner upon written notice to VTS.
No Assignment. Neither party may assign or transfer this Agreement (including by operation of law) or an Order to a third party, except that this Agreement with all Orders may be assigned by either party, without the consent of the other party, as part of a merger, reorganization, change in control, or sale of substantially all of its assets.
Independent Contractors. The parties are independent contractors with respect to each other and nothing in this Agreement shall be deemed to establish any partnership, joint venture, employment, franchise or agency relationship. Further, neither party will have the power to bind the other without the other’s prior written consent nor make any representation that it has any such power.
Force Majeure. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
Money Damages Insufficient. Any breach by a party of Sections 1(c) or 5 of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach. Such party will not be required to post a bond or other security in connection with the granting of any such relief.
No Additional Terms; No Waiver. VTS rejects additional or conflicting terms of any Client form-purchasing document. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
Survival of Terms. Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement will survive (including, without limitation, the confidentiality terms, the proprietary rights, the disclaimer, and the indemnity terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
Severability. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
Feedback. By submitting ideas, suggestions, or feedback to VTS regarding the Credentials or its services, Client agrees that such items submitted do not contain confidential or proprietary information, and Client hereby grants VTS an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose, without any compensation or attribution to Client.
Reference Account. Client shall allow VTS to use its name and logo in its marketing communications and materials, in accordance with Client’s trademark guidelines and policies.
Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be considered an original and all of which together shall constitute one and the same agreement. The parties agree that this Agreement may be electronically signed. The parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
No Third-Party Beneficiaries. Except as otherwise expressly provided for in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement. No person who is not a party to this Agreement shall have any right to enforce any term of this Agreement.
Governing Law and Venue. This Agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties arising out of or relating to the subject matter of this Agreement. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts in New York, New York for any dispute between the parties arising out of or relating to the subject matter of this Agreement.