DOMAINRANK TERMS OF SERVICE
These Terms of Service (the “Agreement”) are a legal agreement between Profound Networks, Inc. (“Profound”) and you (“you” or “your”), and govern your access to and use of: (i) Profound’s DomainRank software as a service (collectively the “Service”); and (ii) the domain name information, content or materials accessible via the Service (collectively, the “Service Content”).
This is a legal document between you and PROFOUND. PLEASE READ IT. By accessing or using the SERVICE and/OR any SERVICE content (DEFINED BELOW) MADE AVAILABLE THROUGH the SERVICE, you: (i) ACKNOWLEDGE that you have read and understand all of the terms in this Agreement; and (ii) expressly agree to the terms set forth HEREIN. If you do not agree to the terms and conditions of this Agreement, do not access or use the SERVICE or any SERVICE content.
If you agree to the terms of this Agreement, you have the following rights, obligations and responsibilities:
“Usage Rights” means the usage rights purchased by you or your entity or organization, as applicable, with respect to the access to and/or use of the Service, as specified in your Order Form.
“Systems Data” means all data, content and information regarding your use of the Service and/or the Service Content in the nature of de-identified or aggregate systems administrative data, statistical, demographical data, operational information, and data generated by or characterizing the use of the Service and/or the Service Content.
Other capitalized terms used in this Agreement shall have the definitions given to those terms herein.
2. Grant of License.
2.1 During the Term and subject to the terms and conditions of this Agreement, including without limitation, your Usage Rights, Profound hereby grants to you a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable right and license to: (i) access and use the Service solely for your internal, non-commercial use only; and (iii) use, reproduce and copy (but only to the extent authorized herein), without modification, the Service Content, solely for your internal, non-commercial use only, in each case, subject to the following terms, conditions and restrictions:
2.1.1 The Service may permit users to download and/or print certain Service Content. To the extent the Service permits the downloading and/or printing of Service Content, you have the following rights:
(a) The license rights granted in this Section do not include the right to copy, print or download the Service Content apart from the Service, and you agree not to copy, print and/or download such Service Content apart from the Service except as otherwise expressly permitted herein.
(b) To the extent the Service permits you to download and/or print Service Content, then the license rights granted in this Section include the right to make printouts and/or copies of the Service Content, provided that, you may make a reasonable number of printouts and/or copies of the Service Content, without modification, solely for your internal, non-commercial use only. Any printouts or copies of the Service Content shall retain Profound’s copyright and/or other proprietary rights notices, in addition to any and all disclaimers and/or limitations included in the Service Content.
(c) Except as otherwise expressly set forth in this Section, downloading, printing, copying, modifying, distributing or otherwise using the Service and/or Service Content for external commercial purposes, including commercial publication, sale or personal gain, is expressly prohibited.
2.1.2 You may only access and/or use the Service and the Service Content within the scope of your Usage Rights. For example, certain Usage Rights may be limited to the use of the Service and/or the Service Content by a single user or multiple single users, or impose other prohibitions or restrictions on your use of the Service and/or the Service Content. It is your obligation to know and understand the scope and extent of your Usage Rights. If you exceed the scope of your Usage Rights and/or the license rights granted to you in this Agreement, you agree: (i) that Profound may invoice you for the additional fees commensurate with any such unauthorized use; (ii) that you will pay such invoice within thirty (30) days of your receipt of the invoice; and (iii) that such remedy is not exclusive of the other remedies available to Profound in connection with such unauthorized use.
2.2 You may use the Service only for lawful purposes in accordance with the terms and conditions of this Agreement. Except as expressly permitted in this Agreement, you agree not to:
2.2.1 License, sublicense (except as expressly permitted by this Agreement), lease, rent, timeshare, distribute, disclose, permit access to, or transfer to any third party, any portion of the Service and/or the Service Content, whether for profit or without charge;
2.2.2 Store, reproduce, distribute, transmit, modify, adapt, perform, display (including by "framing"), publish or sell the Service and/or the Service Content;
2.2.3 Translate, reverse engineer, disassemble, decompile, discover, or modify the Service or Profound’s software;
2.2.4 Remove any copyright and other proprietary notices placed upon the Service or any Service Content retrieved from the Service;
2.2.5 Circumvent any use-limitation or protection device contained in or placed upon the Service or any Service Content retrieved from the Service or access or attempt to access any portion of the Service or Service Content that you are not authorized to access;
2.2.6 Use the Service to execute denial of service attacks;
2.2.7 Perform automated searches against Profound’s systems (except for non-burdensome federated search services), including automated "bots", link checkers or other scripts, without prior written permission from Profound;
2.2.8 Use the Service or Service Content to create products or perform services which compete or interfere with those of Profound or its licensors;
2.2.9 Text mine, data mine or harvest metadata from the Service;
2.2.10 Impair or overburden the Service or any servers or systems associated with the Service;
2.2.11 Impersonate any person or entity or otherwise misrepresent your affiliation with any person or entity;
2.2.12 Violate any applicable local, state, national or international law;
2.2.13 Use the Service and/or the Service Content in any manner that violates, infringes, or misappropriates the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party;
2.2.14 Introduce to the Service any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
2.2.15 Download all or parts of the Service and/or the Service Content in a systematic or regular manner or so as to create a collection of materials comprising all or a material subset of the Service and/or the Service Content, in any form; or
2.2.16 Use the Service and/or the Service Content in connection with life support systems, medical devices, or any application or other high risk activities where failure or malfunction could lead to possible loss of life.
2.3 You acknowledge and agree that the Service and the Service Content are licensed and not sold. The Service and/or the Service Content are owned by Profound and/or its licensors, and are protected by United States trademark and copyright laws and international treaty provisions. Profound and/or its licensors own and retain all right, title and interest in and to the Service and/or the Service Content, including any and all patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein. Your possession or use of the Service and/or the Service Content does not transfer to you any right, title or interest in any of the foregoing and you will not acquire any such right, title or interest, except as expressly set forth in this Agreement.
2.4 You acknowledge and agree that all Systems Data is and shall remain the sole and exclusive property of Profound. For purposes of clarity, Profound may make any legal use of the Systems Data without notifying you or sharing such Systems Data with you. Specifically, Profound may publish and share Systems Data with others in aggregate or statistical form to promote the Service and/or the Service Content, and for evaluating the efficiency, utility and functionality of the Service and/or the Service Content.
3. Availability. To the extent the Service or Service Content is hosted by Profound, Profound shall use commercially reasonable efforts to ensure that the Service and the Service Content are available for use and/or access by end users on an uninterrupted basis. However, you acknowledge and agree that the Service and/or the Service Content will not always be available, as a result of, among other things, scheduled maintenance, system downtime, failures of the Internet generality, and other causes. In the event of any such unavailability, your sole and exclusive remedy, and Profound’s sole and exclusive liability, shall be for Profound to use commercially reasonable efforts to restore the availability of the Service or the Service Content as soon as reasonably practicable under the circumstances. Profound shall not be liable for any failure, delay or interruption in the Service and/or the Service Content due to failure of any equipment or telecommunications, or for failures resulting from any cause beyond Profound’s reasonable control.
4. Modifications or Changes. Profound further reserves the right to modify, alter and/or change the Service at any time, including without limitation, by modifying, altering and/or changing the Service Content or any Service features or functions, or by removing or disabling certain Service Content or Service features or functions altogether. You acknowledge and agree that Profound shall have no liability to you with respect to any such modifications, alterations or changes, or with respect to any Service Content or Service features or functions that have been disabled or removed from the Service.
5. Your Account.
5.1 In order to access and use the Service, you may be required to register for a user account (“Your Account”). In registering for Your Account, you must provide accurate, current and complete information as may be prompted by any registration forms or as otherwise requested by Profound (collectively, “Registration Data”). By submitting the Registration Data, you represent and warrant that the Registration Data is accurate, current and complete. If you are registering on behalf of an entity or organization, you further represent and warrant that you are: (i) an employee or representative of that entity or organization; and (ii) authorized to accept and agree to this Agreement on behalf of the entity or organization and to otherwise bind the entity or organization to the terms and conditions hereof.
5.2 You are fully responsible for all usage and activity on the Service under Your Account and shall be liable for all such use and activity. You are solely responsible for maintaining the confidentiality and security of your login and password(s) (whether or not provided by Profound or chosen by you), and you agree to immediately notify Profound of any known or suspected unauthorized use(s) of Your Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your login and password. You further agree to: (i) take reasonable efforts to resolve any unauthorized access to the Service; and (ii) reasonably cooperate with Profound in mitigating and/or resolving the unauthorized access. Notwithstanding anything else herein, Profound reserves the right to pursue any and all claims against you for acts and/or omissions under Your Account.
5.3 Except as otherwise authorized in writing by Profound and/or as permitted by your Usage Rights, the license rights granted in this Agreement are limited solely for your individual use in accessing and/or using the Service and/or the Service Content. Except as otherwise authorized in writing by Profound and/or as permitted by your Usage Rights, you agree that under no circumstances will you permit any other person or entity, including your fellow employees or your entity or organization, to use Your Account for the purpose of accessing the Service, nor may you access and/or use the Service and/or the Service Content using the account information of any other person, entity or organization.
6.1 Service Content. You acknowledge and agree that the Service Content is provided for informational purposes only. While commercially reasonable care has been taken in compiling, organizing, maintaining and presenting the Service Content, Profound does not warrant or guarantee its completeness, legality, correctness, accuracy, or timeliness.
6.2 Third Party Content. The Service may display or make available, and the Service Content may include, third party content (including data, information, applications and other products services and/or materials) (collectively, "Third Party Materials"). You acknowledge and agree that Profound is not responsible for the Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Profound does not assume and will not have any liability or responsibility to you or any other person or entity for any Third Party Materials.
6.3 Your Content.
6.3.1 The Service may permit end users to upload and/or transmit data, communications, content, materials and other information owned and/or controlled by such end users (collectively, “Your Content”). Your Content is and shall at all times remain your sole and exclusive property, provided that, you hereby grant to Profound a non-exclusive, non-transferrable, non-sublicensable license to load, transmit, distribute and/or make available Your Content in and through the Service. You are solely responsible for any and all of Your Content uploaded and/or transmitted in and/or through the Service. You represent and warrant to Profound: (i) that you own Your Content or otherwise have sufficient rights in Your Content to grant the license rights granted to Profound in this Section; (ii) that Your Content does not, and its use by Profound as contemplated in this Section will not, violate, infringe, or misappropriate the intellectual property rights, publicity or privacy rights, or other proprietary rights of any third party; and (iii) that there are no claims currently pending or threatened as to your ownership of or rights in Your Content, or as to your violation, infringement or misappropriation of any third party intellectual property rights, publicity or privacy rights, or other proprietary rights with respect to Your Content, and to your knowledge, you have not engaged in any acts or omissions likely to result in any such claims.
6.3.2 In the event that Profound discovers that Your Content is in violation of this Section 6 or Section 2.2.13 above, Profound may, without limiting its rights or creating any liability therefor, immediately remove Your Content from the Service, and may further block and/or restrict your access thereto pending resolution of any such violation.
6.3.3 You are responsible for keeping appropriate copies and records of Your Content. Profound has no obligation to back up or maintain Your Content, and Profound takes no responsibility and assumes no liability for Your Content, including without limitation any loss or damage thereto.
7. Payments. You will pay all fees specified in any order forms or similar documentation under which you acquired your license rights in the Service (an “Order Form”), in each case, pursuant to the terms thereof. Except as otherwise specified herein or in an Order Form: (i) fees are based on the license rights purchased and not actual usage; and (ii) except as otherwise set forth herein, payment obligations are non-cancelable and fees paid are non-refundable. Except to the extent you have provided an exemption certificate or other appropriate documentation, you are responsible for any and all applicable sales, use and other taxes (other than taxes based on Profound’s income).
8. Term and Termination.
8.1 Term. This Agreement will commence as of the date you first click “I ACCEPT THE TERMS OF SERVICE” on the Order Form or registration page (the “Effective Date”) and will continue until terminated as set forth in this Agreement.
8.2.1 This Agreement will terminate as follows:
(a) In the event you are no longer authorized to access and/or use the Service as a result of the expiration or termination of your Usage Rights;
(b) Profound may terminate this Agreement upon written notice to you effective immediately, if you commit a material breach of this Agreement; and
(c) Either party may terminate this Agreement, at any time, for any reason or no reason, by providing thirty (30) days’ prior written notice to the other party.
(d) Profound may terminate this Agreement upon written notice to you effective immediately, in the event that, due to a change in applicable law, Profound is no longer able to provide the Service and/or the Service Content for its end users generally, or providing the Service and/or the Service Content is no longer commercially feasible. Upon any termination in accordance with this Section, you will receive a pro-rated refund of any fees paid by you pursuant to Section 7 that are unearned as of the effective date of termination.
8.2.2 If this Agreement is terminated in whole or in part due to your breach: (i) Profound will disable access to the Service; (ii) you agree to destroy any and all Service Content in your possession or control, and certify destruction upon request; (iii) you forfeit all prepaid fees (except as set forth in Section 8.2.1(d) above); and (iv) Profound reserves the right to pursue all available legal remedies. The parties intend that the parties’ rights, obligations and responsibilities set forth in Sections 1, 2.3, 2.4, 6, 8.2.2, 9, 10, 11, 12, 13, 14.2, 17, and 19 through 22 shall survive the termination of this Agreement.
9. Indemnity. You agree to defend, indemnify and hold harmless Profound, its licensors, affiliates, successors and assigns, and each of their respective officers, directors, agents, and employees (the “Profound Indemnitees”), for, from and against any and all claims, demands, loss, damage, liability, or expense (including, but not limited to, attorneys’ fees at trial, on appeal, and on any petition for review), arising out of or related to the breach of this Agreement by you, or otherwise arising from the use of the Service and/or the Service Content by you, including without limitation, any actual or threatened suit, demand or claim made against the Profound Indemnitees arising out of or relating to your conduct, your violation of this Agreement, your violation of the rights of any third party, or the Service Content.
10. Audits. Profound may retain administrative access to Your Account through the Service for purposes of auditing your compliance with the terms of this Agreement, including without limitation, your usage of the Service and/or the Service Content. Profound and/or its designees shall further have the right, upon reasonable prior notice to you, to audit and inspect your systems, devices, and/or records for purposes of determining your compliance with this Agreement, which audit right may include the right to access and inspect your facilities and copy any documents or records in connection with such audit. You agree to cooperate with Profound in connection with any such audit. In the event any such audit discloses use of the Service in excess of your Usage Rights or any other material breach of this Agreement, you acknowledge and agree that Profound shall have the rights set forth in Section 2.1.2 above, and you further agree to reimburse Profound for the costs and expenses incurred by Profound in connection with such audit.
11. Disclaimer. THE SERVICE AND THE SERVICE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” PROFOUND AND ITS LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND RELATING TO THE SERVICE AND/OR THE SERVICE CONTENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AVAILABILITY, ACCURACY, TIMELINESS, CORRECTNESS, RELIABILITY, CURRENCY, OR COMPLETENESS OF THE SERVICE, THE SERVICE CONTENT OR ANY INFORMATION OR RESULTS OBTAINED THROUGH THE SERVICE, EVEN IF ASSISTED BY PROFOUND. PROFOUND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PROFOUND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR DETERMINING THE COMPATIBILITY OF ANY HARDWARE OR SOFTWARE NOT SUPPLIED BY PROFOUND WITH THE SERVICE AND PROVIDES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE OPERATION OF SUCH HARDWARE OR SOFTWARE WITH THE SERVICE. THE SOLE RISK OF USING THE SERVICE AND/OR THE SERVICE CONTENT IS WITH YOU.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW AND ONLY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12. Limitation of Liability. THE MAXIMUM LIABILITY OF PROFOUND AND/OR ITS LICENSORS ARISING OUT OF OR RELATING TO THE SERVICE, THE SERVICE CONTENT AND/OR THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES RECEIVED BY PROFOUND FROM YOU AND/OR YOUR ENTITY OR ORGANIZATION, AS APPLICABLE, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR WHICH SUCH DAMAGES ARE ALLEGED TO BE OWED. IN NO EVENT SHALL PROFOUND AND/OR ITS LICENSORS BE LIABLE TO YOU FOR: (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES; (ii) ANY CLAIM RELATED TO YOUR CONTENT OR ANY OTHER USER GENERATED CONTENT OR MATERIALS, OR ANY THIRD PARTY MATERIALS; OR (iii) ANY CLAIM RELATED TO THE UNAUTHORIZED ACCESS TO AND/OR USE OF THE SERVICE AND/OR THE SERVICE CONTENT.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
14. Suspension; Equitable Relief.
14.1 Without limiting the above, Profound may suspend delivery of the Service if it reasonably determines that you are not in compliance with this Agreement, including without limitation, by not making full and timely payment to Profound and/or exceeding your Usage Rights, or as necessary to prevent injury or damage to Profound and/or its end users. If delivery is suspended, Profound will restore your access as soon as you come back into compliance with the terms of this Agreement and/or the cause of the suspension has been remediated, in each case, as determined in Profound’s sole and absolute discretion. Profound’s suspension of the Service is without prejudice to any right, claim or remedy of Profound under this Agreement, including without limitation, Profound’s rights under Section 8 above.
14.2 You hereby acknowledge and agree that, in the event of any breach or threatened breach of your obligations or responsibilities under Section 2 above or any other provision affecting Profound’s and/or its licensors’ intellectual property rights in the Service and/or the Service Content, Profound may suffer irreparable injury for which damages at law may not be an adequate remedy. Accordingly, without prejudice to any other rights and remedies otherwise available to Profound at law or equity, Profound shall be entitled to seek equitable relief, including injunctive relief and specific performance, for any such breach or threatened breach of this Agreement by you.
15. Export. The Service and/or the Service Content may be subject to United States’ export control laws, including the U.S. Export Administration Act and its associated regulations. You agree as follows:
15.1 You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
15.2 You shall not, directly or indirectly, export, re-export or release the Service and/or the Service Content to, or make the Service and/or the Service Content accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You agree to comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Service and/or the Service Content available outside the United States.
16. Government Rights. The Service may constitute commercial computer software, as such term is defined in 48 C.F.R. § 2.101. Accordingly, if you are an agency of the United States Government or any contractor therefor, you receive only those rights with respect to the Service as are granted to all other end users under license, in accordance with: (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors; or (ii) 48 C.F.R. §12.212, with respect to all other United States Government licensees and their contractors.
17. Confidentiality. The Service Content and Profound’s methods and technology associated with the collecting, compiling, organizing, maintaining and/or presenting of the Service Content is confidential and proprietary to Profound (“Confidential Information”). You agree to: (i) not use the Confidential Information other than to exercise your rights or perform your obligations hereunder; and (ii) use at least the same degree of care, but not less than reasonable care, to prevent disclosing the Confidential Information. You further agree not to disclose or permit any other person or entity access to the Confidential Information, except such disclosure or access shall be permitted to any of your employees, agents, representatives or independent contractors requiring access in order to exercise your rights or perform your obligations hereunder, provided the foregoing are subject to confidentiality obligations at least as restrictive as those set forth in this Agreement. Upon expiration or earlier termination of this Agreement for any reason or at any time at the request of Profound, you agree to return or destroy, at Profound’s option, all Confidential Information (including all copies or parts thereof) in your possession, custody or control.
18. Amendments. Profound may update or modify this Agreement and any policies affecting the Service immediately upon notice to you posted to the Service or distributed via electronic mail. You will be required to click “I ACCEPT THE TERMS OF SERVICE” upon any subsequent use of the Service following such an update or modification. Your clicking “I ACCEPT THE TERMS OF SERVICE” and your subsequent use of the Service shall be conclusively deemed an acceptance of all such updates or modifications. If you do not wish to be bound by such update or modification and so notify Profound prior to your clicking “I ACCEPT THE TERMS OF SERVICE,” and Profound will refund any unearned fees that you have paid. Any updates or modifications to this Agreement shall be deemed to supersede and/or replace the Agreement in its prior form, to the extent set forth in such updates or modifications.
19. Governing Law; Disputes. This Agreement is governed by the laws of the United States and the State of Washington, USA, without reference to conflict of laws principles. Except where prohibited, you agree that all disputes, claims and legal proceedings in any way arising out of or relating to the Service, the Service Content, or this Agreement shall be resolved individually, without resort to any form of class action, and exclusively in the state or federal courts located in King County, Washington. You waive all defenses of lack of personal jurisdiction, improper venue, “forum non conveniens” and the like with respect to such courts. TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
20. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to its subject matter and supersedes all previous and contemporaneous agreements between the parties with respect to the same subject matter hereof and may not, except as otherwise set forth in this Agreement, be amended or modified except in a writing signed by the parties. The terms of your purchase orders, if any, are for your convenience and do not supersede any term or condition of this Agreement.
21. Notice. Any notice, communication, or complaint by you to Profound with respect to the Service may be sent to:
Profound Networks, LLC
227 Bellevue Way NE 900
Bellevue, WA 98004
Attn: Legal Department
22. General. The parties agree as follows: (i) no waiver will be binding on a party unless it is in writing and signed by the party making the waiver and a party’s waiver of a breach of a provision of this Agreement will not be a waiver of any other provision or a waiver of a subsequent breach of the same provision; (ii) the parties will have all remedies available to them at law or in equity; (iii) if any term or provision of this Agreement is determined to be unenforceable in any respect, the enforceability of the term or provision in any other respect and of the remaining provisions of this Agreement will not be impaired; and (iv) both parties have full power and authority to enter into and perform this Agreement.