Iron Mountain’s Terms and Conditions for the Supply of Policy Centre Standard Edition Services

Iron Mountain’s Terms and Conditions for the Supply of Policy Centre Standard Edition Services

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POLICY CENTRE SUBSCRIPTION TERMS AND CONDITIONS

1. Definitions.

“Affiliate” means any company which is a member of either the Iron Mountain Group or Customer Group as applicable.
“Agreement” these terms anda conditions together with the Order Form and the relevant Services Schedule(s) and Charges Schedule(s) identified therein.
“Customer Group” means the Customer and any parent undertaking of the Customer and any undertaking which, in relation to the Customer and/or parent undertaking of the Customer, is a subsidiary undertaking from time to time. For the purposes of this definition, the words “undertaking”, “subsidiary undertaking” and “parent undertaking” have the meanings set out in sections 1161 and 1162 of the Companies Act 2006.
“Data” means all data and information provided by Customer to Iron Mountain under this Agreement in connection with the Services.
“Documentation” means user manuals for the Services, the applicable instal
lation guides, service descriptions, technical specifications, and online help files provided by Iron Mountain or its Suppliers or available on Iron Mountain’s online portal. “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the Software Service is Unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any SLA Exclusions (defined herein).
“Iron Mountain Group” means Iron Mountain and any parent undertaking of Iron Mountain and any undertaking which, in relation to Iron Mountain and/or parent undertaking of Iron Mountain, is a subsidiary undertaking from time to time. For the purposes of this definition, the words “undertaking”, “subsidiary undertaking” and “parent undertaking” have the meanings set out in sections 1161 and 1162 of the Companies Act 2006.
“Order Form” the order confirmation form to which these terms and conditions relate and the relevant Services Schedule(s) and Charges Schedule(s) identified therein.
“Personal Data” means any information relating to an identified or identifiable living person.
“Professional Services” means the installation, consulting, training, or data shuttling services performed by Iron Mountain or Supplier personnel for the benefit of Customer as set forth in a Schedule.
“Schedule” means a document annexed to this Agreement, physically or by reference, describing among other things the Services, number of licensed users (where relevant) and pricing.
“Services” means any of the Software Services, Professional Services, Support Services and training described herein.
“Software Service” means the Iron Mountain Policy Center Subscription service and associated Documentation.
“Subscription Level” means the edition type of the Software Service that the Customer has subscribed to, as specified in the Order Form. The Software Service is available in Standard, Professional and Enterprise editions. From time to time, Iron Mountain may offer additional Subscription Levels at its sole discretion.
“Subscription Period” means the period during which Customer may use the Service, commencing with the start date and expiring on the end date specified in the Order Form.
“Suppliers” means Iron Mountain’s licensors, suppliers, and/or third party providers of the Services.
“Support Services” means the service and related maintenance in support of the Services purchased by Customer as described in the applicable Schedule.
“Unavailable” and “Unavailability” means that Customer is not able to sign in to the Software Service system using valid user credentials, over a working Internet connection with a standard web browser.
“User” shall mean the Customer and Affiliates’ employees and contractors who use the Service through User IDs issued in a manner contemplated by this Agreement.

2. Subscription.

2.1. Subscription Procedure. Customer will subscribe to the Software Service under one or more Order Forms and/or Schedules. In the event of any conflict between this Agreement and a Schedule, this Agreement shall prevail.
2.2. Initial Service. Customer will execute an initial Order Form that incorporates, but reference, these terms and conditions. Iron Mountain will provide the Software Service described in the initial Order Form to Customer for the Subscription Period specified therein according to such Order Form and this Agreement.
2.3. Additional Service. Additional Order Forms and/or Schedules may be entered into by the Parties to subscribe to additional or different features of the Software Service. Unless designated as replacing a specific outstanding Order Form and/or Schedule, a new Order Form and/or Schedule will be considered in addition to currently outstanding Order Form and/or Schedules.

 

3. Maintenance and Training.

3.1. Customer will receive the following maintenance and training Services during the term of this Agreement:
3.1.1. Maintenance Upgrades. Customer shall receive bug-fixes, enhancements to existing functionality, and all new releases commensurate with their Subscription Level, as designated by the Iron Mountain in its reasonable discretion, and at no additional charge.
3.1.2. Exceptions. Support Services do not include preparation of Data, configuration or customization of Software Service features needed to function in Customer's production environment.

 

4. License.

4.1. License Grant for Services. Iron Mountain shall perform the Services at the rates and charges set forth in the Order Form. Iron Mountain grants to Customer a non-exclusive, non-transferable license for the term of this Agreement to: (i) use the Services in the manner set forth in this Agreement and the applicable Order Form; (ii) use the Services only for Customer’s internal business needs; and (iii) use the Documentation to support the use of the Services. Customer shall not sublicense, sell, rent, lease, transfer, distribute or otherwise commercially exploit or make the Services and/or Documentation available to any third party other than its agents or contractors who are bound to comply with the terms and conditions of this Agreement. Customer and all of its Users shall be bound by and comply with this Agreement, and Customer is solely responsible for the activities of its Users and for the accuracy, integrity, legality, reliability, and appropriateness of all Data. Iron Mountain expressly reserves all rights in the Services not specifically granted to Customer. It is acknowledged that all rights, title and interest in the Services will remain with Iron Mountain (or third party suppliers, if applicable) and that the Software Service is licensed on a subscription basis and not “sold” to Customer. Customer Group expressly reserves all rights in the Data, except the limited right of Iron Mountain to use the Data for the sole purpose of providing the Service features for Customer Group's benefit and only during the Subscription Period. Unless specifically agreed in writing, each Party's exclusive ownership rights extend to any update, adaptation, translation, customization, compilation or derivative work thereof.
4.2. Restrictions. Customer shall not (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Services; (ii) modify, port, translate, localise or create derivative works of the Services; (iii) use the Services to (a) infringe on the intellectual property rights, publicity rights, or privacy rights of any third party; (b) violate, or cause Iron Mountain or its Suppliers to violate, any law, statute, ordinance or regulation; (c) store defamatory, trade libelous, or otherwise unlawful Data; (d) store obscene, pornographic or indecent Data in violation of applicable law; or (e) propagate any virus, worms, trojan horses or other programming routine intended to damage any system or data; (iv) use the Services in any application that may involve risks of death, bodily injury, property damage or environmental damage (including life support applications, devices or systems); (v) exceed the number of Users as may be specified in the applicable Schedule for each user level (if applicable); (vi) attempt to gain unpermitted access to any Iron Mountain or Supplier computer system, network, or database; or (vii) file copyright or patent applications that include the Services or any portion thereof.
4.3. Data License Grant. Customer grants to Iron Mountain and its Suppliers a limited, non-exclusive, and non-transferable license to the Data only to the extent necessary for Iron Mountain or its Suppliers to perform the Services. In the event that Iron Mountain needs to access the Data to respond to any technical problems, queries, or requests from Customer, Customer shall ensure that both Customer and Iron Mountain are permitted to do so.
4.4. Accessing User Accounts. Iron Mountain will issue User IDs needed by Customer to access and use the policy manager Service features specified in the applicable Order Form during the Subscription Period. Customer will authorise access to and assign unique passwords and usernames to each other User. User logins are for designated Users and cannot be shared or used by more than one User. Customer will only access and use the Service through the User IDs issued by Iron Mountain or Customer, as the case may be. Users will not share User IDs with each other or with third parties. Iron Mountain may assume a person entering a User ID and password is, in fact, that user, unless otherwise advised by Customer. Iron Mountain may assume the latest email addresses and registration information on file with the Service are accurate and current. Users may access and use the Software Service from any location through User IDs (issued by the Iron Mountain or Customer, as the case may be) up to the number of Users per User type specified on the Schedule. Customer is responsible for all activity occurring under its User IDs. Customer may request Iron Mountain to add/drop User IDs as reasonably needed to accommodate changes in Customer workforce. Customer is not entitled to a refund for any unused or unassigned User IDs.
4.5. Data Preparation & Configuration. Customer will use commercially reasonable efforts to ensure that: (i) Data is in proper format as specified by the Documentation; (ii) its Users are familiar with the use and operation of the Software Service, and (iii) no other software, data or equipment has been introduced by Customer. Iron Mountain will load the Data provided in the format specified and configure the Software Service as part of the Subscription Fee; any additional data preparation or manipulation required by the Iron Mountain to load Data will be billed at general service rates specified in the Order Form. Customer is responsible for updates to its internal processes as needed to operate the Software Service and any updates in Customer's computing environment.
4.6. Access to Environments. One Software Service instance is available to Professional Edition subscribers. Enterprise subscribers are entitled to three instances (production, staging and test) for the term of the subscription to the Software Service.
4.7. Password Protection of Service. Customer shall be responsible for protecting and safeguarding any keys (including encryption keys), certificates, passwords, access codes, user IDs or other login information (collectively, “Passwords”) provided to Customer for the purpose of accessing and using the Services. In the event that Customer makes such Passwords available to any third party, Customer shall be responsible for all actions taken by such third party in connection with the Services. Customer shall not disclose or make available Customer’s Passwords other than to Customer’s authorised employees and shall use all commercially reasonable efforts to prevent unauthorised access to, or use of the Services, and will notify Iron Mountain promptly of any such unauthorised use. In no event will Iron Mountain be liable for any loss of Data or other claims arising out of or in connection with the unauthorised acquisition of a Password.

 

5. Term and Termination.

5.1. Term of Agreement. The term of this Agreement shall commence on the effective date and continue for the period identified in the Order Form.
5.2. Termination for Material Breach. In the event that a Party materially breaches its obligations under this Agreement, the other Party may terminate the affected Order Form and/or Schedule(s) upon written notice to the other Party unless the breaching Party cures such default within thirty (30) days after the non-breaching Party’s written notice, subject to the Fees in the applicable Order Form and/or Schedule(s).
5.3. Effect of Termination. Upon termination of this Agreement, Customer shall (i) immediately discontinue all use of the Services, (ii) return, uninstall, or destroy (along with all copies in any form) the applicable Documentation or other materials licensed to Customer; and (iii) pay any fees and other accrued and unpaid amounts due to Iron Mountain. Upon termination, Iron Mountain shall (a) have no further obligation to make the Services available to Customer; (b) securely destroy the applicable Data or, upon Customer’s prior written request, return the applicable Data to Customer, subject to any relevant Fees; and (c) upon written request by Customer and payment of the applicable Fees, provide a written certification to Customer that all Data has been returned or destroyed. Upon termination or expiration, Iron Mountain may delete all Data stored pursuant to the Agreement and will have no liability for such action to Customer or anyone claiming by or through Customer.

 

6. Prices and Payment.

6.1. Charges. Customer shall pay an annual subscription fee for the Services exclusive of VAT (collectively, the “Fees”) as set out in the Order Form and/or Schedule. The price of the Software Service includes online data storage and nightly data backups. A rolling archive of Data is maintained for the past fourteen nightly backups, the past twelve monthly backups and all annual backups. All applicable VAT will be stated separately on Iron Mountain’s invoice and shall be the responsibility of Customer.
6.2. Payment Terms. Customer shall pay the Fees thirty (30) days from date of invoice. If Customer is late in paying undisputed fees, Iron Mountain may (in its discretion) charge Customer interest on the outstanding balance in accordance with the Late Payment and Commercial Debts (Interest) Act 1998. In the event Customer fails to pay any undisputed fees as and when due pursuant to this Agreement and such failure continues for a period of thirty (30) days, Iron Mountain may, at its option, by written notice to Customer suspend the provision of Services to Customer.

 

7. Ownership Warranty; Customer Instructions.

Customer warrants that it has full authority to direct the disposition of the Data in accordance with this Agreement. Iron Mountain will perform Services pursuant to the direction of Customer’s agent(s) identified pursuant to Iron Mountain’s standards. Customer releases Iron Mountain from all liability by reason of the destruction or deletion of Data pursuant to Customer’s authorisation.

 

8. Operational Procedures.

Customer shall comply with Iron Mountain’s reasonable operational requirements regarding the Services, including but not limited to, interaction with the Data, network requirements, security, access and similar matters. Customer shall (i) comply with all Documentation; (ii) provide all hardware systems necessary to support the Services; and (iii) implement reasonable security and environmental precautions for use of the Services.

 

9. Intellectual Property; Ownership; Data Disclaimer.

9.1. Intellectual Property. Iron Mountain or its Suppliers are the sole and exclusive owner of all right, title, and interest in and to the Services (excluding any open source third-party software), and all copies thereof including all derivations and modifications thereto including, but not limited to, ownership of all intellectual property rights (collectively, “Intellectual Property”). This Agreement does not provide Customer with title or ownership of the Intellectual Property, but only a right of limited use. Modification of source code will void the warranty set forth in Section 7. Customer agrees to inform Iron Mountain promptly following discovery of any infringement or other improper action with respect to the Intellectual Property. Customer recognises and acknowledges the exclusive right of Iron Mountain and/or its Suppliers in and to all intellectual property and proprietary rights in and to Intellectual Property and that such Intellectual Property is the sole and exclusive property of Iron Mountain and/or its Suppliers. Customer waives its right to contest the validity and/or ownership of such Intellectual Property.
9.2. Ownership of Customer Data. All rights, title, and interest in Data will remain with Customer. This Agreement does not provide Iron Mountain with title or ownership of the Data, but only a right of limited use as set forth in Section 4.3.
9.3. Data Disclaimer. Customer expressly agrees that Iron Mountain does not create, operate, control or endorse any data, information, or third-party products used in conjunction with the services provided hereunder.

 

10. Support Services.

10.1. Support requests are triaged by an Iron Mountain representative assigned to the company support pool. Upon initial review, the support request is categorised and assigned to the appropriate support group. Legal requests will be assigned to the research support group, technical requests will be assigned to the engineering support group and Customer account requests will be assigned to the administration support group.
10.2. Service Level Commitment of Support Services:

10.2.1. Call-In Support. Iron Mountain will provide call-in Support Services during Normal Hours of Operation (currently 8:00 a.m. to 8:00 p.m., Monday through Friday, GMT). In order to receive such call-in support service, Customer must: (A) communicate the error to Iron Mountain using its designated contact persons; and (B) assign a Severity Level and adequately describe and document the reported error.
10.2.2. Online Support. Iron Mountain will provide online Support Services via support website and email during Normal Hours of Operation (currently 8:00 a.m. to 8:00 p.m., Monday through Friday, GMT). In order to receive such online support service, Customer must: (i) communicate the support request to Iron Mountain; and (ii) adequately describe and document the reported error. At any time, Customer may check on an existing support request, view the name of the support group assigned to the request, the severity level and make additional follow on comments using the online support website.
10.2.3. Off-hours Support. Although an Iron Mountain representative may not be available until Normal Hours of Operation, Iron Mountain will provide call-in Support and online support systems to allow Customer to initiate a new support request or check on an existing support request, 24 hours a day, 7 days a week. Customer must follow the same support request procedures set forth in Sections 10.2.1 and 10.2.2.
10.2.4. Severity Level. The following severity levels shall be assigned in accordance with this Section 10 to support requests and Customer shall be able to view and comment on these using the online support website:

    10.2.4.1. 'Code Red' means the reported error is having a material impact on Customer’s ability to access the Software Service that cannot be worked around and that needs to be corrected as soon as reasonably possible. 10.2.4.2. 'Code Orange' means the reported error is having a material impact on Customer’s ability to access the Software Service that can be worked around or deferred for only a limited period of time. 10.2.4.3. 'Code Yellow' means the reported error is degrading business operations in a way that delays or interferes with some non-critical business operations and can be worked around for a reasonable time. 10.2.4.4. 'Code Green' means the reported error is having a minor impact on business operations that can be worked around and a fix should be included in the next Service Update

10.3. Response to Support Request. Response time is calculated from the time that Iron Mountain logs-in a service request in proper form from the Customer's authorised contacts. Service requests received after Normal Hours of Operation will be logged at the beginning of the next business day on which Iron Mountain is normally open for business. Iron Mountain will use reasonable efforts to respond to Support Service requests based on their level of severity, as set forth below:

Severity Level                           Response Time Commitment

Code Red:                                Within two (2) hours

Code Orange                            Within six (6) hours

Code Yellow                             Next Working Day

Code Green                              Reasonable Time

 
11. Limitation of Liability.
11.1. Negligence Based Liability. Iron Mountain shall have no liability for any losses, costs, damages or expenses arising out of or in connection with for loss, destruction or damage to Data, unless and to the extent caused by its failure to exercise such care as a reasonably careful person would exercise under like circumstances.
11.2. Maximum Liability for the Services. Subject to Section 11.6, Iron Mountain’s maximum aggregate liability arising out of or in connection with this Agreement regardless of the cause of action and whether arising in contract, tort (including negligence), warranty, indemnity, or any other legal theory shall be limited to the Fees paid by Customer in the six (6) months immediately preceding any claim.
11.3. No Consequential Damages. Except for liability arising from Customer’s indemnification obligations in this Agreement and subject to clause 11.6, in no event will either Party or Iron Mountain’s Suppliers be liable for any indirect, incidental, consequential, special, punitive, exemplary or similar such losses or damages arising out of or in connection with this Agreement including any loss of profits, interruption of business, or the loss of or cost of recreating any data, however caused, under any theory of liability (whether in contract, tort, warranty, or otherwise), and regardless of whether any remedy set forth herein fails of its essential purpose and even if a Party knew of or should have known of the possibility of such loss or damage.
11.4. Customer Environment. Iron Mountain shall bear no liability to Customer and Customer shall indemnify and hold Iron Mountain harmless from and against any third-party claims (including reasonable legal fees) arising out of or in connection with: (a) Customer’s combination, operation, or use of the Documentation with any product, data, apparatus, or business method that Iron Mountain or its Suppliers did not provide; (b) Customer’s modification of the Documentation; (c) Customer’s distribution, operation or use of the Documentation for the benefit of a third party; or (d) Customer’s failure to use the Services in accordance with the Documentation.
11.5. Customer Indemnification.Customer shall indemnify, defend, and hold harmless Iron Mountain and its Suppliers, Affiliates, subsidiaries, officers, directors and employees from and against any and all third party claims or demands and all liabilities arising out of or in connection with Customer’s breach of the license terms and use restrictions for Subscription Services set forth in Section 4 of this Agreement. Iron Mountain shall provide Customer prompt written notice of any such claim or demand and Customer shall have sole control of the defense and all related settlement negotiations. Iron Mountain shall provide any necessary assistance, information and authority and Customer will reimburse Iron Mountain for any reasonable, documented, out-of-pocket expenses incurred by Iron Mountain in providing such assistance. Iron Mountain shall have the right to participate, at its own expense, in the claim or suit. This paragraph shall survive the expiration or termination of this Agreement.
11.6. Exclusions of Liability. This Section 11 “Limitation of Liability” is not intended to and will not be construed as excluding or limiting any liability, for death or personal injury claims arising from a party’s negligence; and/or fraud or fraudulent misrepresentation; and/or any other matter for which it would be unlawful for such party to attempt to exclude or limit its liability. If applicable law renders any portion of this Section 11 unenforceable or invalid, the remainder of the Section will remain in full force and effect.
 
12. Confidentiality.
“Confidential Information” means any (i) proprietary, confidential, or trade secret information disclosed by a Party to the other Party during negotiations or discussions regarding various business activities under this Agreement, (ii) information regarding this Agreement, and (iii) information regarding Iron Mountain’s processes and procedures (including Documentation); except for information that was previously known to the receiving Party free of any obligation to keep it confidential, is subsequently made public by the disclosing Party, or is disclosed by a third party having a legal right to make such disclosure. Confidential Information shall be used only in the manner and for the purposes contemplated by this Agreement and shall not be intentionally disclosed to third parties without the disclosing Party’s written consent. Neither Party shall obtain any rights in or to the Confidential Information of the other Party. Each Party shall implement and maintain reasonable safeguards designed to protect the other Party’s Confidential Information.
 
13. Data Protection.
The parties shall comply with the provisions and obligations of the then current Data Processing Agreement (“DPA”) as set out at http://www.ironmountain.co.uk/utility/legal/customer-terms-and-conditions. If at any time, Customer considers the information detailed within Appendix 1 of the DPA is incorrect or incomplete, Customer shall promptly notify Iron Mountain Customer Services in writing.
 
14. Force Majeure.
Any failure or delay by either Party in the performance of its obligations under this Agreement shall not be deemed a default or grounds for liability or termination hereunder if such failure or delay is caused by an event beyond the affected Party’s reasonable control, or by acts of God, governmental actions, labor unrest, acts of terrorism or war, unusually severe weather, riots, or fire (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the affected Party shall be excused from any further performance of its obligations pursuant to this Agreement affected by the Force Majeure Event for as long as such Force Majeure Event continues. The affected Party shall promptly notify the other Party in writing of the occurrence of a Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. If a Party’s inability to perform under the Agreement due to a Force Majeure Event persists for a period of sixty (60) days following the Force Majeure Event, the other Party may terminate only the portion of the Agreement or applicable Schedule(s) directly affected by the Force Majeure Event. Notwithstanding any provision to the contrary, a Force Majeure Event shall not excuse payment obligations under this Agreement.
 
15. General Provisions.

15.1. Notices. All notices relating to this Agreement shall be in writing and shall be delivered (i) by overnight courier or hand; (ii) postage prepaid certified or recorded first-class post ; or (iii) electronic transmission. Notices shall be sent to the address of the other Party set forth in the Order Form Agreement and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the post, or upon acknowledgment or receipt of electronic transmission.
15.2. Relationship with Third Parties. No customer, end user or other person or entity not a Party to this Agreement shall be considered a third-party beneficiary of this Agreement, and the Parties do not intend that any terms of this Agreement will be enforceable by any person not a party to it (whether by the Rights of the Third Parties Act 1999) or otherwise.
15.3. Severability. If applicable law or public policy renders any portion of this Agreement unenforceable or invalid, the remainder of the Agreement shall remain in full force and effect. The following provisions shall survive any termination of this Agreement: Section 4, “License”; Section 5.3, “Effect of Termination”; Section 6, “Prices & Payment”; Section 9, “Intellectual Property; Ownership; Data Disclaimer”; Section 11, “Limitation of Liability”; Section 12, “Confidentiality”; Section 15 “General Provisions.”
15.4. Dispute Resolution. The parties shall use all reasonable endeavours to promptly resolve all disputes, controversies or claims of whatsoever kind or nature arising out of or in connection with this Agreement regardless of the cause of action and whether arising in contract, tort (including negligence), warranty or any other legal theory (each, a “Dispute”) in an amicable and equitable manner.
15.5. Choice of Law. This Agreement will be governed by the laws of England and subject to the exclusive jurisdiction of the English courts.

15.6. Assignment. Without the consent of the other Party, neither Party shall assign any right under the Agreement, except Iron Mountain may assign any such right to an Affiliate. The non-assigning Party shall not unreasonably withhold its consent.
15.7. Cumulative Remedies. Unless expressly stated to the contrary in this Agreement, all rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the Parties, whether provided by law, equity, statute, in any other agreement between the Parties or otherwise.
15.8. Waiver. Each Party agrees that the failure of the other Party at any time to require performance by such Party of any of the provisions herein shall not operate as a waiver of the rights of such Party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.
15.9. Restricted Lists. Customer represents and covenants that upon the Effective Date and throughout the term of this Agreement, that: (i) it is not identified on any restricted party lists; or located in countries identified on any restricted country lists; or using the goods or services for any restricted end uses; including those promulgated by the U.S. Departments of State, Commerce and Treasury; and (ii) it is and shall remain compliant with all laws and regulations applicable to its performance under this Agreement, including but not limited to export control and economic sanctions, will not take any action that will cause IM to be in violation of such laws and regulations, and will not require IM to directly or indirectly take any action that might cause it to be in violation of such laws and regulations.
15.10. Purchase Orders. In the event that Customer issues a purchase order to Iron Mountain covering the Services, any terms and conditions set forth in the purchase order which are in addition to or establish conflicting terms and conditions to those set forth in this Agreement are expressly rejected by Iron Mountain.
15.11. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the Parties and supersedes all prior or contemporaneous proposals, oral or written, and all other communications between the Parties relating to the subject matter of this Agreement.