ExpeData, LLC Terms of Service
March 25, 2020
By accepting these Terms of Service by clicking a box indicating your acceptance, you agree to the terms set forth herein. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms of Service, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms of Service, you must not accept these Terms of Service and may not use the Service (as defined below).
You may not access the Service if you are our direct competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
Subject to the above limitation, we invite you to access our web sites and use our Service, but please note that this invitation is subject to your review of and consent to the terms and conditions set forth in this document and in certain other policies, guidelines and other terms or conditions that may be presented to you from time to time at other locations on our web sites in connection with specific service offerings (all of which may be updated from time to time and are collectively referred to as our "Terms of Service"). You are not required to accept these Terms of Service, but if you choose not to accept them, you do not have any right to access or use our Service. If you do access our web site and use our Service, your use shall be deemed an acceptance of the Terms of Service and you will be a party to a legally binding contract with ExpeData, LLC ("ExpeData," "we," and sometimes "us"). Of course, you may also be required or elect to enter into a separate written agreement or click "accept" or "agree" to become a party to another contract with ExpeData (a "Separate Agreement"), and these Terms of Service shall not be considered to supersede the specific contractual terms of the Separate Agreement. If there is any contradiction between the terms of the Separate Agreement and the Terms of Service, then the terms of the Separate Agreement shall take precedence over the contradictory terms in the Terms of Service with respect to the subject matter of such Separate Agreement.
You may wish to save a copy of these Terms of Service for your records. In any event, be sure to regularly check these Terms of Service for any updates or other changes, which shall be legally binding upon you when we post them, whether or not we provide you any other notice of such changes. The then-applicable Terms of Service will be posted at and we will indicate the effective date of each update at the top of the Terms of Service. Your continued use of the Service after any update will be deemed an acceptance of and your agreement to be bound by, the new Terms of Service.
1. Service Description
The Service consists of products, computer programs, widgets, services and web sites hosted or made available by ExpeData, which you may use for capturing, searching, storing, synchronizing, recognizing, and transmitting any number of forms, templates, documents (or eContracts), images, audio files, electronic signatures (or signatures) and other data elements on multiple computer and network platforms, now known or hereafter developed (collectively, the "Service").
2. Free Trial
If you register for a free trial and if no other individuals at your business has received a free trial for business use, we will make one or more services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable service or (b) the start date of any purchased services ordered by you. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms of Service by reference and are legally binding.
Any data you enter using the Service during your free trial will be permanently lost unless you purchase a subscription to the same service as those covered by the trial, purchase upgraded services, or export such data, before the end of the trial period.
Notwithstanding anything in the Terms of Service to the contrary, during the free trial the Service is provided "as-is" without any warranty.
3. Use of Service
Subject to the terms and conditions, ExpeData grants you a limited, non-exclusive license to utilize the Service so long as (i) you are of legal age to form a binding contract and (ii) you are not barred from accessing or using the Service under applicable law. In order to access and/or use the Service, you may be required to provide current, accurate, identification, contact and other information as part of the registration process and/or continued use of the Service, and you will be responsible for maintaining the accuracy and completeness of such information. You may also be provided with an account, username, password and/or an email address to access or use the Service, or to enable another to access, use and modify your information (the "Account Information"). You are responsible for maintaining the confidentiality of your Account Information and, accordingly, will be fully responsible for all activities that occur under your account, including activities of others to whom you have provided your Account Information. You agree to immediately notify ExpeData of any unauthorized use of your Account Information, account or any other breach of security. We will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your Account Information secure.
To enable parties to rely upon signed documents between them, you agree and consent, in using our Services or by submitting an electronically signed document, to the means we use to secure electronic data and electronic signatures for any document signed through us. Your use of the Service is subject to your acknowledgement and agreement to the following: (a) you are solely responsible to comply with all applicable laws, including electronic signature law; (b) the Services allow execution of documents between consenting parties. ExpeData cannot be construed to be party to any document processed by the Service, and ExpeData makes no representation or warranty regarding any document affected by any signed document; (c) you are solely responsible for your templates, documents and related content, quality and format of any document; (d) ExpeData assumes no responsibility for ensuring any document is signed within a given period of time or at all; (e) ExpeData is not responsible for any document retention requirements or stored under any applicable laws, regulations or legal or administration procedure; (f) ExpeData is not responsible for or liable to produce any of your documents or other related document data to any third parties; and (g) you agree to the Electronic Records and Signature Disclosure (<insert link to ERSD>) terms included in the Service as part of electronic signatures.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as costs of computing devices, internet service provider charges and airtime charges).
You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the service available to any third party, other than as expressly permitted by these Terms of Service; (b) use the Service to process data on behalf of any third party; (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with ExpeData, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) use the Service in any unlawful manner, including but not limited to violation of any person's privacy rights, infringing any person's or entity's intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law; (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (g) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, trojan horses, time bombs, or any other similar harmful software; or (h) try to use, or use the Service in violation of these terms.
If you receive a claim that the Software or Service infringes patent, copyright or other intellectual property of a third party, you shall notify ExpeData promptly in writing and give ExpeData information, assistance and exclusive authority to evaluate, defend and settle such claim. ExpeData shall then, at its own expense and option: (i) settle such claim; (ii) procure for you the right to use the Software or Service; (iii) replace or modify the Software or Service to avoid infringement; (iv) terminate the license granted herein and provide a refund of fees, less a reasonable amount for usage, subject to the limitations contained herein; or (v) defend against the infringing claim.
In providing you the Service, we shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of your data and the personal data of your end-users. These safeguards include encryption of your data in transmission (using SSL or similar technologies).
Notwithstanding the foregoing, you acknowledge that due to the public nature of the Internet, there is no guarantee that these safeguards will be sufficient. Accordingly, ExpeData is not liable for any failure of these safeguards or for any transmission you may make.
5. Proprietary Rights, Licenses and Limitations
You acknowledge and agree that ExpeData (and any licensors to ExpeData) own(s) all legal right, title and interest in and to the Service, including, without limitation, all software comprising a part of the Service that is either hosted on ExpeData's servers or deployed by you or a third party (the "Software"), and all intellectual property rights therein (whether registered or not and wherever existing in the world). You further acknowledge and agree that the rights in the Service, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms of Service and any Separate Agreement. Except for the limited license rights specifically granted to you in these Terms of Service (and any rights expressly granted to you in a Separate Agreement), ExpeData and its suppliers own and shall retain all right, title and interest, including, without limitation, intellectual property rights, in and to the Service and all Software utilized therein (and all copies thereof and related materials that are delivered or made available to you with the Service). You shall be bound by all copyright notices and additional legal terms and conditions found in any "Read Me" file, release note or leaflet that accompanies the Software or is otherwise embedded in the Software, which are incorporated herein and shall be deemed Terms of Service.
In order to enable ExpeData to operate the Service, we must obtain from you certain license and other rights to the content you submit (so that our processing, maintenance, storage, technical reproduction, back-up and distribution, and related handling of your content does not infringe applicable copyright and other laws). Accordingly, by using the Service and posting content, you grant ExpeData a license to display, perform and distribute your content, and to modify (for technical purposes) and reproduce such content to enable ExpeData to operate the Service. (You also agree that ExpeData has the right to elect not to accept, post, store, display, publish or transmit any content in our sole discretion.) You agree that these rights and licenses are royalty free, irrevocable and worldwide, and include a right for ExpeData to make such content available to, and pass these rights along to, others with whom ExpeData has contractual relationships related to the provision of the Service, solely for the purpose of providing such Services, and to otherwise permit access to your content to third parties if ExpeData determines such access is necessary to comply with its legal obligations.
Except for the limited license and other rights granted in these Terms of Service, you retain all of the rights you had in your content before you submitted it; unless you elect to enable others to view or have access to the content you submit to the Service, no one else should see your content without your consent.
Each of us shall maintain all right, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). The rights granted to you to use the Service under these terms do not convey any additional rights in the Service, or in any intellectual property rights associated therewith. ExpeData shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you. ExpeData®, and ExpeData's other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of ExpeData (collectively, "Marks"), and you may only use such Marks to identify yourself as a account and user of the Service; provided you do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent ExpeData, its services or products.
6. Billing, Plan Modifications and Payments
6.1 Billing and Payments.
The Service is made available on a pay-as-you-go basis for a contractual term and is charged at the start of your elected subscription term (generally monthly or annually). If you do not provide your credit card or other payment information to ExpeData before the expiration of any free trial period, your account will be suspended until payment information and charge authorization are provided. You will be promptly billed and, if applicable, any trial period will terminate. Thereafter, your subscription will renew automatically based on your plan's renewal cycle. If the account owner (as defined in the sign-up procedure) needs to change credit card information (e.g., upon card renewal) during a subscription term, the account owner will need to update the Account Information section in Subscription.
6.2 Modifying Your Subscription.
If you choose to upgrade or downgrade your plan (monthly or annually) or number of devices during your elected subscription period, any reduction or increase in cost is effective immediately and the billing cycle adjusted based on the modification date. Regardless of your billing cycle, there are no refunds or credits for partial periods (monthly or annually) of Service, plan downgrades, or refunds for unused time if you cancel your account before the end of your subscription period. No exceptions will be made in order to treat everyone equally and keep our administrative costs low for the ultimate benefit of our account base. Downgrading your plan level may cause the loss of content, features, or capacity of your account and ExpeData does not accept any liability for such loss. ExpeData reserves the right to contact you about special pricing if you maintain an exceptionally high number of end-users, an unusually high monthly transaction ratio per device or other excessive stress on the Service.
6.3 Overdue Charges.
If any charges are not received from you by the due date, then at our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) we may condition future subscription renewals on payment terms shorter than those originally provided.
6.4 Suspension of Service and Acceleration.
If any amount owing by you under this or any other agreement for our Service is ten or more days overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and/or suspend our Service to you until such amounts are paid in full.
6.5 Payment Disputes.
We shall not exercise our rights under section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Unless otherwise stated, you are responsible for any taxes (other than ExpeData's income tax) or duties associated with the sale of the Service, including any related penalties or interest (collectively "Taxes"). If ExpeData is obliged to collect or pay Taxes, the Taxes will be invoiced to you.
7. Cancellation and Termination
The account owner is responsible for canceling your account, and can cancel the account by modifying the subscription in Subscription. There are no other means of canceling your account. Once you cancel your account you will lose access to all of your content, and we reserve the right to delete all such content in the normal course of operation. This content cannot be recovered once your account is cancelled. If you cancel the Service before the end of your current paid-up subscription period, your cancellation will take effect immediately and you will not be charged again or receive any outstanding credit.
ExpeData reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any/all current and future use of the Service, suspend or terminate your account or any part thereof (or your use of the Service), and remove and discard any of your content within the Service if we believe that you have violated these terms. ExpeData will use all reasonable efforts to contact you directly via email to warn you prior to suspension or termination of your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of your use of Service, and may be referred to law enforcement authorities. ExpeData shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service.
You may discontinue your use of the Service at any time, for any or no reason. ExpeData may also terminate the Service, or your access to or use of the Service or your account, with or without notice. Reasons for ExpeData terminating your account or the Service pursuant to this provision include, without limitation: (a) breach or violation of these Terms of Service or any Separate Agreement, (b) your request or self-effecting account deletion, (c) an extended period of inactivity (determined in ExpeData sole discretion), (d) your nonpayment of any fees or other sums due ExpeData or any other party related to your use of the Service, (e) requests by law enforcement or other government agencies, (f) the discontinuance or material modification to the Service (or any part thereof), or (g) unexpected technical or security issues or problems. In the event of any termination, we will close your account and you will no longer be able to retrieve content contained in that account or otherwise use the Service.
8. Service Components
We retain the right, at our sole discretion, to implement limits to the nature or size of storage available to you, the number of transmissions and email messages, the nature or size of any index information, the nature of, or your continued ability to access or distribute, your content and other data, and impose other limitations at any time, with or without notice. You acknowledge that a variety of ExpeData actions may impair or prevent you from accessing your content or using the Service at certain times and/or in the same way, for limited periods or permanently, and agree that ExpeData has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to you, any content.
ExpeData may from time to time engage certain affiliates or other third parties to provide all or part of the Service to you, and you hereby acknowledge and agree that such third party involvement is acceptable. Further, you acknowledge that in using the Service to send electronic communications (including but not limited to email and uploading content, and other internet activities), you will be causing communications to be sent through computer networks owned by ExpeData and third parties that are located in Ohio and other locations in the United States and other countries and that, as a result, your use of the Service will likely result in interstate data transmissions. You understand that ExpeData, in performing the required technical steps to provide the Service to our users, may make such changes to your content as are necessary to conform and adapt that content to the technical requirements of connecting networks, devices, services or media.
ExpeData may from time to time include as part of the Service computer software supplied by third parties, including (but not limited to) third party software, which is utilized by permission of the respective licensors and/or copyright holders on the terms provided by such parties. ExpeData expressly disclaims any warranty or other assurance to you regarding such third party software.
You agree to indemnify and hold ExpeData, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to your use of any of the Service, any violation of these Terms of Service or any other actions connected with your use of the Service (including all actions taken under your account). In the event of such claim, we will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
10. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPEDATA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(B) EXPEDATA DOES NOT WARRANT THAT (I) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EXPEDATA OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
(E) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY'S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, DATA BREACH, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
(F) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, EXPEDATA'S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF EXPEDATA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
(G) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, EXPEDATA'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
(H) YOUR USE OF ANY ELECTRONIC DOCUMENT SIGNING PROCESSES EMBODIED WITHIN THE SERVICE IS AT YOUR OWN RISK. BY USING THE
SERVICE FOR ELECTRONIC DOCUMENT SIGNING, YOU ARE ACKNOWLEDGING THAT EXPEDATA RUSHED THIS FEATURE INTO PRODUCTION IN RESPONSE TO THE COVID-19 CRISIS AND YOU ARE ACCEPTING ALL RISKS RELATED TO USE OF THIS COMPONENT OF THE SERVICE.
You agree that we may provide you with notices hereunder by email, regular mail or postings on the web site(s) related to the affected Service, in our discretion, and that we may rely upon the contact information you have provided as being accurate, complete and current.
Except where these Terms of Service or any Separate Agreement specifically provide for use of a different means or address for notice, any notice hereunder to ExpeData must be delivered by email to email@example.com. This email address may be updated as part of any update to these Terms of Service.
12. Government Rights
If used or acquired by the United States Government, the Government acknowledges that (a) the Software product constitutes "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (b) the Government's rights are limited to those specifically granted pursuant to this EULA. The contractor/manufacturer is ExpeData, LLC, 7810 McEwen Road, Suite A, Dayton, Ohio 45459
You acknowledge that the export, and use of certain hardware, software, and technical data provided hereunder is regulated by the United States and other governments and agree to comply with all applicable laws and regulations. You agree not to export or re-export directly or indirectly any equipment, software, software releases or related technical data or information without first obtaining any required licenses(s) or governmental approvals.
14. General Terms
(a) These Terms of Service constitute the entire agreement between you and ExpeData and governs your use of the Service, except, and then only to the extent that you have entered into a Separate Agreement. These Terms of Service, as in effect from time to time, supersedes any prior agreements or earlier versions of these Terms of Service between you and ExpeData for the use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party's terms and conditions applicable thereto, and these Terms of Service shall not affect your legal relationship with such third party.
(b) You acknowledge and agree that each affiliate of ExpeData shall be a third party beneficiary to these Terms of Service and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms of Service which confers a benefit on (or provides rights in favor of) them. Other than this, no other person or company shall be a third party beneficiary to these Terms of Service.
(c) These Terms of Service and the relationship between you and ExpeData shall be governed by the laws of the state of Ohio without regard to its conflict of law provisions. You and ExpeData agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Montgomery, Ohio. Notwithstanding this, you agree that ExpeData shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any applicable jurisdiction.
(d) The failure or delay by ExpeData to exercise or enforce any right or provision of these Terms of Service or rights under applicable law shall not constitute a waiver of any such provisions or rights. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the agreement remain in full force and effect.
(e) You agree that regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of or related to use of the Service or otherwise under these Terms of Service must be filed within one (1) year after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
(f) The section headings in these Terms of Service are for convenience only and have no legal or contractual effect.