This Subscription Agreement (this “Agreement”) is by and between Economic Modeling, LLC (“Lightcast”) and the subscriber set forth on the applicable Order Form (“Subscriber”). This Agreement, the applicable Order Form (as defined below), and any other incorporated terms, comprise the entire agreement between the parties on the subject matter. This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use and access the Lightcast Services (as defined below).
1. Order Forms. For purposes of this Agreement, “Order Form” means either a physical or digital Lightcast order form, or a self-service form on a Lightcast website. Each Order Form incorporates the terms of this Agreement. If there is a conflict between the terms of this Agreement and the terms of an Order Form, the terms of this Agreement will control unless the Order Form expressly states that a specific provision of this Agreement will be superseded by a specific provision of the Order Form. Lightcast will provide, and Subscriber will pay for, the Services set out in each Order Form, subject to the terms of the Order Form and this Agreement.
2. Use of the Services.
2.1 Limited License. Subject to the terms and conditions of this Agreement, Lightcast grants to Subscriber a limited, non-exclusive, non-transferable, non-sublicensable right during the term of each Order Form to use the services set forth therein (“Services”). Subscriber’s right to use and access the Services is limited and contingent upon Subscriber’s compliance with the terms of this Agreement.
2.2 Limitations. Subscriber may use the Services solely for its own internal business operations. Except as otherwise explicitly provided in this Agreement and/or applicable Order Form, Subscriber will not, and will not permit or authorize third parties to: (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide the same or similar services to third parties; (c) distribute any part of the data available through the Services to any third party; (d) circumvent or disable any security or other technological features or measures of the Services; (e) reverse engineer any element of the Services, or use the Services or any of Lightcast’s Confidential Information (as defined below) to compete with the Services; (f) modify, adapt or hack the Services to falsely imply any sponsorship or association with Lightcast, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (g) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (h) use the Services to knowingly post, upload, link to, send or store any content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, unlawful, hateful, harassing, violent, threatening, racist, or discriminatory, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (i) use automated means to scrape or extract data from or otherwise interact with the Services.
2.3 Compliance with Laws. Subscriber will use the Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party or violate any third party’s privacy rights.
2.4 Authorized Users. Subscriber will not allow anyone to access the Services using their unique login credentials. Subscriber may provide access to the Services to individuals who have been assigned unique login credentials by Lightcast (each, an “Authorized User”).
2.5 Third-Party Services. Subscriber agrees to comply with third party terms and conditions when using the Services, including those applicable to websites, sites and applications from third parties made available from time to time to Subscriber as part of our Services, including integration partners that may be available through third-party Application Programming Interface (APIs), Snowflake access, and third-party networks. Subscriber agrees and understands that (i) such third parties are not service providers of Lightcast, (ii) Lightcast is not responsible for these third parties, and (iii) Subscriber uses such third parties at its sole risk.
2.6 Right to Suspend Services. Lightcast may suspend Subscriber’s use of the Services if Lightcast reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the Services or to prevent an ongoing violation of this Agreement or any applicable laws or regulations. Lightcast will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the Services to the extent necessary to prevent such unauthorized use or violation.
3. Fees and Payment.
3.1 Fees. Subscriber will pay Lightcast the fees for the Services as specified in each applicable Order Form on a monthly basis. If Subscriber orders additional Services or changes the Services it is receiving, the fees for such additional or changed services will be charged at the then-current pricing for such additional or changed services and commence on the activation date listed in the Order Form. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Fees are non-refundable. There are no refunds or credits for partial months of Services, plan downgrades, or refunds for unused time if Subscriber closes its Account before the end of the Subscription Term of any Order Form. Unless otherwise specified in the Order Form,
3.2 Payment Terms. Unless otherwise specified in the applicable Order Form, Subscriber will be charged monthly in advance. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month (determined and compounded daily from the date due until the date paid) or the highest rate permitted by applicable usury law, whichever is less. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Lightcast to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
3.3 Taxes. Other than net income taxes imposed on Lightcast, Subscriber will bear all applicable taxes resulting from its purchase or use of the Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Order Form or invoice. Applicable taxes will be presented on an invoice unless Subscriber provides a current and valid applicable tax exemption certificate.
4. Term and Termination.
4.1 Agreement Term. This Agreement commences on the date an Order Form is signed and will continue in effect until terminated, as permitted herein. Each Order Form will be valid for the term specified on such Order Form. If no term is specified, the term shall be monthly.
4.2 Free Trial. Subscriber may cancel an Order Form at any time and for any reason within forty-five (45) days of the date it was signed (“Trial Period”). If Subscriber exercises such right during the Trial Period, this Agreement shall terminate, and Subscriber shall owe nothing. If Subscriber does not cancel the Order Form within the Trial Period, Subscriber shall thereafter be charged for the Services on a monthly basis.
4.3 Termination. Either party may terminate this Agreement upon fifteen (15) days written notice. Lightcast may terminate an Order Form or this Agreement at any time if Lightcast reasonably determines that Subscriber is acting or has acted in a way that could present substantial reputational harm to Lightcast or its current or prospective partners or customers.
4.3 Post-Termination Obligations. If this Agreement or an Order Form is terminated for any reason: (a) Subscriber will pay to Lightcast any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; (c) Subscriber’s access to and use of the Services will cease; and (d) Subscriber will not be entitled to a refund of any prepaid fees for unused Services. Upon termination of this Agreement or any Order Form, Lightcast shall have the right to remove Subscriber’s account information and account settings after thirty (30) days, and Subscriber will not be able to recover this data or content.
5. Confidentiality
5.1 Protection of Confidential Information. The receiving party shall: (a) not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information (as defined below) for any purpose outside the scope of this Agreement and (b) take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations hereunder and who agreed to be bound by these obligations of confidentiality and non-disclosure.
5.2 Exclusions to Confidential Information. Confidential Information shall not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of this Agreement by the receiving party; (c) the receiving party rightfully knew or possessed prior to receipt from the disclosing party under this Agreement; (d) is obtained by the receiving party from a third party without a breach of confidentiality obligations; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
5.3 Compelled Disclosure. The receiving party shall not be in violation of its confidentiality obligations for disclosing Confidential Information as required by applicable law or regulation, or in response to a valid order by a court or other governmental body, as long as the receiving party provides the disclosing party (to the extent legally permissible) with prior written notice of the disclosure to permit the disclosing party to seek confidential treatment of that information and will limit such disclosure to what is required by law or legal order.
5.4 Definition. For purposes of this Agreement, “Confidential Information” means non-public information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or to which the other party may have access, which: (a) a reasonable person would consider confidential or (b) is marked “confidential” or “proprietary” or some similar designation by the disclosing party.
6. Warranties and Disclaimer
6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed by an authorized representative and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
6.2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, LIGHTCAST MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. LIGHTCAST EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS. LIGHTCAST RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES OR THIRD-PARTY DATA WILL ALWAYS BE AVAILABLE. LIGHTCAST DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITES NOT WITHIN LIGHTCAST’S REASONABLE CONTROL.
7. Intellectual Property Rights
7.1 Reservation of Rights. Subscriber will not have any rights to the Services except as expressly granted in this Agreement. Lightcast and its licensors retain and reserve all rights, including, but not limited to, Intellectual Property Rights, in and to the Services.
7.2 Subscriber Data. Subscriber acknowledges and authorizes Lightcast’s use of de-identified or aggregated data: (a) to compile usage and performance information related to the Services; (b) to operate, improve, and support the Services; (c) to develop and publish benchmarks and similar informational reports; or (d) for any other lawful purpose; provided that, to the extent such de-identified or aggregated data is personal data Lightcast will use such data only in accordance with the Privacy Policy. Lightcast will not disclose such data externally unless such data is de-identified so that it does not identify Subscriber, Subscriber’s users, or any other person. Lightcast will own all Intellectual Property Rights in such de-identified or aggregated data and any data derived therefrom.
7.3 Feedback. If Subscriber chooses to provide any suggestions, enhancement requests, recommendations or other feedback to Lightcast, Lightcast shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any feedback for its own purposes.
7.4 Definition. For purposes of this Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world, in each case, for their full term and together with any renewals or extensions.
8. Indemnification
8.1 Lightcast Indemnification. Lightcast will, at its expense, defend Subscriber and Subscriber’s officers, directors, employees, agents, permitted successors and assigns from or settle any claim brought by a third party against Subscriber alleging that Subscriber’s use of the Services as permitted herein infringes or misappropriates any Intellectual Property Rights of such third party, and indemnify Subscriber from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. This section states Lightcast’s sole and exclusive liability and Subscriber’s sole and exclusive remedy for the actual or alleged infringement of Intellectual Property Rights.
8.1.1 Infringement Remedy. If Subscriber is enjoined or otherwise prohibited from using the Services or a portion thereof based on an allegation that the Services violate any third party Intellectual Property Rights, or if Lightcast reasonably determines that such prohibition is likely, then Lightcast will, at its sole expense and option: (a) obtain for Subscriber the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If Lightcast determines that the foregoing remedies are not commercially reasonable, then Lightcast may terminate the impacted Order Form, or a portion thereof, and will promptly provide a prorated refund to Subscriber for any prepaid fees received by Lightcast for any Services that have not yet been used or provided upon the effective date of termination.
8.1.2 Exclusions from Obligations. Lightcast will have no obligation under this section for any infringement or misappropriation to the extent that it arises out of or is based upon: (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Services that are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Subscriber for purposes not intended or outside the scope of the rights granted to Subscriber under this Agreement; (d) Subscriber’s failure to use the Services in accordance with this Agreement or any written instructions provided by Lightcast, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Lightcast where such infringement or misappropriation would not have occurred absent such modification.
8.2 Subscriber Indemnification. Subscriber will defend Lightcast and its affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns from any actual or threatened third party claim arising out of or based upon: (a) Subscriber’s breach of any of its obligations under this Agreement; (b) Subscriber’s use of a third-party service; or (c) any of the exclusions stated in Section 8.1.2, and indemnify Lightcast and its affiliates from all damages, costs, and attorneys’ fees finally awarded in any such claim or all amounts that Subscriber agrees to pay to any third party to settle any such claim.
8.3 Indemnification Procedure. The indemnifying party’s obligations herein are subject to receiving: (a) prompt notice of the Claim (provided that the indemnified party’s failure to provide such prompt notice will not release the indemnifying party from its indemnification obligations except to the extent the indemnifying party is materially prejudiced thereby); (b) sole control over the defense and settlement of the Claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnified party may participate in the Claim with its own counsel and at its own expense.
9. Limitation of Liability
9.1 Exclusion of Consequential and Related Damages. NEITHER PARTY OR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE MAXIMUM AGGREGATE LIABILITY OF LIGHTCAST (INCLUDING ITS AFFILIATES) TO SUBSCRIBER (INCLUDING ITS AFFILIATES) OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY SUBSCRIBER TO LIGHTCAST UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL SETTLEMENT OR JUDGMENT IN AN ACTION). THE FOREGOING LIABILITY LIMITATIONS WILL NOT IN ANY WAY LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE.
Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LIGHTCAST TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.3 State Prohibitions. 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. IN THESE STATES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10. Personal Information
10.1 Compliance with Laws. Each party shall comply in all material respects with applicable laws regarding the collection, use and disclosure of personal information. If Subscriber is subject to the General Data Protection Regulation (“GDPR”) or if Lightcast processes personal information on behalf of Subscriber, Lightcast’s Data Processing Addendum shall have precedence over this Section. Subscriber agrees and understands that data may include business contact information which may be considered personal information under applicable laws, and Subscriber is solely responsible for determining if the processing or collection of such personal information by Subscriber is lawful and appropriate under applicable laws or otherwise. Subscriber is solely responsible for ensuring that it has a lawful basis for the processing of personal information, and any subsequent processing. Lightcast does not make any representations or warranties that personal information of individuals may be used for Subscriber’s intended purposes.
10.2 Student Information. All student records provided to Lightcast are subject to the Family Educational Rights and Privacy Act (“FERPA”), may be used only for the purposes authorized in this agreement, and may not be re-disclosed to other persons or parties without specific written authorization from Subscriber.
10.2.1 In the event any student records are provided to Lightcast in this Agreement, Lightcast will perform an institutional service or function for which Subscriber would otherwise use employees, and is hereby designated by Subscriber as a school official having a legitimate educational interest in accessing, using, and tracking student education records, as permitted by the Family Educational Rights and Privacy Act, (FERPA) (34 CFR Part 99.3).
10.2.2 Lightcast understands and agrees to comply with FERPA (20 U.S.C. § 1232g; 34 CFR Part 99) in that the storage and use of student education records by Lightcast will comply with all FERPA requirements.
10.2.3 Lightcast understands and agrees that it remains under direct control of Subscriber with respect to the use and maintenance of the education records. Lightcast understands that the use of educational records is limited in scope and purpose. To access education records there must be a legitimate educational interest and must be essential to complete a function or task under this agreement.
10.2.4 Lightcast understands and agrees that it is prohibited from re-disclosing any personally identifiable information from the education records at any time or for any purpose whatsoever.
10.2.5 Any failure to comply with applicable FERPA requirements by Lightcast or any of its employees will be immediately reported to Subscriber by Lightcast.
11. General Terms
11.1 Assignment. Neither party may assign the Agreement in whole or in part without the other party’s prior written consent (which consent will not be unreasonably denied, delayed or conditioned), except to a successor-in-interest that is not a competitor of the non-assigning party, made in connection with (i) the sale of all or substantially all of the assigning party’s assets; (ii) any change in the ownership of more than 50% of the assigning party’s voting capital stock in one or more related transactions; or (iii) the assigning party’s merger with or acquisition by such successor-in-interest. Any attempted assignment in violation of this restriction is void.
11.2 Notices. Any notice under this Agreement must be sent to Lightcast by email to legal@lightcast.io, with a duplicate copy sent via registered mail (return receipt requested) to: Lightcast, Attention: Legal Department; 232 N Almon St, Moscow, ID 83843. Any notices under this Agreement that are sent to Subscriber shall be sent via email to the current account owner named under Subscriber’s account. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier or sending an email.
11.3 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default of this Agreement on account of, any delay or failure to perform as required by this Agreement (except for Subscriber’s obligations to make payments to Lightcast hereunder) as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
11.4 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Idaho, without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Latah County, Idaho in connection with any action arising out of or in connection with this Agreement.
11.5 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Subscriber and Lightcast as a result of this Agreement or use of the Services.
11.6 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.7 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Lightcast may immediately terminate Subscriber’s use of the affected Services.
11.8 Entire Agreement. This Agreement, including the applicable Order Forms, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous representations and oral and written communications regarding these matters. Lightcast will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, invoice, acceptance, purchase order, confirmation, correspondence, or otherwise, regardless of Lightcast’s failure to object to such terms, provisions or conditions. This Agreement may be executed in multiple counterparts and may be signed electronically or via facsimile.
11.9 Survival. Sections 5-11 will survive any termination of this Agreement.