Master Service Agreement (MSA)
This agreement is for individuals or individuals acting on behalf of entities (such as organizations) who create a GoXpro Instance.
There will be one Master Subscription Agreement entered into for each GoXpro Instance that sets out the terms under which the GoXpro Instance is provisioned for You or Your company's use.
You must accept this Agreement as a pre-requisite to creating any GoXpro Instance on any basis, whether free, paid, donated or otherwise.
For the avoidance of doubt, this agreement replaces and supersedes the previous GoXpro "Terms and Conditions" agreement, and in the absence of any express agreement to the contrary, any other agreements between You and GoXpro. By accepting this agreement, by having previously accepted the GoXpro Terms and Conditions agreement, by clicking a box indicating Your acceptance, by issuing purchase order, by paying money to Us, or simply by using Our Services, You indicate Your acceptance of this Agreement and are bound to it.
This Master Services Agreement governs a customer’s acquisition and use of Services from GoXpro. Capitalised terms have the definitions set forth herein.
If a Customer registers for a free trial of Services or for free Services, the applicable provisions of this agreement will also govern that free trial or those free services.
Acceptance by the Customer of this Agreement (and any update of this Agreement issued by GoXpro from time to time) will be deemed to have occurred on the earlier of: (1) the Customer clicking a box indicating acceptance through a GoXpro website (“Self Service Customer”) (2) executing this Agreement or (3) the Customer accessing and using free services. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.
The Customer is an individual or organisation (as the case may be) that desires to obtain access to the Services with respect to certain of its skills management requirements and where GoXpro wishes to provide the Services to Customer, each on the terms and conditions set out in this Agreement.
In consideration of the mutual covenants and promises set out in the Agreement the parties agree as follows:
1.1 Purpose. This Agreement sets out the terms and conditions under which GoXpro agrees to provide certain hosted “Software as a Service” (“Subscription Services”) for certain software applications (each such application together, a “Platform”) to Authorized Users (as that term is defined in clause 2.2). Details of the Subscription Services and, if applicable, other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) may be further set out in an order form (“Order Form”) and may also be further set out in a statement of services (“Statement of Work”) (Order Forms and Statements of Professional Services are sometimes referred to jointly as a “Statement of Services”).
1.2 The Services - Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, GoXpro shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to each Platform, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, GoXpro hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non- transferable, worldwide license to access and use each Platform, solely for the business purposes as set out in this Agreement or a Statement of Services (if applicable).
1.4 Professional Services. Each applicable Statement of Work shall specify and further describe the Professional Services (if any) to be provided in accordance with the representations and warranties set out in this Agreement, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
1.5 Changes to Platform. GoXpro may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of GoXpro’s products or services to its customers, (b) the competitive strength of, or market for, GoXpro’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. PLATFORM ACCESS AND AUTHORIZED USER
2.1 Administrative Users. During the configuration and set-up process for each Platform, Customer will select an available identifier that will uniquely identify the Customer's Instance as well as an administrative Email address and password for Customer’s GoXpro account. GoXpro reserves the right to refuse registration of or cancel identifiers and passwords it deems inappropriate.
2.2 Authorized Users. Customer may allow such number of Customer’s employees and/or independent contractors as agreed between the parties from time to time to use the applicable Platform on behalf of Customer as “Authorized Users.”.
2.4 Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its GoXpro account, passwords (including but not limited to administrative and user passwords) and files. GoXpro is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords or any other neglect or mismanagement by Customer in relation to its GoXpro accounts.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1 Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of GoXpro, and Customer will comply with Section 4 with respect thereto.
3.3 Cooperation. Customer shall provide all cooperation and assistance as GoXpro may reasonably request to enable GoXpro to exercise its rights and perform its obligations under, and in connection with, this Agreement, as is necessary for GoXpro to perform the Services in accordance with this Agreement.
3.4 Training and Education. Customer shall use commercially reasonable efforts to ensure that Customer Users are trained in the proper use of each Platform in accordance with applicable manuals, instructions, specifications and documentation provided by GoXpro from time to time.
3.5 Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party ( “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business ( “Confidential Information”). Confidential Information of GoXpro includes non-public information regarding features, functionality and performance of each Platform and Software. Confidential Information of Customer includes non-public data provided by Customer to GoXpro to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for Customer (“Customer Data). The terms and conditions of this Agreement, including all pricing and related metrics, are Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purpose whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
4.7 General Data Protection Regulation (GDPR). GoXpro and Customer acknowledge and agree that to the extent the Customer Data comprises any personal data, that the Customer is the ‘data controller’ or ‘controller’ and that GoXpro is the ‘data processor’ or ‘processor’ (as such terms are defined in Data Protection Laws). Some of the Services may require a transfer of Customer Data to countries outside the European Union (EU) and/or may require access to Customer Data from outside the EU by GoXpro or a sub-processor of GoXpro. These countries may not have equivalent data protection laws to the EU.
The provisions of the Data Processing Addendum that can be found here: https://www.goxpro.com/data-processing-addendum-dpaqh4si1do shall govern the processing of any Personal Data by GoXpro during the provision of the Services and/or the performance of its obligations under this Agreement and contains details of any Services to the extent that it requires a transfer of Customer Data outside the EU. As the ‘data controller’ the Customer warrants that it is responsible for ensuring that the Customer has a lawful basis for processing personal information and has obtained the necessary consents form data subjects.
4.8 Data Storage. The Customer acknowledges that the technical processing and storage of Customer Data is fundamental to the provision of the Services. The Customer expressly consents to GoXpro storage of Customer Data and the back-up of that data onto various media in order to ensure the availability and integrity of the Services. The Customer grants GoXpro a limited nonexclusive non-transferable licence to copy, store, record, transmit, maintain, display, view, print or otherwise use Customer Data to the extent necessary to provide the Services to the Customer. The Customer agrees that the licence to store and maintain Customer Data shall survive the termination of this Agreement for a maximum of 180 days.
5. PROPRIETARY RIGHTS
5.1 Ownership. Customer shall own all right, title and interest in and to the Customer Data. GoXpro shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all its right, title and interest in such Services IP to GoXpro.
5.2 Customer Data License. Subject at all times to GoXpro complying with Section 4.6, Customer hereby grants to GoXpro a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and the Services.. For the avoidance of doubt, GoXpro may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, de- identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by GoXpro. Customer acknowledges that it will not have access to Customer Data through GoXpro or any Platform following the expiration or termination of this Agreement but the Customer can request in writing that GoXpro provide an export of Customer Data on termination.
5.3 No Other Rights. No rights or licenses are granted except as expressly set out in this Agreement.
6. FEES & PAYMENT
6.1 Fees. Customer will pay GoXpro the fees described in the GoXpro website for Self Service Customers or an Order Form or Statement of Work as applicable (“Fees”).
6.2 Renewal Fees. Unless terminated earlier in accordance with the terms of this Agreement, upon the commencement of each Renewal Term, (i) Customer shall be liable to GoXpro for payment of a Renewal Fee. Customer hereby consents to GoXpro charging any such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide any further notice or receive any further consent. Each “Renewal Fee” shall equal the Service Fee or Renewal Fee, as applicable, due to GoXpro during previous term as may be increased in GoXpro’s sole discretion by a percentage up to the Fee Increase Percentage either as specified on the applicable Order Form or if there is no applicable Order Form, an increase as determined by GoXpro; provided, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Service Fee shall be prorated to one (1) year. Notwithstanding the foregoing, if Customer is not liable to GoXpro for a Service Fee under an Order Form, no Renewal Fees shall be charged to Customer with respect to such Order Form.
6.3 Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse GoXpro for reasonable out-of-pocket expenses incurred by GoXpro in connection with performing the Professional Services and that have been approved in writing in advance by the Customer.
6.4 Payment. GoXpro may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by GoXpro thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Statement of Services). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, GoXpro may suspend or terminate Services in the event of payment delinquency.
6.5 Payment Disputes. If Customer believes that GoXpro has billed Customer incorrectly, Customer must contact GoXpro no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to GoXpro’s customer support department or the applicable Account Manager.
6.6 Taxes. Customer shall pay, and shall be labile for, all taxes relating to GoXpro’s provision of the Services hereunder including, for the avoidance of doubt, any applicable consumption taxes.
6.7 No Deductions or Setoffs. All amounts payable to GoXpro hereunder shall be paid by Customer to GoXpro in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
6.8 Subpoena Expenses. If GoXpro is required to provide information in response to a subpoena related to Customer’s account, then GoXpro may charge Customer for GoXpro’s reasonable costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of each Statement of Services shall begin on the applicable “Services Effective Date” and continue for the initial term agreed between Customer and GoXpro (“Service Term”). The Agreement will renew for additional applicable terms unless written notice of non-renewal is received by the other party at least ninety (90) days prior to the expiration of the then current term.
7.2 Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice or when the Customer deletes its GoXpro instance (whichever is the earlier) if the other party fails to pay any amount when due; otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party. This Agreement may also be terminated by a party if the other party becomes insolvent, bankrupt, goes into liquidation, has a receiver or liquidator appointed or a mortgagee goes into possession of any of its assets or becomes subject to any form of external administration voluntarily or involuntarily.
This Agreement will terminate if GoXpro issues an updated Agreement and Customer does not agree to be bound by the terms of the updated Agreement.
GoXpro may terminate this Agreement if a only a free user account is created pursuant to this Agreement it is not accessed for 6 months.
7.3 Effect of Termination. Upon termination of the Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and either destroy or return all materials relating to the Subscription Services and all Confidential Information of GoXpro and GoXpro shall immediately cease providing the Professional Services. If (i) GoXpro terminates this Agreement pursuant to the second sentence of Section 7.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.
7.4 Survival. Sections 3.1, 4–6, 7.2, 7.4, and 9–17 shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.2 Disclaimer. Except as expressly provided herein or in a statement of service, GoXpro does not warrant that access to the platforms, software or services will be uninterrupted or error free, nor does GoXpro make any warranty as to the results that may be obtained from use of the services. Further, except as set out in the GoXpro Service Level Agreement, which can be found at: https://www.goxpro.com/service-level-agreement-slaj8ivwrfo, GoXpro makes no representations or warranties with respect to services provided by third party technology service providers relating to or supporting a platform, including hosting and maintenance services, and any claim of customer arising from or relating to such services shall, as between GoXpro and such service provider, be solely against such service provider. The platforms, software and services are provided “as is,” and GoXpro disclaims all warranties, express or implied, including, but not limited to, implied warranties of non-infringement, merchantability and fitness for a particular purpose, to the maximum extent permitted by applicable law.
9.1 Indemnification by GoXpro. GoXpro will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any Platform or Service (i) not supplied by GoXpro, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by GoXpro, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, a Platform is held by a court of competent jurisdiction to be or is believed by GoXpro to be infringing, GoXpro may, at its option and expense (a) replace or modify such Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using such Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Platform. This Section states Customer’s sole and exclusive remedies for claims of infringement.
9.2 Indemnification by Customer. Customer will defend against any claim, demand, suit or proceeding made or brought against GoXpro by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a non-GoXpro application provided by Customer, or (c) the combination of a Non-GoXpro application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services in an unlawful manner or in violation of this Agreement or the Statement of Services, and will indemnify from any damages, attorney fees and costs finally awarded against GoXpro as a result of, or for any amounts paid by GoXpro under a settlement approved by Customer in writing of, a claim against GoXpro, provided GoXpro (a) promptly gives Customer written notice of the claim against GoXpro, (b) gives Customer sole control of the defense and settlement of the claim against GoXpro (except that Customer may not settle any claim against GoXpro unless it unconditionally releases GoXpro of all liability), and (c) gives customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a claim against GoXpro arises from a breach of this Agreement or Statement of Works by GoXpro.
10. LIMITATION OF LIABILITY
To the maximum extent permitted by law, Customer acknowledges and agree that it assumes full responsibility for any loss that results from the use of the Service, including any downloads from a GoXpro website.
In no event shall (i) either party’s liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability exceed in the aggregate the total fees paid or owed by customer and vendors hereunder during the twelve (12) months immediately preceding the date of the event giving rise to the claim (such amount being intended as a cumulative cap and not per incident), and (ii) either party have any liability to the other for any lost profits or revenues or for any indirect, incidental, consequential, cover, special, exemplary or punitive damages, however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing limitations and disclaimers shall not apply to the extent prohibited by applicable law.
For the avoidance of doubt, in no instance will GoXpro be liable for any losses or damages Customer suffers if it uses the Services in violation of this Agreement, regardless of whether GoXpro terminates or suspend a user account of this Agreement due to such violation.
GoXpro is not responsible for the behaviour of any third parties, agencies, linked websites, including third-party applications, products, or services for use in connection with the Service (each, a “Third-Party Integration”). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration.
11. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed in all respects by the laws of the New South Wales, Australia without giving effect to its rules relating to conflict of laws and the parties submit to the non-exclusive jurisdiction of the courts having jurisdiction in that State. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement.
GoXpro may, from time to time, host and/or maintain a Platform using a third party technology service provider and Customer acknowledges that GoXpro cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
Customer agrees that GoXpro may identify Customer as a customer and use Customer’s logo, imagery and trademark in GoXpro’s promotional materials. Customer may request in writing that GoXpro stop doing so but the Customer acknowledges that it may take GoXpro up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that GoXpro may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form. All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
15. FORCE MAJEURE
GoXpro is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. GoXpro may sublicense any or all its obligations hereunder. For the avoidance of doubt, a third-party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement.
17. GENERAL PROVISIONS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.