Levy Rental Agreement, Waiver of Liability and Release
Effective Date: June 1, 2019
Please read the agreement below carefully as it sets for the legally binding terms & conditions for your use of our service.
In consideration of Your use of any of the Levy Services (defined below) provided by Levy Inc. d/b/a Levy (“Levy Electric”), Levy requires that You (“Rider,” “You,” or “Your”) (acting for all of Rider’s family, heirs, agents, affiliates, representatives, successors, and assigns) agree to all terms and conditions in this Levy Rental Agreement, Waiver of Liability, and Release (“Agreement”).
The services provided by Levy include (1) Levy mobile application and website, (2) Levy Vehicles (“Vehicle” or “Vehicles”), (3) discretionary charging of the Vehicle by Rider per Section 1.15 below, and (4) all other related equipment, personnel, services, applications, websites, and information provided or made available by Levy (collectively, the “Levy Services”).
This agreement contains releases and assumptions-of-risk provisions and a binding arbitration agreement that limits your legal rights and remedies.
· The Vehicle must be physically locked when left unattended.
· Vehicle must be parked at a lawful parking spot, i.e. the Vehicle cannot be parked on private property or in a locked area or in any other non-public space. We recommend you lock the scooter to bike racks.
· All applicable laws (including, without limitation, those applicable to traffic, pedestrians, parking, charging and electric Vehicles) must be obeyed, including any helmet laws in Your area.
· You must promptly report any damaged or malfunctioning Vehicles to Levy via the Levy mobile application (the “Levy App”), email (firstname.lastname@example.org), or phone (872) 231-2292.
Levy expressly agrees to let, and the Rider expressly agrees to take on, rental of the Vehicle subject to the terms and conditions set out herein. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in US dollars.
1. GENERAL RENTAL AND USE OF VEHICLE.
1.1 Rider is the Sole User.
Levy and the Rider are the only parties to this Agreement. The Rider is the sole renter and is solely responsible for compliance with all terms and conditions contained herein. You understand that when You activate a Vehicle from a location, the Vehicle must be used only by You. You must not allow others to use a Vehicle that You have activated from the location.
1.2 Rider is At Least 18 Years Old.
Rider represents and certifies that Rider is at least 18 years old.
1.3 Rider is a Competent Vehicle Operator.
Rider represents and certifies that he/she is familiar with the operation of the Vehicle, and is reasonably competent and physically fit to ride the Vehicle. By choosing to ride a Vehicle, Rider assumes all responsibilities and risks for any injuries or medical conditions. You are responsible for determining whether conditions, including, without limitation, rain, fog, snow, hail, ice, heat or electrical storms, make it dangerous to operate a Vehicle. You are advised to adjust Your riding behavior and braking distance to suit the weather, visibility, surrounding environment, and traffic conditions.
1.4 Vehicle is the Exclusive Property of Levy.
Rider agrees that the Vehicle and any Levy equipment attached thereto, at all times remain the exclusive property of Levy. You must not dismantle, modify, repair, or deface a Vehicle, any part of a Vehicle, or other Levy equipment in any way.
1.5 Vehicle Operating Hours and Vehicle Availability.
Rider agrees and acknowledges that the Vehicles are may not be available 24 hours a day, 7 days/week, 365 days per year. Vehicles must be rented within the maximum rental time limits set forth below. The number of Vehicles are limited and Vehicle availability is never guaranteed.
1.6 Rider Must Follow Laws Regarding Use and/or Operation of Vehicle.
Rider agrees to follow all laws pertaining to the use, riding, parking, charging, and/or operation of the Vehicle, including all state and local laws and the rules and regulations pertaining to Vehicles in the area where You are operating the Vehicle, including any helmet laws. Rider also agrees to act with courtesy and respect toward others while using the Levy Services.
1.7 Prohibited Acts.
Rider agrees to the following:
Levy recommends against operation of a Vehicle while carrying or holding a briefcase, backpack, bag, or other item that can alter balance or impair safe operation of the Vehicle. If You choose to use such an item, Levy recommends that You ensure the item fits snugly to Your body and does not impede Your ability to operate the Vehicle safely.
You must not place heavy objects on the handlebar of the Vehicle, such as heavy backpacks or bags.
While riding a Vehicle, You must not use any cellular telephone, text messaging device, portable music player, or other device that may distract You from operating the Vehicle safely.
You must not operate a Vehicle while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to operate a Vehicle safely.
You must not carry a second person or child on a Vehicle.
The Vehicle must be parked at a lawful parking spot, in an upright position using the kickstand. The Vehicle cannot be parked on unauthorized private property, in a locked area, or in any other unapproved non-public space. You should not park the Vehicle in heavily trafficked areas if the Vehicle is in danger of being knocked down.
The Vehicle must be parked in a space that is visible.
1.8 Vehicle is Intended for Only Limited Types of Use.
Rider agrees that he/she will not use the Vehicle for racing, mountain riding, or stunt or trick riding. Rider agrees that he/she will not operate and/or use the Vehicle on unpaved roads, through water (beyond normal urban riding), or in any location that is prohibited, illegal, and/or a nuisance to others. Rider agrees that he/she will not use the Vehicle for hire or reward, nor use it in violation of any law, ordinance or regulation.
1.9 Weight and Cargo Limits.
You must not exceed the maximum weight limit for the Vehicle (220 pounds).
1.10 No Tampering.
You must not tamper with, attempt to gain unauthorized access to, or otherwise use the Levy Services other than as specified in this Agreement.
1.11 Reporting of Damage or Crashes.
Rider must report any accident, crash, damage, personal injury, or stolen or lost Vehicle to Levy as soon as possible. If a crash involves personal injury, property damage, or a stolen Vehicle, Rider shall file a report with the local police department within 24 hours.
Rider agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to a stolen or lost Vehicle.
Your automotive insurance policies may not provide coverage for accidents involving or damage to this vehicle. to determine if coverage is provided, you should contact your automotive insurance company or agent
1.12 Rider Responsibility for Vehicle Use and Damage.
Rider agrees to return the Vehicle to Levy in the same condition in which it was rented. Rider will not be responsible for normal wear and tear.
1.13 Electric Vehicle.
The Vehicle is an electric Vehicle that requires periodic charging of its battery in order to operate. Rider agrees to use and operate the Vehicle safely and prudently in light of the Vehicle being an electric Vehicle and all of the limitations and requirements associated therewith. Rider understands and agrees with each of the following:
· The level of charge power remaining in the Vehicle will decrease with use of the Vehicle (over both time and distance), and that as the level of charge power of the Vehicle decreases, the speed and other operational capabilities of the Vehicle may decrease (or cease in their entirety).
· The level of charging power in the Vehicle at the time Rider initiates the rental or operation of the Vehicle is not guaranteed and will vary with each rental use.
· The rate of loss of charging power during the use of the Vehicle is not guaranteed and will vary based on the Vehicle, road conditions, weather conditions, and other factors.
· It is Rider’s responsibility to check the level of charge power in the Vehicle and to ensure that it is adequate before initiating operation of the Vehicle.
· The distance and/or time that Rider may operate the Vehicle before it loses charging power is never guaranteed.
· The Vehicle may run out of charging power and cease to operate at any time during Rider’s rental of the Vehicle, including before reaching Rider’s desired destination.
1.14 Charging of Vehicle.
If the Vehicle runs out of charging power during a rental, Rider shall conclude the ride in compliance with all terms of this Agreement. Alternatively, in Rider’s sole discretion, Rider may charge the Vehicle only by plugging a proper manufacturer-approved charging cord into an outlet that may be lawfully used for such purpose. Rider agrees to follow all laws and rules pertaining to the charging of the Vehicle, including all state and local laws and all public and private rules and regulations pertaining to the area and to the property where Rider is charging the Vehicle. Rider agrees that he/she is responsible for all costs, charges, fees, expenses, penalties, and fines associated with the charging of the Vehicle, and that Levy will not reimburse Rider for such.
2. PAYMENT AND FEES.
Rider may use the Vehicle on a pay per ride basis or as otherwise in accordance with the pricing described in the Levy mobile application, or provided to you by the property that is renting you the vehicle. In each case, fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by Levy. Levy will charge the Rider (through credit, or debit card or through another agreed payment method) the amount of the fees as described in this Agreement.
2.2 Promo Codes.
Promo codes (discounts) are one-time offers and can be redeemed only via the Levy App. Levy reserves the right to modify or cancel discounts at any time. Discounts are limited to one per customer and account and may not be combined with other offers. Discounts are non-transferable and may not be resold.
2.3 Valid Credit Card or Debit Card.
To be registered to use the Levy Services, Rider must provide Levy with a valid credit or debit card number and expiration date. Rider represents and warrants to Levy that Rider is authorized to use any credit or debit card Rider furnishes to Levy. Rider authorizes Levy to charge the card for all fees incurred by Rider. All fees are subject to applicable sales taxes and other local government charges, which may be charged and collected by Levy. If Rider disputes any charge on Rider’s credit or debit card account, then Rider must contact Levy within 10 business days from the end of the month with the disputed charge, and provide to Levy all trip information that is necessary to identify the disputed charge, such as the date of the trip and the approximate starting and ending times of the ride associated with the disputed charge. Rider agrees to immediately inform Levy of all changes relating to the card.
2.4 Damage; Vandalism; Lost Items.
You agree to return the Vehicle to Levy in the same condition in which such Vehicle was rented, normal wear and tear excluded. You agree that you will be responsible for the cost of repairing and replacing any Vehicle that you damage or cause damage to. You may also be responsible for the cost of cleaning any Vehicle if Your use was beyond normal wear and tear.
Additionally, riders will be responsible for theft that could occur throughout the duration of the rental. You agree to keep the vehicle on your persons at all times while on public property. If your rental is multi-day, you agree to secure this vehicle in a safe overnight parking area. See more on theft in section 3.2.
3.1 Safety Check.
Before each use of a Vehicle, Rider shall conduct a basic safety inspection of the Vehicle, which includes inspecting the following: (i) trueness of the wheels; (ii) safe operation of all brakes and lights; (iii) good condition of the frame; (iv) sufficient battery charge power; and (iv) any sign of damage, unusual or excessive wear, or other open and obvious mechanical problem/maintenance need. Rider agrees not to ride the Vehicle if there are any noticeable issues, and to immediately notify customer service to alert Levy of any problems.
3.2 Lost or Stolen Vehicle.
A Vehicle may be deemed lost or stolen if (a) the Vehicle is not returned within 24 consecutive hours after the end of rental period, (b) the Vehicle’s GPS unit is disabled, (c) other facts and circumstances that suggest to Levy in its reasonable, good faith determination that a Vehicle has been lost or stolen. Levy and You agree that the last Rider of a Vehicle shall be responsible for a lost or stolen Vehicle. If Levy deems a Vehicle lost or stolen, Levy shall have the authority to take any and all actions it deems appropriate (with respect to the last Rider of a Vehicle or otherwise), including (without limitation) obtaining restitution and other appropriate compensation and damages and filing a police report with local authorities. Rider agrees the data generated by Levy’s computer is conclusive evidence of the period of use of a Vehicle by a Rider. Rider agrees to report Vehicle disappearance or theft to Levy immediately or as soon as possible. Reimbursement costs for Levy vehicles vary by make & model. For current vehicles in the electric scooter fleet, this ranges from $850 - $1075 (calculated based on unit price paid by Levy Inc, including duties & taxes).
3.3 Helmets; Safety.
Levy will provide helmets on site for all rentals. If rider chooses to use their own helmet, Levy recommends that all Riders wear a Snell, CPSC, ANSI or ASTM approved helmet that has been properly sized, fitted and fastened according to the manufacturer’s instructions. Levy and all other Released Persons (defined below in Section 15) do not represent or warrant the quality or safety characteristics of any helmet, and Rider agrees that none of the Released Persons is liable for any injury suffered by Rider while using any of the Levy Services, whether or not Rider is wearing a helmet at the time of injury. Rider assumes all risk of not wearing a helmet or other protective gear. Rider may need to take additional safety measures or precautions not specifically addressed in this Agreement.
3.4 Vehicle Routes.
Rider agrees that Levy does not provide or maintain places to ride Vehicles, and that Levy does not guarantee that there will always be a safe place to ride a Vehicle. Roads, sidewalks, vehicle lanes, and vehicle routes may become dangerous due to weather, traffic, or other hazards.
3.5 Limitations on Vehicle Rental.
Rider agrees that Levy is not a common carrier. Alternative means of public and private transportation are available to the general public and to Rider individually, including public buses and rail service, taxis, and pedestrian paths. Levy provides Vehicles only as a convenience, and such rental availability is intended to be used only by those persons who are able and qualified to operate a Vehicle on their own and who have agreed to all terms and conditions of this Agreement.
3.6 Limitations on Availability of Levy Services.
Levy makes every effort to provide Levy Services 365 days per year, but does not guarantee that Levy Services will be available at all times, as unforeseen events or other circumstances might prevent Levy from providing the Levy Services. Access to Levy Services is also conditioned on the availability of Vehicles. Levy does not represent or warrant the availability of any of Levy Services or the availability of any Vehicle at any time. Rider agrees that Levy may require Rider to return a Vehicle at any time.
4.1 Termination by Levy.
At any time and from time to time, and without Rider’s consent, Levy may unilaterally terminate Rider’s right to use the Levy Services, in Levy’s sole discretion and without any notice or cause. Rider may terminate Rider’s use of the Levy Services at any time; provided, however, that (i) no refund will be provided by Levy, (ii) the term of this Agreement continues in accordance with this Agreement, and (iii) Rider may still be charged any applicable additional fees in accordance with this Agreement. This Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Rider’s right to use any of the Levy Services, regardless of how the Agreement is terminated.
5.1 Confidentiality of Information; Privacy Policies.
Levy may be contacted by emailing email@example.com.
7. Choice of Law; Dispute Resolution.
This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the State of Delaware, excluding principles of conflicts of laws. For every dispute regarding this Agreement: (i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of the State of Delaware and agrees that those courts have personal jurisdiction over each part.
9. Binding Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
9.1 Initial Dispute Resolution
Rider Support is available via the app to address any concerns you may have regarding your use of a Vehicle and/or this Agreement. The parties shall use their best efforts through this support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating mediation, arbitration, or a lawsuit.
9.2 Binding Arbitration
If the parties do not reach an agreed upon solution through the support process, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to use and rental of a Vehicle, this Agreement, and the parties’ relationship with each other shall be finally settled by binding arbitration administered by JAMS, or alternatively a mutually agreed upon arbitrator or arbitration service, under the applicable commercial arbitration rules for JAMS or the mutually agreed upon arbitration service, excluding any rules or procedures governing or permitting class actions.
The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Levy will pay the additional cost. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
The arbitration will take place in New York, NY or a mutually agreed upon location.
9.4 Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND LEVY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
9.5 Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
9.6 Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: Levy Rides, Inc., 134 Orchard Street, Unit 3. New York, NY 10002. The notice must be sent within 30 days of the effective date or your first use of the Service, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Levy also will not be bound by them.
9.7 Changes to this Section
Levy will provide prior written notice of any changes to this section. Changes will become effective only after prior written notice and will apply prospectively only to any claims arising after the notice period.
For any dispute not subject to arbitration you and Levy agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in New York, NY. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
10. Waiver and Severability.
No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
11. Cumulative Remedies.
All rights and remedies granted under or referred to in this Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.
12. Final Agreement; Modification by Levy.
This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Rider’s consent, Levy may unilaterally amend, modify, or change this Agreement, in its sole discretion. By continuing to use anyof the Levy Services after any amendment, modification, or change, Rider has agreed to be bound by all such amendments, modifications, and changes. Rider must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Agreement, Levy will post a notification on the Website. The pricing set forth on the Website supersedes all pricing set forth in this Agreement.
13. Contract Interpretation.
The headings in this Agreement do not affect the interpretation of this Agreement. “Or” is not to be exclusive in its meaning. “Including” means “including, but not limited to.” Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number. All pronouns include the masculine, feminine, and neuter pronoun forms.
14. Voluntary Execution of this Agreement.
This Agreement is entered into voluntarily, with consideration, and without any duress or undue influence on the part or behalf of Levy. Rider acknowledges that he/she (a) has read this Agreement; (b) understands the terms and consequences of this Agreement, including the releases it contains; and (c) is fully aware of the legal and binding effect of this Agreement.
15. RELEASES; DISCLAIMERS; ASSUMPTION OF RISK.
In exchange for Rider being allowed to use Levy Services, Vehicles, and other equipment or related information provided by Levy, Rider agrees to fully release, indemnify, and hold harmless Levy and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any Municipality (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) with which the operators have contracted with to provide Levy Services, and every sponsor of any of the Levy Services and all of the sponsor’s owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns (collectively, the “Released Persons”) from liability for all “Claims” arising out of or in any way related to Rider’s use of the Levy Services, Vehicles, or related equipment, including, but not limited to, those Claims based on Released Persons’ alleged negligence, breach of contract, and/or breach of express or implied warranty, except for Claims based on Released Persons’ gross negligence or willful misconduct. Such released are intended to be general and complete releases of all Claims.
“Claims” means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorney’s fees, whether incurred at trial, on appeal, or otherwise), damages (including but not limited to, for personal injury, wrongful death, property damage, and injury to rider or to third parties, consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (a) any of the Levy Services, including any of the Vehicles, placement, equipment, maintenance, related information, this agreement or (b) Rider’s use of any of the foregoing.
To the fullest extent permitted by law, and as to Rider’s use of any of the Levy Services, Vehicles, or related equipment, Levy and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. All of the Levy Services, Vehicles, and related equipment are provided “as is” and “as available,” and Rider relies on them at Rider’s own risk.
Rider is aware that Rider’s use of any of the Levy Services, Vehicles, and related equipment involves obvious and not-so-obvious risks, dangers, and hazards that may result in injury or death to Rider or others and damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Risks, dangers, and hazards, include, but are not limited to:
· vehicles and other objects;
· Vehicle or component malfunction;
· road conditions;
· weather conditions;
· failure to follow applicable laws regarding use and/or operation of the Vehicle pursuant to Section 1.7;
· commission of any of the prohibited acts listed in Section 1.8;
· failure to perform the required safety check pursuant to Section 3.1;
· failure to wear a helmet where required by law; and
· negligent acts or omissions by Levy, any other Released Person, Rider, or third party.
Rider is solely and fully responsible for the safe operation of Vehicle at all times. Rider agrees that Vehicles are machines that may malfunction, even if the Vehicle is properly maintained and that such malfunction may cause injury. Rider assumes full and complete responsibility for all related risks, dangers, and hazards.
To the fullest extent permitted by law, this release and hold harmless agreement includes any and all Claims related to or arising from the sole or partial negligence of Levy, the Released Parties, any Municipality or any other party. Rider hereby expressly waives any claims against the Released Parties, any Municipality or any other party which Rider does not know or suspect to exist in his or her favor at the time of use of Levy Services, and expressly waives Rider’s rights under any statutes that purport to preserve Rider’s unknown claims.
RIDER ACCEPTANCE OF AGREEMENT
· I certify that I have read and expressly agree to the terms and conditions of Section 15 Releases; Disclaimers; Assumption of Risk, and I acknowledge that this section limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law. I represent and certify that I am familiar with the operation of the Vehicle, and am reasonably competent and physically fit to ride the Vehicle.
· I certify that I am the Rider, I am 18 years old or over, I will wear a helmet where required by law, I will not ride a Levy with another occupant, I will obey all traffic laws, I will ride at my own risk, and I have read and expressly agree to the terms and conditions set forth in this Agreement.