Terms & Conditions of Supply
(a)These terms and conditions (Standard Terms) form part of any agreement to supply Goods to the Customer by Arrotex.
(b)Time is of the essence in respect of all the Customer’s payment obligations.
(a)“Agreement” means these Standard Terms together with any application for credit by the Customer.
(b)“Approved Credit Limit” means the dollar amount specified by Arrotex in its acceptance of the Customer’s credit application (as amended by notice to the Customer in writing from time to time).
(c)“Arrotex” means Arrotex Pharmaceuticals Pty Ltd ACN 605 552 234 and each of its Related Body Corporates (including Apotex Pty Ltd (ABN 52 096 916 148) and Arrow Pharmaceuticals Pty Ltd (ABN 33 605 909 911), agents, successors and assigns (as applicable).
(d)“Corporations Act” means the Corporations Act 2001 (Cth).
(e)“Customer’” means the person described as “the customer” in the applicable application for credit or the person to whom Arrotex otherwise supplies Goods from time to time.
(f)“Force Majeure Event” means any act, event or circumstance, other than a lack of funds:
(i) as a direct or indirect result of which, the party relying on it is prevented from or delayed in performing any of its obligations under the Agreement; and
(ii)that is beyond the reasonable control of that party.
(g)“Goods” means any goods supplied by Arrotex to the Customer.
(h)“Government Agency” means any government or any public, statutory, governmental (including a local government), semi-governmental, local governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute.
(i) “GST” has the meaning given to that term in the GST Act.
(j)“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(k)“Guarantor” means the guarantor(s) specified in any application for credit entered into by the Customer (if any).
(l)“Insolvency Event” means, in relation to a party to the Agreement, any one or more of the following events or circumstances occurring in relation to the party (or any person comprising the party):
(i)being in liquidation or provisional liquidation or under administration;
(ii)having a controller (as defined in the Corporations Act) or analogous person appointed to it or any of its property;
(iii)being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;
(iv)being unable to pay its debts or being otherwise insolvent;
(v)becoming an insolvent under administration, as defined in section 9 of the Corporations Act;
(vi)entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors; and
(vii)any analogous event or circumstance under the laws of any jurisdiction.
(m)“Intellectual Property Rights” means all present and future intellectual and industrial property rights in the Goods conferred by Law and wherever existing, including:
(i)the Arrotex Trade Identification;
(ii)patents, designs, copyright, rights in circuit layouts, know how, domain names, inventions, trade secrets and any other rights subsisting in the results of intellectual effort in any field, whether or not registered or capable of registration;
(iii)any application or right to apply for registration of any of these rights;
(iv)any registration of any of these rights or any registration of any application referred to in clause 2(m)(iii); and
(v)all renewals and extensions of these rights.
(n)“Invoice” means an invoice issued by Arrotex to the Customer in accordance with clause 11(a) or clause 11(b).
(i)principles of law or equity established by decisions of courts;
(ii)statutes, regulations or by-laws of the Commonwealth, a State, a Territory or a Government Agency; and
(iii)requirements and approvals (including conditions) of the Commonwealth, a State, a Territory or a Government Agency that have the force of law.
(p)“Ordered Goods” means the goods specified by the Customer in a Purchase Order that have been accepted by Arrotex.
(q) “Personal Information” has the meaning given to it in the Privacy Act 1988 (Cth).
(r)“Purchase Order” means an order for Goods that is in the form specified by Arrotex from time to time, whether written, verbal or otherwise.
(s)“Related Body Corporate” has the meaning given to that term in the Corporations Act.
(t)“Arrotex Trade Identification” means the trademarks, service marks, symbols, branding, logos and other trade indicia (whether registered or not) owned or controlled by Arrotex and used in connection with the business conducted by Arrotex under the “Arrotex” name (or any name which replaces the “Arrotex” name).
(u)“Special Conditions” means any special conditions set out in the Customer’s credit application and approved by Arrotex from time to time.
(a)The Customer must order the Goods from Arrotex by submitting a Purchase Order to Arrotex.
(b)Unless otherwise agreed in writing by Arrotex, all items must be ordered in the minimum order quantity for each Good (as notified by Arrotex from time to time) or multiples thereof. All order quantities will be rounded up to the next multiple of the minimum order quantity.
(c)Once placed, a Purchaser Order cannot be cancelled, or delivery deferred, without Arrotex’s consent and for the avoidance of doubt, Customer is obliged to accept delivery and pay for the Goods the subject of such Purchase Order.
(d)Arrotex is not bound by a Purchase Order unless and until it accepts the Purchaser Order (whether in full or in part), either by notifying the Customer of that acceptance or by commencing performance of the Purchase Order.
(e)To the fullest extent permitted by Law, Arrotex is not obliged to accept any Purchase Order and without limiting the foregoing, Arrotex reserves the right to ration the supply of any Good in the event of stock shortages.
(f)Once Arrotex accepts a Purchase Order, the parties must comply with that Purchase Order in accordance with these Terms.
(a)If a delivery date is specified in the Purchase Order, Arrotex will endeavour to deliver within the time so specified but in no circumstances will Arrotex be liable for any loss or damage of any kind whatsoever caused directly or indirectly by any delay in or failure of delivery in whole or in part.
(b)Arrotex reserves the right to make part deliveries of any Purchase Order and each part delivery constitutes a separate sale of Goods upon these Terms.
(c)The Customer must inspect all Goods upon delivery and must in accordance with Arrotex’s Credit Return Policy give notice to Arrotex of any matter or thing by which the Customer alleges that the Goods are not in accordance with the Purchase Order within 7 days of receiving the Goods. Failing such notice and, to the extent permitted by Law, the Goods are deemed to have been delivered and accepted by the Customer.
5. RETURN OF GOODS
To the extent permitted by law, Goods will be credited or replaced (at Arrotex’s discretion) under the following circumstances only:
A Customer is entitled to claim a credit for any goods which are damaged in transit, between Arrotex and the Customer Such claims are to be made in writing within 7 days of receiving the Goods.
(b)Short Dated Stock Goods shipped with short dating (9 months or less depending upon shelf life) supplied and accepted but which remain unused may be returned for credit only with Arrotex’s prior consent and only with in the month of expiry.
(c)Dispatched in Error Customers will be entitled to a credit in relation to any Goods that are sent in error, provided that such claim is made within 7 days of receipt quoting the Purchase Order number and Batch Number.
Where the Customer is a Pharmacy and Arrotex has agreed that its Stock Credit Policy applies, that Stock Credit Policy applies in the event of any inconsistency with this clause 5.
(a)Title to all Goods supplied by Arrotex to the Customer remains with Arrotex and does not pass to the Customer until the price for those Goods and all other moneys owing by the Customer to Arrotex on any account whatsoever (whether under the Agreement or otherwise) (Amount Outstanding) is paid to and received in full by Arrotex in cleared funds.
(b)Until title to Goods supplied by Arrotex to the Customer passes to the Customer in accordance with clause 6(a), the Customer must:
(i)store the Goods separately from the Customer’s own goods and those of third parties, to enable them to be readily identified as Arrotex’s property;
(ii)hold the Goods as the bailee and fiduciary agent of Arrotex;
(iii)not supply or sell the Goods to any person, other than with Arrotex’s prior written consent or in the ordinary and usual course of the Customer’s business, it being acknowledged that any such supply or sale by the Customer will be as the bailee and fiduciary agent of Arrotex;
(iv)when requested by Arrotex, allow Arrotex to enter the premises where the Goods are stored to inspect the Goods and provide to Arrotex the consent of any person whose consent is required for that entry;
(v)keep records that relate to the Goods separately identifiable and readily distinguishable from those that relate to any other goods in its possession;
(vi)not allow any person to have or acquire any encumbrance or security interest in the Goods; and
(vii)keep the Goods insured against theft, damage and destruction (and if the Customer fails to insure the Goods, Arrotex may do so, and the Customer must reimburse Arrotex for the cost of insurance).
(c)If the Customer sells or otherwise disposes of the Goods supplied by Arrotex before title to them has passed from Arrotex to the Customer:
(i)that part of the proceeds of any sale or dealing as is equal to the Amount Outstanding or if the proceeds of sale or dealing are less than the Amount Outstanding, the whole of the proceeds of sale or dealing (in either case, Arrotex’s Entitlement) must be held by the Customer in a separate identifiable account on trust for Arrotex and must not be mixed with any other moneys of the Customer; and
(ii)the Customer must account to Arrotex for Arrotex’s Entitlement, until all liability of the Customer to Arrotex has been discharged.
(d)The Customer has no right to sell the Goods or deal with the Goods if:
(i)o the maximum extent permitted by law, an Insolvency Event occurs in relation to the Customer or the Guarantor;
(ii)the Customer breaches the Agreement and fails to remedy the breach within 5 Business Days after receiving notice from Arrotex requiring the breach to be remedied; or
(iii)the Agreement is terminated for any reason.
(e) If the Customer loses its right to sell or deal with the Goods under clause 6(d), then the Customer must return the Goods to Arrotex on written demand. If the Customer does not return the Goods to Arrotex within 24 hours after receipt of the demand, then without limiting any other rights or remedies Arrotex may have:
(i)Arrotex may, as agent of the Customer, enter the premises where the Goods are located and do all things necessary to retake possession of the Goods, without liability for trespass or any resulting damage;
(ii)Arrotex may keep or resell any of the Goods repossessed;
(iii)the Customer is liable for all costs associated with the exercise by Arrotex of its rights under this clause 6(e), which costs are payable to Arrotex on demand; and
(iv)the Customer indemnifies and must keep indemnified Arrotex against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Arrotex or which Arrotex may pay, sustain or incur as a direct or indirect result of the exercise by Arrotex of its rights under this clause 6(e).
7. PERSONAL PROPERTY AND SECURITIES ACT
(a)The Customer acknowledges that Arrotex may register its interest in the Goods pursuant to section 12 of the Personal Property Securities Act 2009 (Cth) (“PPSA”) and it will not do anything to prevent Arrotex registering its interest in the Goods.
(b)The Customer agrees to do all things and execute all deeds, instruments or other documents as may be necessary or desirable to give full effect to the provisions of these Terms and the rights of Arrotex in respect of the Goods under the PPSA.
Unless otherwise agreed in writing, the price payable by the Customer for the Goods is the price specified in Arrotex’s current price list at the time of ordering. Prices shown on any price list may be subject to alteration without notice.
(a)In this clause 9:
(i)the expressions Consideration, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the GST Act; and
(ii)Supplier means any party treated by the GST Act as making a Supply under the Agreement.
(b)Unless otherwise expressly stated, all prices or other sums payable or Consideration to be provided under or in accordance with the Agreement are exclusive of GST.
(c)If GST is imposed on any Supply made under or in accordance with the Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply.
(d)Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with the Agreement.
10. ACCOUNT AND DEFAULT FEES
(a)Unless otherwise agreed in writing, Arrotex may charge a monthly account keeping fee where the value of the Customer’s monthly total purchases does not exceed Arrotex’s minimum monthly purchase requirement as advised to the Customer from time to time.
(b)If Arrotex incurs processing fees as a result of any payments made by the Customer which are subsequently dishonoured, then Arrotex may charge the Customer the amount of such processing fees and the Customer must pay that amount to Arrotex immediately on request.
(a)For each delivery of Ordered Goods, Arrotex must provide an invoice to the Customer for the amount payable under the Agreement for those Ordered Goods together with details of:
(i)the applicable prices; and
(ii)discounts or rebates (if any).
(b) If Arrotex makes a delivery of Ordered Goods or issues an Invoice to the Customer, then to the extent that the sum of all amounts owing by the Customer to Arrotex at that time (whether under the Agreement or otherwise and whether or not actually payable at that time) does not exceed the Approved Credit Limit, the Customer must pay Arrotex the amount of that Invoice in accordance with the payment terms set out in the Customer’s application for credit with Arrotex. To the extent amounts exceed the Approved Credit Limit, all such amounts become immediately due and payable and Arrotex reserves the right to require payment in advance for any Goods to the extent to which the invoiced amount exceeds any Approved Credit Limit.
(c)Each payment under this clause 11 must be made without set-off or counterclaim and otherwise in the manner specified in the relevant Invoice.
(d)If the Customer fails to make payment in accordance with these Terms or the Agreement or any other agreement between Arrotex and the Customer, after demand for payment by Arrotex, then Arrotex may do one or more of the following:
(i)suspend performance of Arrotex’s obligations under the Agreement (including obligations to provide credit and deliver product the subject of Purchase Orders) until all amounts owing by the Customer to Arrotex (whether under the Agreement or otherwise and whether or not actually payable at that time) are paid in full;
(ii)charge interest on the amount outstanding at the rate of 15% above the prevailing Commonwealth Bank of Australia Overdraft Index Rate (monthly charging cycle) with interest accruing daily from and including the due date for payment until the date of payment in full;
(iii)reassess Customer’s Approved Credit Limit and adjusting or revoking Customer’s Approved Credit Limit (which may include requiring the provision of security).
(e)To facilitate payments, the Customer agrees, upon request by Arrotex, to execute and deliver to Arrotex a direct debit request in Arrotex’s standard form.
12. FORCE MAJEURE
(a)The obligations of Arrotex will be suspended during the time and to the extent that Arrotex is prevented from or delayed in complying with those obligations as a result of a Force Majeure Event.
(b)If Arrotex is affected by a Force Majeure Event, it must:
(i)as soon as reasonably possible after being affected give the Customer particulars of the Force Majeure Event and the manner in which Arrotex’s performance of its obligations will be prevented or delayed; and
(ii)take reasonable steps to remove, overcome or minimise the effects of the Force Majeure Event, except that Arrotex is not obliged to settle a strike, lockout or other labour difficulty.
(a)Subject to this clause 13, and to the maximum extent permitted by the Australian Consumer Law and all other applicable Law, Arrotex is not liable to the Customer or to any third party for:
(i)any loss or damage of any kind caused by or resulting from any act or omission of Customer or that third party or any of its employees, agents or contractors; or
(ii)any loss, damage, liability, expense, injury or death sustained or incurred by the Customer or any other party, including without limitation any loss of profits, or economic, special or, indirect loss or damage, whether resulting directly or indirectly out of any negligence of Arrotex, the supply, performance or use of any Goods or out of any breach of Arrotex under any contract incorporating these Terms, even if notified of the possibility of that potential loss or damage.
(b)Any representation, consumer guarantee, warranty, condition or undertaking that would be implied in the Agreement or by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by the Australian Consumer Law and all other applicable Law.
(c)Nothing in the Agreement excludes, restricts or modifies any consumer guarantee, condition, warranty, right or remedy conferred on the Customer by the Australian Consumer Law or any other applicable Law that cannot be excluded, restricted or modified by agreement.
(d)To the extent the supply of Ordered Goods constitutes the supply of goods to a Consumer (within the meaning of the Australian Consumer Law), Arrotex’s goods come with guarantees that cannot be excluded under the Australian Consumer Law (Statutory Guarantee). The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. To make a claim under the Statutory Guarantee, the Customer should at its expense within 7 days or if that is not permitted under law, within a reasonable time so that Arrotex may investigate the claim. If the claim is valid, Arrotex will honour the Statutory Guarantee the manner described above. The benefits to the Customer given by this warranty are in addition to any other rights and remedies of the Customer under a law in relation to the goods to which the warranty relates.
(e)To the maximum extent permitted by the Australian Consumer Law and all other applicable Law, the liability of Arrotex for a breach of a non-excludable condition or consumer guarantee warranty referred to in clause 13 is limited, at Arrotex’s option, to any one or more of the following:
(i)the replacement of the Goods or the supply of equivalent Goods;
(ii)the repair of the Goods;
(iii)the payment of the cost of replacing the goods or of acquiring equivalent Goods; or
(iv)the payment of the cost of having the Goods repaired.
(f)To the extent permitted by law, the liability of Arrotex, whether under this clause 13, or otherwise, will not exceed the purchase price of the Goods supplied by Arrotex.
The Customer must indemnify Arrotex against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Arrotex or which Arrotex may pay, sustain or incur as a direct or indirect result of any one or more of the following:
(a)any breach or non-performance of the Agreement by the Customer, including any breach of a warranty;
(b)any breach by the Customer of any consumer guarantee, warranty, right or remedy given by the Customer expressly or arising by operation of the Australian Consumer Law or any other applicable Law;
(c)any wrongful, wilful or negligent act or omission of the Customer or any of its employees, agents or contractors;
(d)the storage, handling or use of any Good sold under or in connection with the Agreement, except to the extent that the relevant action, claim, proceeding, demand, liability, loss, damage, expense or cost was caused by the wrongful, wilful or negligent act or omission of Arrotex or any of its employees, agents or contractors; and
(e)any injury or loss sustained by person who is employed or engaged by the Customer as an employee, agent or contractor for the purpose of (among other things) the performance by the Customer of its obligations under the Agreement and who suffers any injury or loss arising out of or in the course of such employment or engagement.
(a)Arrotex may terminate the Agreement with immediate effect by giving written notice to the Customer if:
(i)the Customer breaches any of its obligations under any agreement with Arrotex and does not rectify the failure (where the failure is rectifiable) within 14 days of notice; or
(ii)to the maximum extent permitted by law, the Customer or Guarantor suffer an Insolvency Event.
(b)Arrotex may terminate the Agreement without liability to the Customer, by providing 30 days written notice to the Customer.
(c)Except as expressly provided in this Agreement, termination will not affect any rights or obligations which may have accrued prior to termination.
16. CONSEQUENCES OF TERMINATION
(a)On the termination of the Agreement, the Agreement is at an end as to its future operation except for the enforcement of any right or claim that arises on, or has arisen before, the termination.
(b)Despite any other provision of the Agreement, on termination of the Agreement:
(i)all Purchase Orders (whether or not accepted by Arrotex at the time of termination) will be automatically cancelled, except to the extent otherwise advised in writing by Arrotex; and
(ii) the Customer must within 5 Business Days, pay Arrotex all amounts owing by the Customer to Arrotex, whether otherwise due at that time or not, and otherwise this clause 16 and clauses 13, 14, 17, 18, 19 and 20 survive termination of the Agreement.
17. INTELLECTUAL PROPERTY
(a)The Customer acknowledges and agrees that each Intellectual Property Right is owned or entitled to be owned by Arrotex.
(b)The Customer must:
(i)only use the Intellectual Property Rights in accordance with the reasonable written directions of Arrotex;
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(ii)not license any of the Intellectual Property Rights to or allow the use of any of the Intellectual Property Rights by any other person in any circumstances;
(iii)immediately notify Arrotex of, and comply with Arrotex’s directions in relation to, any issue, claim, demand, threat, notice of proceedings or cause of action (whether contingent, accrued or otherwise) against or involving the Customer relating to any Intellectual Property Rights; and
(iv)do all other acts and things that may be reasonably required by Arrotex to ensure the protection of the Intellectual Property Rights.
18. USE OF INFORMATION
Subject to Arrotex’s compliance with requirements under Law (including the Privacy Act 1988 (Cth), where applicable), the Customer consents to the disclosure by or to Arrotex (and to persons with whom Arrotex may have a legitimate reason to share such information) of any Personal Information of the Customer for the purpose of:
(a)assessing the credit worthiness of the Customer and (where applicable) any Guarantor;
(b)to the maximum extent permitted by Law, assisting Arrotex in the exercise of its rights against the Customer (or where applicable, the Guarantor), including the right to enforce payment of any amount payable by the Customer or the Guarantor to Arrotex whether under the Agreement or otherwise; and
(c)any other lawful purpose required by Arrotex.
19. GUARANTEE AND INDEMNITY
(a)In consideration of Arrotex’s acceptance of the Customer’s credit application at the request of the Guarantor, the Guarantor irrevocably and unconditionally guarantees to Arrotex the due and punctual observance and performance of all the obligations of the Customer under this Agreement (including any warranties or indemnities given in favour of Arrotex).
(b)The liability of the Guarantor under this clause shall not be released or discharged (in whole or in part) by:
(i)any time, concession, waiver or other indulgence being given by Arrotex to the Customer (or any surety) for or in relation to the observance or performance of the Customer’s obligations under this Agreement;
(ii)any variation being made to the terms of this Agreement or the subsequent termination of this Agreement (otherwise than by the Customer, by due exercise of its rights under this Agreement);
(iii)any other security or contractual obligations to secure the performance of the Customer’s obligations under this Agreement being or not being taken, held, renewed, varied or enforced by Arrotex or such security being void, defective, informal or unenforceable;
(iv)all or any of the Customer’s obligations under this Agreement being discharged otherwise than by their due performance or by this Agreement being terminated by Arrotex by due exercise of its rights under this Agreement; or
(v)to the maximum extent permitted by law, any Insolvency Event affecting the Customer.
(c)The guarantee and indemnity given under this clause:
(i)is a continuing guarantee and indemnity and shall remain in force until the whole of the obligations of the Customer have been duly performed and satisfied in full:
(ii) is irrevocable; and
(iii)constitutes a separate and independent obligation of the Guarantor.
(d)Arrotex may enforce the guarantee and indemnity given under this clause without first making any demand to taking any action or proceedings to enforce its rights or remedies against the Customer.
(e)The obligations of the Guarantor under this clause 19 shall continue to be effective or shall be reinstated if at any time any amount under this Agreement is avoided or any payment must be replaced or restored, either in whole or in part, by the Customer for any reason whatsoever and the liability of the Guarantor shall extend to any such payment as if that payment had not been made.
(f)The Guarantor represents and warrants that:
(i)it has full power and authority to enter into this Agreement and has taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms;
(ii) this Agreement constitutes a legally valid and binding obligation of the Guarantor enforceable in accordance with its terms; and
(iii)the execution, delivery and performance of this Agreement by the Guarantor will not violate any provision of any law.
(a)The construction, operation and performance of this Agreement including these Terms will be governed by the Laws of the State of Victoria and the parties accept the jurisdiction of the Courts of that State for resolution of any dispute arising out of or relating to the Agreement, its performance or subject matter.
(b)Arrotex may transfer all or any part of its rights, interests, obligations or liabilities under the Agreement by assignment or by novation.
(c)The Customer must not transfer, assign or otherwise dispose of, its rights and obligations under the Agreement without the prior written consent of Arrotex.
(d)The Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications between the parties.
(e)Each party acknowledges that, except as expressly stated in the Agreement and the Agreement, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another party in relation to the subject matter of the Agreement.
(f)Customer and Guarantor acknowledge that Arrotex may update these Standard Terms and Conditions by placing an updated version of these Standard Terms and Conditions on its website and the continued placing of orders and/or accessing of credit by Customer will constitute an acceptance of the updated standard Terms and Conditions
(g)To the extent that there is any inconsistency between the Agreement and any other agreement the Agreement will prevail.
(h)These Terms prevail to the extent of any inconsistency, over the terms of any Purchase Order or invoice or other arrangement between the parties and displace any contradictory terms or provisions.
(i)The Special Conditions prevail to the extent of any inconsistency over these Terms, the terms of any Purchase Order or invoice or other arrangement between the parties and displace any contradictory terms or provisions.
(j)No waiver of any provision of the Agreement or any agreement will be of any force or effect unless confirmed in writing and signed by the parties.
(k)Arrotex may set off any amount due for payment by Arrotex to the Customer against any amount due for payment by the Customer to Arrotex under the Agreement.
(l)Any provisions of the Agreement that are prohibited or unenforceable under the Laws of a jurisdiction will not apply in that jurisdiction and will not affect the validity or enforceability of the other provisions of the Agreement.