Terms of Service

October 2016

 1. ACCEPTANCE OF TERMS
Chartlytics LLC (hereafter called "Chartltyics") provides its service to you, subject to the following Terms of Service ("TOS"), which may be updated by us from time to time without notice to you. When using particular Chartlytics services, you and Chartlytics shall be subject to any posted guidelines or rules applicable to such services which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS.

2. DESCRIPTION OF SERVICE
Chartlytics currently provides users with a service to precisely measure behavior, view those measurements on a standardized visual display, and devise and apply interventions to change that behavior. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Chartlytics properties or applications, shall be subject to the TOS. You understand and agree that the Service is provided "as-is" and that Chartlytics assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.

In order to use the Service, you must obtain access to the Internet, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device.

3. YOUR DATA RIGHTS AND RELATED RESPONSIBILITIES 
"Your Data" means any data and content stored or transmitted via the Services by or on behalf of you or your end users (which may include data you elect to import from third party services you use). This includes content you create, measurements you make, messages you send, files you upload, comments on files, profile information and anything else you enter or upload into Chartlytics. Chartlytics will make commercially reasonable efforts to ensure that all facilities used to store and process Your Data meet a high standard for security.

In order for us to provide the Service to you, we require that you grant us certain rights with respect to Your Data. For example, we need to be able to transmit, store and copy Your Data in order to display it to you and your colleagues, performers, or parent and guardians, to index it so you are able to search it, to make backups to prevent data loss, and so on. Your acceptance of this TOS gives us the permission to do so and grants us any such rights necessary to provide the service to you, only for the purpose of providing the service (and for no other purpose). This permission includes allowing us to use third-party service providers (such as Amazon Web Services) in the operation and administration of the service and the rights granted to us are extended to these third parties to the degree necessary in order for the service to be provided. These rights and permissions are not permanent: they terminate whenever you remove all or part of Your Data from The Service. We claim no ownership over Your Data.

If you or your end users send us any feedback or suggestions regarding the Service, you grant Chartlytics LLC an unlimited, irrevocable, free license to use any such feedback or suggestions for any purpose without any obligation to you or your end users.

Nothing herein shall limit our right to collect, use and analyze data and other information relating to the use and performance of the Services and related technologies and to disclose it in aggregate or de-identified forms in connection with our business. That means, for example, that we can tally up the number of people connected to the service on a given day, or the number of measures created during a period of time, or any one of a near-infinite number of other measures or analyses and share that however we’d like.

You are solely responsible for your, your administrators’ and your end users’ conduct, the content of Your Data, and all communications with others while using the Services. We may choose to review public content for compliance with our policies and guidelines, but you acknowledge that Chartlytics has no obligation to monitor any information on the Services. However, you further agree that Chartlytics may remove or disable any public content at any time for any reason or for no reason at all. For example, if you upload files which do not belong to you and use the “Get Public Link” feature to make these files available publicly, we can delete those files. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information you and your end users may be able to access using the Services. The Services provide features that allow you and your end users to share Your Data and other materials with others or to make it public. Please consider carefully what you allow to be shared or made public.

3. YOUR REGISTRATION OBLIGATIONS
In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Chartlytics has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Chartlytics has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).

Eligibility
By agreeing to the Terms, you represent and warrant to us that:

  1. you, the individual, are at least 18 years old and have not previously been suspended or removed from the Service;
  2. you, the individual, are establishing an Account on behalf of your Subscribing Organization;
  3. you, the individual, are an authorized representative of your Subscribing Organization with the authority to bind your Subscribing Organization to the Terms;
  4. you, the individual, and your Subscribing Organization agree to be bound by the Terms;
  5. you, the individual, have been authorized by your Subscribing Organization to use the Service and to provide User Information (as defined below) and School Student or Client Information (as defined below) in connection with your use of the Service on behalf of your Subscribing Organization;
  6. your registration and your use of the Service is in compliance with any and all applicable laws and regulations, including without limitation the Family Educational Rights and Privacy Act ("FERPA").  

4. MEMBERSHIP AND BILLING
You can find the specific details regarding your membership with Chartlytics at any time. Simply sign in to your Chartlytics Organization Owner account, go to the Membership tab, and click Manage your account.

Billing
By starting your Chartlytics membership, you are expressly agreeing that we are authorized to charge you the membership fee associated with the type of membership (monthly or yearly) you chose during registration. You agree that we are authorized to charge you the membership fee at the then-current rate to the Payment Method you provided during registration (or to a different Payment Method if you change your account information). Please note that prices and charges are subject to change with notice. As used in these Terms of Service, "billing" shall indicate either a charge or debit, as applicable, against your Payment Method. The membership fee will be billed at the beginning of the paying portion of your membership and each month or year thereafter unless and until you cancel your membership. Sign in to your Chartlytics Organization Owner account, go to the Membership tab, and click Manage your account to see the commencement date for your next renewal period. We automatically bill your Payment Method each month or year on the calendar day corresponding to the commencement of your paying membership. Membership charges are fully earned upon payment.

Note: In the event your monthly membership began on a day not contained in a given month, we bill your Payment Method on the last day of such month. For example, if you became a paying member on January 31, your Payment Method would next be billed on February 28.

Payment Terms
You acknowledge that the amount billed each billing period may vary for reasons that include differing amounts due to changes in your membership plan, and you authorize us to charge your Payment Method for such varying amounts. Payments are nonrefundable and there are no refunds or credits for partially used periods. We may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by e-mail. If you want to use a different Payment Method or if there is a change in Payment Method, such as your credit card validity or expiration date, you may edit your Payment Method information from your Account management page. To access your Account management page sign in to your Chartlytics Organization Owner account, go to the Membership tab, and click Manage your account. If your Payment Method reaches its expiration date and you do not edit your Payment Method information or cancel your account (see, "Cancellation" below), you authorize us to continue billing that Payment Method and you remain responsible for any uncollected amounts.

Disputing Charges
If you dispute any charges you must let Chartlytics know within sixty (60) days after the date that Chartlytics invoices you. All amounts paid are non-refundable and we reserve the right to change our prices in the future. 

Pricing
If we increase our prices for your Service plan, we will provide notice of the change on the Site and in email to you at least 30 days before the change is to take effect. Your continued use of the Service after the price change goes into effect constitutes your agreement to pay the changed amount. Chartlytics may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees 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. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Chartlytics' net income.

Special Beta Pricing
For those customers that signed up for the Service prior to May 21st, 2015, we will honor the Beta plan pricing of $3/mo/active performer until May 20th, 2018 (three years).  At that time we will expire our Beta plan and you will be required to switch to a different Service plan in order to continue using the software. If you choose not to switch your Service plan, your account will be downgraded according to our standard Service plan downgrade process.

Ongoing Membership
Your Chartlytics membership will continue in effect unless and until you cancel your membership or we terminate it. You must cancel your membership before it renews each billing period in order to avoid billing of the next membership fee to your Payment Method. We will bill the membership fee at the then-current rate plus any applicable tax to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information). Membership fees are fully earned upon payment.

Holds
You may place a monthly membership on hold at any time, and the hold will take effect at the start of your next billing cycle. When the hold period has ended, your membership will resume and we will automatically bill the membership fee at the then-current rate plus any applicable tax to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information).

You may cancel a hold status at any time by clicking the words "Remove hold" on your Account management page. When you cancel a hold period, your membership will resume immediately and we will automatically bill the membership fee at the then-current rate plus any applicable tax to the Payment Method you provide to us during registration (or to a different Payment Method if you change your account information).

Data Retention for Holds
When an account is in a hold state, Chartlytics will maintain the accounts data in an archived state. The archived account data will be treated just as if it were live or active data and will be backed up routinely within standard backup procedures. Archived data for accounts in a hold state will be maintained for a minimum of 6 months from the date of the account being placed on hold. Chartlytics assumes no liability for data that is deleted after the 6 month period following the account being placed on hold. It is the customers sole responsibility to maintain their membership level in order to maintain account data after 6 months from the date of the account being placed on hold.

Cancellation
You may cancel your Chartlytics membership at any time, and cancellation will be effective immediately. You will continue to have access to the program until the current billing period ends. We do not provide refunds or credits for any partially used membership periods. To cancel your membership, sign in to your parent account and click the words "Cancel membership" on your Account management page. Follow the instructions for cancellation under the heading "Cancel Membership.”

5. CHARTLYTICS PRIVACY POLICIES
Registration Data and certain other information about you is subject to our Privacy Policy viewable at http://chartlytics.com/privacy-policy.html. Additionally for users subject to FERPA, our FERPA privacy policy can be found here: http://www.chartlytics.com/ferpa-compliance-and-student-data-privacy-policy.html.

6. MEMBER ACCOUNT, PASSWORD AND SECURITY
You will have a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Chartlytics of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Chartlytics cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 6.

Chartlytics accounts may not be shared by more than one person unless express authorization is given by Chartlytics LLC.

7. MEMBER CONDUCT
You understand that all information including but not limited to data, text, software, photographs, graphics, illustrations, artwork, video, music, sound, messages, names, logos, trademarks, service marks and other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Chartlytics, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available via the Service. Chartlytics does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Chartlytics be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, e-mailed, transmitted or otherwise made available via the Service.

You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

8. UPLOADER SUBMISSIONS DISCLAIMER
The Website may, now and/or in the future, contain features and functionality which allow users to upload, post, communicate and transmit text (including various forms of commentary and discourse), pictures and other content (“Uploader Submissions”), including through social media, e-mail, instant messaging, and other collaborative and interactive capabilities. You understand that when using the Service, you will be exposed to Uploader Submissions or other content from a variety of sources, and that Chartlytics is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Uploader Submissions and other content. You further understand and acknowledge that you may be exposed to Uploader Submissions and other content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Chartlytics with respect thereto. Chartlytics does not endorse any Uploader Submissions and other content or any opinion, recommendation or advice expressed therein, and Chartlytics expressly disclaims any and all liability in connection with Uploader Submissions and other content. Chartlytics does not control, and has no obligation to monitor, the Uploader Submissions. If notified by a user or a content owner of an Uploader Submission or other content that allegedly does not conform to these Terms, Chartlytics may investigate the allegation and determine in its sole discretion whether to remove the Uploader Submission or other content, which it reserves the right to do at any time and without notice.

Chartlytics use of School Student or Client Information.
By uploading School Student or Client Information (the “School Student or Client Information”), you grant Chartlytics a royalty-free right and license to host and use your Service School Student or Client Information, in whole or in part, for the purposes of (i) your use of the Service, (ii) improving or modifying the Service (provided, however, no personally identifiable information of any students will be used), (iii) improving or modifying your user experience of the Service (provided, however, no personally identifiable information of any students will be used), and (iv) aggregating and anonymizing the Service School Student or Client Information (which may include aggregating with other users’ Service School Student or Client Information, but WILL NOT include any personally identifiable information of any students) for different reports and analysis provided by the Service.
Limited License Grant to Other Users.
By uploading and sharing User Information and/or School Student or Client Information (collectively, the “Information”) with another user of the Service, you hereby grant that user a non-exclusive license to access and use such Information; provided, however, you, the individual, acknowledge and agree that you will only share the Information with only those other individuals who have been previously authorized and approved by your Subscribing Organization to see and use such Information and to use the Service. You are solely liable and responsible for your actions or inactions that result in the sharing of any such Information with others. This includes, but not limited to, adequately protecting the Information that may be displayed on your computer screen and not leaving your computer unattended if the Information is visible or accessible.
Chartlytics does not take responsibility or liability for your distribution, sharing or disclosure of such Information. Furthermore, you acknowledge and understand that you are subject to all applicable privacy laws, rules and regulations, including without limitation, FERPA.
9. SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

10. INDEMNITY
You agree to indemnify and hold Chartlytics, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another.

11. NO RESALE OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.

12. MODIFICATIONS TO SERVICE
Chartlytics reserves the right at any time and from time to time to modify or temporarily discontinue the Service (or any part thereof) with or without notice. You agree that Chartlytics shall not be liable to you or to any third party for any modification, suspension or temporary discontinuance of the Service. In the event of permanent discontinuance of the Service, liability is limited to the paid subscription price, pro-rated to the amount of time remaining on the subscription.

13. TERMINATION
You agree that Chartlytics, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, for any reason, including, without limitation, for lack of use or if Chartlytics believes that you have violated or acted inconsistently with the letter or spirit of the TOS. Chartlytics may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this TOS may be effected without prior notice, and acknowledge and agree that Chartlytics may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Chartlytics shall not be liable to you or any third-party for any termination of your access to the Service.

14. LINKS
The Service may provide, or third parties may provide, links to other Internet websites or resources. Because Chartlytics has no control over such sites and resources, you acknowledge and agree that Chartlytics is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Chartlytics shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.

15. CHARTLYTICS’ PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that information presented to you through the Service is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Chartlytics or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Software, in whole or in part.

Chartlytics grants you a personal, non-transferable and non-exclusive right and license to use the Service. You agree that you will not copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Chartlytics for use in accessing the Service.

Furthermore, you understand that the Content is protected by copyright and other laws in both the United States and elsewhere. Under the terms of this agreement, it is expressly forbidden to distribute the Content or any portion thereof by any means, including but not limited to electronic and print, to any person or entity who does not have a valid account. Chartlytics reserves the right to cancel your organization's license without refund if it is determined that you have violated this portion of the agreement.

Data Portability
Chartlytics may enable you to export certain Information you have uploaded to the Service (the "Data") to certain data export formats, including the comma separated values file format (.csv). You are solely liable and responsible for any such exported Data. Chartlytics does not take responsibility or liability for your distribution, sharing or disclosure of such exported Data. You acknowledge and understand that you are subject to all applicable privacy laws, rules and regulations, including without limitation, FERPA. Chartlytics does not guarantee that all Information will be exportable as Data. Following termination of your Account or of your access to the Service for any reason, all of your Information will be immediately deleted and you will no longer have the ability to export any of your Data. It is the policy of Chartlytics to immediately delete all Data and your other Information upon termination of your agreement with these Terms, your access to the Service, or expiration of your subscription (if applicable).  
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CHARTLYTICS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. CHARTLYTICS MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CHARTLYTICS OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.

Representations. 
You represent that you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions (including any permissions required under any applicable law or regulation, including without limitation FERPA) to use and to authorize Chartlytics and users of the Service to use and distribute your Information as necessary to exercise the licenses granted by you in this Section and in the manner contemplated by Chartlytics and the Terms;

Your Information, and the use thereof as contemplated herein, does not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) contain any viruses, adware, spyware, worms, or other malicious code; or (d) violate any applicable law or regulation, including without limitation FERPA.

Disclaimer.
We are under no obligation to edit or control the Information that you and other users post or publish, and will not be in any way responsible or liable for the Information. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Chartlytics with respect thereto. We expressly disclaim any and all liability in connection with the Information. If notified by a user or content owner that the Information allegedly does not conform to the Terms, we may investigate the allegation and determine in our sole discretion whether to remove the Information, which we reserve the right to do at any time and without notice. For clarity, Chartlytics does not permit copyright infringing activities on the Service.

17. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CHARTLYTICS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CHARTLYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.

18. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 15 AND 16 MAY NOT APPLY TO YOU.

19. TRADEMARK INFORMATION
Chartlytics is a registered trademark of Chartlytics LLC.

20. GENERAL INFORMATION
The TOS constitute the entire agreement between you and Chartlytics and govern your use of the Service, superseding any prior agreements between you and Chartlytics. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. The TOS and the relationship between you and Chartlytics shall be governed by the laws of the State of California without regard to conflict of law provisions. The failure of Chartlytics to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in the TOS are for convenience only and have no legal or contractual effect.