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Software Subscription License Agreement

This subscription license agreement (“Agreement”) is entered into between devopsmx, inc. (“OpsMx”) and the customer identified on the order form that incorporates this agreement by reference (the “order form”, and such customer, “customer”), and is effective as of the effective date of such order form (the “effective date”). the individual accepting this agreement on behalf of customer represents that it has the authority to bind customer to this agreement.

Now, therefore, in consideration of the mutual promises contained herein, the parties agree as follows:

  1. Definitions
    1. “Authorized Representative” means an individual employee of a party who is specifically authorized to execute this Agreement on behalf of such party.
    2. “Documentation” means any documentation or materials including, without limitation, reference, user, installation, systems administrator and technical guides/manuals relating to the installation and use of
      the Licensed Product.
    3. “Improvements” means all corrections, updates, upgrades, enhancements, releases, fixes, new versions or other improvements of, or modifications to, the Licensed Product which OpsMx makes available to its
      customers.
    4. “Intellectual Property Rights” means any and all tangible and intangible:
      1. copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof;
      2. trademark and trade name rights and similar rights;
      3. trade secret rights;
      4. patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto;
      5. all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and
      6. all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
    5. “Licensed Product(s)” means the software, in Object Code form, including all Improvements, which is described in the Documentation and listed in the Order Form(s).
    6. “License Term” shall be the length of time Customer shall be entitled to use the Licensed Product, as set forth in the Order Form(s), defined as “Time Based” which conveys a limited-time right to
      use.
    7. “Object Code” shall mean the Licensed Product in compiled, executable binary form.
    8. “Order Form(s)” means a duly authorized purchase order issued to OpsMx and accepted by OpsMx in response to, and reflecting, a duly authorized quotation issued by OpsMx to Customer.
  2. GRANT OF LICENSE
    1. License Grant: Subject to the terms and conditions of this Agreement, OpsMx hereby grants Customer for the License Term, a non-exclusive, irrevocable, non-transferable (except as provided in Section 7 below), worldwide
      license to access and use OpsMx software product(s) (whether deployed on a software-as-a-service (“SaaS”) basis or in an on-premise installation) (collectively, the “Software”)
    2. RESTRICTIONS ON USE. Except as otherwise expressly provided in this Agreement, Customer shall not (and shall not permit any third party to):
      1. sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau basis, or use in an application service provider or
        managed service provider environment, or otherwise generate income from the Software;
      2. copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment;
      3. cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or underlying algorithms or other operational mechanisms of the Software
        (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to OpsMx);
      4. modify, adapt, translate or create derivative works based on all or any part of the Software;
      5. use any Third Party Software (as defined below) provided with the Software other than with the Software;
      6. modify any proprietary rights notices that appear in the Software or components thereof;
      7. publish the results of any benchmarking tests run on any Third Party Software;
      8. use any Software in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 2.1
        (License Grant);
      9. use the Software in support of any nuclear proliferation, chemical weapon, biological weapon or missile proliferation activity;
      10. configure the Software to collect any (1) social security numbers or other government- issued identification numbers, (2) health information, biometric data, genetic data, or payment/financial information, (3) any
        data relating to a person under the age of thirteen (13) years old, or (4) any other data that is subject to regulatory or contractual handling requirements (e.g., PCI, HIPAA, or state and federal data security
        laws) (collectively, “Prohibited Data”); or
      11. use the Software to (1) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (2) engage in phishing, spamming, denial-of-service attacks
        or other fraudulent or criminal activity, (3) interfere with or disrupt the integrity or performance of third party systems, or the Software or data contained therein, or (4) attempt to gain unauthorized access
        to the Software or OpsMx’s systems or networks, or (5) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments
        on the SaaS deployment of the Software. Customer shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof
      12. in violation of any applicable laws and regulations, (i) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental
        approval, including Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other Group D:1 or E:2 country (or to a national or resident thereof) specified in the then current Supplement No. 1 to part 740 of
        the U.S. Export Administration Regulations (or any successor supplement or regulations, without first obtaining such license or approval) or (ii) to anyone on the U.S. Treasury Department’s list of Specially
        Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.
    3. UNAUTHORIZED USE: Customer shall notify OpsMx promptly of any unauthorized use or access of the Software (including unauthorized users or unauthorized disclosure of any password or account), or any other known or suspected
      breach of security or misuse of the Software. Customer is responsible for use of the Software (and all other acts or omissions) by its employees, contractors, affiliates or other users that it allows to use or access
      the Software.
  3. SOFTWARE SUPPORT TERMS
    1. Subject to Customer’s payment of all fees set forth in the Order Form, OpsMx will provide reasonable technical support for the Software during the License Term in accordance with OpsMx’ standard practice. All fees
      for such support are included in the fees for the Software. Further, notwithstanding anything herein to the contrary, Customer agrees to facilitate any connections and access necessary for OpsMx to (i) deliver, deploy
      and provide the Software as provided hereunder and (ii) to perform its obligations hereunder (including its support obligations).
    2. OpsMx shall exercise commercially reasonable efforts to support any Error reported by Customer in the Software in accordance with the priority level reasonably assigned to such Error by OpsMx

    Methods and SLA of Support

    methodsandslasupport

  4. TERM AND TERMINATION
    The term of this Agreement begins on the Effective Date and will remain in effect until the Order Form has expired or terminated, or until this Agreement is otherwise terminated in accordance with the terms hereof, whichever occurs first (the “Term”).

    Unless earlier terminated in accordance with this Agreement, the initial License Term of the Order Form commences on the Order Form Effective Date (as defined in such Order Form) and continues for the duration of the License Term as expressly specified therein. If either party commits a material breach of this Agreement, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement, except that OpsMx may immediately terminate this Agreement, including Customer’s license to the Software, upon Customer’s breach of Section 2.2 (Restrictions on Use).


    Either party may also terminate this Agreement upon written notice if the other party suspends payment of its debts or experiences any other insolvency or bankruptcy-type event. Upon expiration or termination of this Agreement for any reason, (i) all rights granted to Customer shall terminate and Customer shall destroy any copies of the Software and Documentation within Customer’s possession and control; and (ii) each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. All fees that have accrued as of such expiration or termination, and Sections 2.2, 2.3, 4, 5, 6, 7 8.2, 9 through 14, will survive any expiration or termination hereof.
  5. FEES AND PAYMENT.
    1. PRICING. Customer will be invoiced for those amounts and at those prices set forth in the Order Form (an “Invoice”). All fees shall be invoiced and pre-paid on an annual basis, unless otherwise specified
      in the Order Form. Fees do not include any customization of the Software (nor support for any such customizations, unless otherwise agreed in writing). If Customer’s usage of the Software is in excess of the usage
      limitations or License Units set forth in the Order Form, Customer will be billed for those overages at a pro-rated amount for the remainder of the applicable License Term under the Order Form, based on OpsMx’ then-current
      standard pricing. If OpsMx believes in good faith that Customer’s usage of the Software exceeds the usage limitations set forth on the Order Form, Customer agrees to allow OpsMx to audit Customer’s use of the
      Software (not more frequently than twice per calendar year), upon at least twenty-four (24) hours’ notice, in order to determine Customer’s actual Software use, using a commercially reasonable auditing procedure.
      Customer acknowledges that purchases made under this Agreement are neither contingent on the delivery of any future functionality or features of the Software nor dependent on any oral or written public comments made
      by OpsMx regarding future functionality or features of the Software.
    2. PAYMENTS. Customer shall pay Invoices under the Order Form within thirty (30) days of the invoice date (the “Invoice Due Date”). If Customer reasonably disputes any Invoice, (i) Customer shall provide OpsMx
      with written notice of such dispute, including the grounds therefor (a “Dispute Notice”) prior to the Invoice Due Date, (ii) Customer and OpsMx shall, for a period of fifteen (15) days following OpsMx’ receipt
      of such Dispute Notice, negotiate in good faith to resolve the dispute, and (iii) if such dispute remains unresolved at the end of such period, the parties shall retain all of their respective rights under this Agreement
      (including, without limitation, any action for non-payment of the fees set forth herein). All payment obligations are non-cancelable and all amounts paid are non-refundable, except (a) for amounts paid in error that
      are not actually due under this Agreement, and (b) as set forth in Sections 8.1 (Limited Warranty) and 9.1 (Indemnification by OpsMx). The fees paid by Customer are exclusive of all taxes, levies, or duties imposed
      by taxing authorities, if any, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on OpsMx’ income. Customer represents and warrants that the billing and contact
      information provided to OpsMx is complete and accurate, and OpsMx shall have no responsibility for any Invoices that are not received due to inaccurate or missing information provided by Customer. Customer shall pay
      interest on all payments not received by the Invoice Due Date at a rate of one percent (1%) per month or the maximum amount allowed by law, whichever is less. All amounts due under this Agreement and the Order Form
      shall be paid by Customer in full without any set-off, counterclaim, deduction or withholding. In the case of any withholding requirement, Customer will pay any required withholding itself and will not reduce the amount
      payable to OpsMx on account thereof. If requested by OpsMx, Customer will obtain and furnish OpsMx tax receipts or other certificates issued by the competent taxation office showing the payments of the withholding tax
      within a reasonable time after payment. Following written notice, OpsMx shall be entitled to suspend Customer’s use of and access to the Software if payments are not received within thirty (30) days of the Invoice
      Due Date.
  6. OWNERSHIP The Licensed Product and Documentation, including any developments, enhancements, improvements and derivative works therein and thereto, are the intellectual property of and are owned by OpsMx and its licensors, and are the Confidential Information of OpsMx. As between the parties, OpsMx retains all rights, title and interest in and to the Licensed Product and Documentation, including all intellectual property and other proprietary rights therein and thereto, and subject to the limited license granted by OpsMx to Customer in Section 2.1, Customer does not have any right, title or interest in or to the Licensed Product and Documentation. All rights not expressly granted in this Agreement are reserved by OpsMx and its licensors. If OpsMx receives any feedback, suggestions, ideas, reports, or other information relating to the Licensed Product or any other OpsMx products or services, OpsMx may use such information without any obligation to Customer.
  7. ASSIGNMENT; TRANSFER.
    1. This Agreement and the rights and obligations hereunder are not transferable or assignable without the prior written consent of the parties hereto. OpsMx may assign or transfer this Agreement in connection with any acquisition,
      consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law without Customer’s consent. Customer may assign or transfer this Agreement
      in whole to an affiliate or by business combination, operation of law or otherwise without OpsMx’s prior written consent and with written notice to OpsMx, provided that such assignee or transferee is not a direct
      competitor of OpsMx.
  8. WARRANTIES.
    1. LIMITED WARRANTY. OpsMx warrants that during the License Term under the Order Form, the Software will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable
      version of the Software. OpsMx’s sole and exclusive obligation, and Customer’s sole and exclusive remedy, for a breach of this warranty shall be that OpsMx will use commercially reasonable efforts to repair
      or replace the Software to conform in all material respects to the Documentation, and if OpsMx is unable to materially restore such functionality within thirty (30) days from the date of written notice of breach of
      this warranty by Customer, Customer shall be entitled to terminate the Subscription License to the affected Software under the Order Form upon written notice to OpsMx, and OpsMx shall promptly provide a pro-rata refund
      of the Subscription License fees under such Order Form that have been paid in advance for the remainder of the License Term under such Order Form (beginning on the date of termination). To be eligible for the foregoing
      remedy, Customer must notify OpsMx in writing of any warranty breaches within such warranty period, and Customer must have installed and configured the Software in accordance with the Documentation.
    2. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, ALL SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT ARE PROVIDED “AS IS,” AND OpsMx AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS
      AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS,
      UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE. OpsMx EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION
      WITH THE SOFTWARE, DOCUMENTATION, MAINTENANCE OR SUPPORT. OpsMx is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and
      facilities, including the Internet, and Customer acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Software
      is not fault-tolerant and is not designed or intended for use in hazardous environments, including without limitation, in the operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities,
      life support systems, implantable medical equipment, motor vehicles or weaponry systems, or any other application in which failure of the Software could lead to death or serious bodily injury of a person, or to severe
      physical or environmental damage (each, a “High Risk Use”). OpsMx expressly disclaims any express or implied warranty or representation of fitness for High Risk Use. OpsMx shall not be liable to Customer for
      any loss, damage or harm suffered by Customer that is directly or indirectly caused by Customer’s unauthorized use of the Software to process Prohibited Data.
  9. INDEMNIFICATION.
    1. BY OpsMx. OpsMx agrees to defend, at its expense, Customer against (or, at OpsMx’s sole option, settle), any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent,
      copyright, trademark or trade secret of a third party, and OpsMx shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such claim. In the event that
      the use of the Software is, or in OpsMx’s sole opinion is likely to become, subject to such a claim, OpsMx, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing
      technology, (b) obtain a license for Customer’s continued use of the applicable Software, or (c) terminate the License and provide a pro-rata refund of the License fees under the Order Form that have been paid in
      advance for the remainder of the License Term under such Order Form (beginning on the date of termination). The foregoing indemnification obligation of OpsMx will not apply: (1) if the Software is or has been modified
      by Customer or its agent; (2) if the Software is combined with other non-OpsMx products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (3) to any unauthorized
      use of the Software. The foregoing shall be Customer’s sole remedy with respect to any claim of infringement, misappropriation or other violation of third party intellectual property rights.
    2. BY Customer. Customer agrees to defend, at its expense, OpsMx and its affiliates, its suppliers and its resellers against any third party claim to the extent such claim arises from or is made in connection with Customer’s
      breach of Section 2 (Grant of License) or Customer’s negligence or willful misconduct, and Customer shall pay all costs and damages finally awarded against OpsMx by a court of competent jurisdiction as a result
      of any such claim.
    3. INDEMNIFICATION REQUIREMENTS. In connection with any claim for indemnification under this Section 9, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified
      party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 9, except
      to the extent that such failure materially prejudices the indemnifying party’s defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party
      shall control the defense and all negotiations related to the settlement of any such claim. Any such settlement intended to bind either party shall not be final without the other party’s written consent, which consent
      shall not be unreasonably withheld, conditioned or delayed; provided, however, that Customer’s consent shall not be required when OpsMx is the indemnifying party if the settlement involves only the payment of money
      by OpsMx.
  10. LIMITATION OF LIABILITY. The limits below will not apply to the extent prohibited by applicable law.
    1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR CUSTOMER’S BREACH OF CONFIDENTIALITY OR MISAPPROPRIATION OF OpsMx’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT
      FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT,
      EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR CUSTOMER’S BREACH OF CONFIDENTIALITY OR MISAPPROPRIATION OF OpsMx’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S LIABILITY FOR ANY DAMAGES (WHETHER FOR BREACH
      OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) UNDER THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID (PLUS FEES PAYABLE) TO OpsMx DURING THE TWELVE (12) MONTHS
      IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES.
    3. THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
  11. FORCE MAJEURE. Except for payment obligations, neither party hereto will be liable for defaults or delays due to acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, earthquakes, floods, accidents, failures in telecommunications, internet, internet service provider or hosting facilities, power shortages and denial of service attacks, or other unforeseeable causes beyond its reasonable control and not due to its fault or negligence.
  12. DATA COLLECTION. Customer understands, acknowledges and agrees that OpsMx’s Software stores, in encrypted form, sensitive data components involved in Customer’s own software delivery processes (including passwords, keys, and credentials). In addition, OpsMx captures logs, performance monitoring data, and test results to verify the success or failure of deployments of the Software, and collects data and metrics on Customer’s activities, such as how and which features of the Software Customer uses. If Customer provides OpsMx with any personally identifiable information (“personal data”), Customer represents and warrants that such information has been collected by Customer in accordance with the provisions of all applicable data protection laws and regulations, and that Customer has all rights and consents necessary to provide such personal data to OpsMx for OpsMx’s use in the performance of this Agreement. Customer will indemnify OpsMx for reasonable costs and other amounts that OpsMx may incur relating to any breach of this Section 12. Notwithstanding anything herein to the contrary, OpsMx shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Customer and data derived therefrom), and OpsMx will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other OpsMx offerings, and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. OpsMx will employ physical and electronic safeguards for all data in its possession and control according to industry standards.
  13. CONFIDENTIALITY
    1. Each party will protect the other’s Confidential Information from unauthorized use and disclosure with the same degree of care that such party uses to protect its own like information. “Confidential Information”
      shall mean any information of the disclosing party either (i) disclosed in tangible form and conspicuously marked “Confidential,” “Proprietary” or the like or (ii) disclosed in non-tangible form and
      orally identified as confidential at the time of disclosure and summarized in tangible form conspicuously marked “Confidential”, “Proprietary” or the like within thirty (30) days of the original disclosure.
      The Licensed Product and Documentation are Confidential Information of OpsMx.
    2. Neither party will use the other’s Confidential Information for purposes other than those necessary to directly further the express purposes of this Agreement. Neither party will disclose to third parties the other party’s
      Confidential Information without the prior written consent of the other party.
    3. The receiving party shall not be obligated under this Section 13 with respect to information the receiving party can document;
      1. is or has become publicly known through no fault of the receiving party;
      2. is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information;
      3. was rightfully in the possession of the receiving party without restriction prior to its disclosure by the disclosing party; or
      4. is independently developed by or on behalf of the receiving party.
    4. After the termination of this Agreement and upon request of the other party, each party will return or destroy any Confidential Information of the other party and any copies, extracts and derivatives thereof.
    5. Each party acknowledges that its breach of this Section 13 may cause irreparable injury to the other party for which monetary damages may not be an adequate remedy. Accordingly, a party will be entitled to seek injunctive
      or other equitable relief in the event of such a breach by the other party.
    6. Neither party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the other party’s prior written consent, but OpsMx may identify Customer
      with its name and logo as its customer on OpsMx’s website and other marketing materials.
  14. GENERAL.
    1. Applicable Law. This Agreement is made in and shall be governed by the laws of the State of California, without regard to the conflicts of laws provisions thereof and the parties specifically disclaim the United Nations
      Convention on the International Sale of Goods.
    2. Jurisdiction. The exclusive jurisdiction and venue for any action with respect to this Agreement shall be the state courts of the State of California for the County of Santa Clara or the United States District Court for
      the Northern District of California and each of the parties hereto submits itself to this exclusive jurisdiction and venue of such courts for the purpose of such action.
    3. Headings. The section headings herein are provided for ease of reference only and shall have no legal effect.
    4. Severability. If any provision of this Agreement shall be held to be illegal or unenforceable, that provision shall be replaced by an enforceable provision that comes closest to the parties’ intentions underlying the
      illegal or unenforceable provision, and the remaining provisions of this Agreement shall remain in full force and effect.
    5. Waiver. The failure by a party to exercise any rights hereunder shall not operate as a waiver of such party’s right or any other right in the future.
    6. Amendment. This Agreement may be amended or modified only with the prior written consent of both parties.
    7. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original.
    8. Entire Agreement. This Agreement and all exhibits hereto constitute the entire agreement between the parties concerning the subject matter hereof. This Agreement replaces and supersedes any prior verbal or written understandings,
      communications or representations between the parties.