KIS Homeschool – Terms and Conditions
THIS ENROLLMENT AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF OUR SERVICES.
You may not access the Services if You are not using the service for your own child, except with Our prior written consent. You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. You may not show our services and/or processes to any competitor.
This Agreement is effective between You and Us as of the date of You accepting this Agreement.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious computer code, files, scripts, agents or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
“Services” means the online, Web-based KIS Homeschool applications and platform provided by KIS Homeschool, a division of KIS Publishing LLC via https://www.kishomeschool.com and/or other designated websites (the “Sites”). Services shall also include all training material, videos, photos and content used during training and coaching. It will also include the iPad applications (the “Apps”) downloaded from Apple Inc.’s App Store.
“Student” refers to an individual for whom lessons developed using the Services will be designed. One User may have one or more Students. Each Student is required to have a subscription to the Service.
“Users” means individuals who are authorized by You to use the Services who have been supplied user identifications and passwords by Us. Users may include but are not limited to You, Your employees, consultants, contractors and agents; or third parties with which You transact business.
“We,” “Us,” or “Our” means KIS Publishing LLC DBA KIS Homeschool.
“You” or “Your” means you personally or you and your spouse personally
“Your Data” means all electronic data or information submitted by You to the Services, whether directly or indirectly.
2.1. Provision of Services. We shall make the Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. User Subscriptions. Unless otherwise specified in the applicable Form, Services are purchased as Student subscriptions and may be accessed by no more than the specified number of Students. Individual Student subscriptions are for designated Student and cannot be shared or used by more than one Student.
2.3. User Relationship. By You purchasing a subscription, We are entering into an educational relationship with You. You agree that your relationship with Us is not therapeutic in that the information We provide will be strictly for educational purposes. We will not provide child-specific treatment recommendations and You will make Your own treatment decisions. We are providing You with training and educational material only.
2.4. State Registration. If You choose to home school your child, You are responsible for registering with your local state as a home school. You are responsible for adhering to any laws and requirements specified by you state. WE MAKE NO REPRESENTATION THAT WE ARE ENROLLING YOU INTO A STATE APPROVED SCHOOL.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We shall (i) use commercially reasonable efforts to make the Services available and accessible, except for: (a) planned downtime (which We shall schedule, to the extent practicable, outside of regular business hours), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (ii) provide the Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You acknowledge that KIS Publishing LLC retains exclusive right, title, and interest in the Service, data files, code, Your Data, and technical documentation (including User Guides), and that this Agreement shall not be construed in any manner as transferring any rights of ownership or license to You or any samples or features or information therein, except as specifically stated herein. All rights not expressly granted are reserved to KIS Publishing LLC. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement and applicable laws and government regulations. You shall not:
(a) make the Services available to anyone other than Users;
(b) sell, resell, rent, sublicense or lease the Services;
(c) upload to the Services or use the Services to store, post, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights (including rights of privacy) of any party; any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation; or any libelous, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, racially, ethnically or otherwise objectionable, or otherwise unlawful or tortious material;
(d) use the Services to store or transmit Malicious Code, or forge headers or otherwise manipulate identifiers in order to disguise the origin of any content you post or store;
(e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;
(f) attempt to gain unauthorized access to the Services or their related systems or networks;
(g) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; or
(h) use of any program, spider, or “bot” to gather or “harvest” information from the Services.
3.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, and on the number of calls You are permitted to make against an application programming interface.
3.4. Non Credentialed Teacher. You acknowledge that You will be acting as the teacher for your student and that We do not provide any direct teaching of the student. We will provide You with training and coaching to ensure that you are teaching correctly. You will commit to allocating as much time as is necessary to ensure the success of the Services.
3.5 Confidentiality. The Parent acknowledges that he/she has been informed that it is the policy of the KIS Publishing to maintain as secret and confidential all information (i) relating to the services, published materials, teaching methods, software , and/or systems used by the KIS Homeschool and all prices, fees, and charges for its services, other than information generally made known to the public by KIS Homeschool or otherwise known in the industry (all such information hereafter referred to as “confidential information”) . The parties confirm that it is reasonably necessary to protect KIS Publishing LLC’s goodwill, contractual relationships and business opportunities, and accordingly the Parent does agree that he/she will not directly or indirectly
i. at any time during the Child’s services by KIS Homeschool or after the Child ceases to be enrolled in KIS Homeschool, divulge to any person, firm or corpo¬ration, other than the KIS Homeschool (hereinafter referred to collectively as a “third party”), or use or allow or cause or authorize any third party to use, any such confidential informa¬tion; and
ii. Parent agrees that, upon termination of services with KIS Homeschool, they will forthwith deliver up to KIS Homeschool any and all documents and material, and copies thereof in their possession or under their control which is the property of KIS Homeschool or which contain or relate to any confidential information of KIS Homeschool.
4. FEES AND PAYMENT FOR SERVICES
4.1. Subscription Fees.
4.1.a You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form (i) fees are quoted and payable in United States dollars, (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of Student subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Student subscription fees are based on annual periods that begin on the subscription start date; therefore, fees for Student Subscriptions will be charged in full on the subscription start date and each annual anniversary thereof. For Subscriptions that are on a payment plan, you will be charged the full monthly amount on the subscription start date and each monthly anniversary thereof. Accounts cancelled within 10 days of the subscription start date are entitled to a full refund. After 10 days there is no refund or cancellation available and all unpaid balances are due immediately. Payment for the application fees of any additional coaching are not refundable.
4.2. Payment Terms. You will provide Us with valid and updated credit information. If You provide credit information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. You are responsible for maintaining complete and accurate billing and contact information in the Services.
4.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is ten (10) or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
4.5. Payment Disputes. We shall not exercise Our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
4.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
5. PROPRIETARY RIGHTS
5.2. Restrictions. You shall not (i) sublicense, distribute, market, transfer, or permit any third party to access the Services except as permitted herein, (ii) create derivative works based on the Services, (iii) copy, modify, frame, or mirror any part or content of the Services, (iv) copy, modify, reverse engineer, reverse compile or otherwise attempt to gain access to elements of the Service not made evident through the normal user interface, (v) access the Services in order to (a) build a competitive product or service, or (b) copy, print, and/or use photographic or other images, clip art, animations, sounds, music, shapes, video clips, and templates provided with the Service for your personal use or distribute those elements outside of the Service unless expressly permitted by KIS Publishing LLC in connection with exercises applicable to a Student, and any and all rights to such permitted copies shall be owned by KIS Publishing LLC and you shall have the right to use them only with the applicable Student and in accordance with any instructions in the Services, (vi) otherwise use the Service and related documentation other than as expressly authorized by this Agreement; or (viii) remove or conceal from view any copyright, trademark, or confidentiality notices appearing on or in the Service and/or documentation or on any output generated by the Service.
USERS ARE PROHIBITED FROM ATTEMPTING TO DEFEAT, BYPASS, OR OTHERWISE CIRCUMVENT ANY PROTECTION MECHANISMS EMPLOYED BY THE SITES AMD APPS TO PROTECT PROPRIETARY RIGHTS IN THE SERVICES.
5.3. Ownership of Your Data; Permission for Anonymized Use. As between Us and You, We exclusively own all rights, title and interest in and to all of Your Data except for your personably identifiable data. You agree that KIS Publishing LLC may use such Data, sanitized as to assure anonymity of the Student(s) and to prevent any identifying characteristics of the Student(s) or User(s), for the purposes of conducting research to be presented at professional conferences, published in scientific journals or other publications and to enhance the KIS Publishing LLC products and services. By entering into this Agreement, Users grant KIS Publishing LLC or any of its representatives a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to all anonymized data collected during the course of or in relation to use of the Services and agree that KIS Publishing may display, publish, use or re-use, alter, or modify in whole or in part, for any medium or any purpose, any such anonymized data or any other derivative works resulting from the use of the Services. The Service will provide you with access to the data via the website so that you may print or view reports of the Student’s performance.
5.4. Suggestions. We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by You, including Users, relating to the operation of the Services.
6. WARRANTIES, INDEMNITIES AND LIMITATIONS
6.1. Changes to Sites and Services. We reserve the right to make changes to the Site and Services at any time and without notice. Changes may include updates, additions or deletions of content, functions or features.
6.2 Our Warranties. We warrant that the Services shall perform materially in accordance with the description given in the training sessions. For any breach of such warranty, YOUR SOLE AND EXCUSIVE REMEDY, AND KIS PUBLISHING’S SOLE AND EXCLUSIVE LIABILITY, SHALL BE TO DISCONTINUE USE OF THE SERVICES WITHOUT FURTHER OBLIGATION FOR SUBSCRIPTION FEES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU MAY NOT ASSERT CLAIMS FOR MONEY DAMAGES ARISING FROM THE USE OF THE SERVICES AND WE AND OUR SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, AND THE LIABILITY OF OUR COMPANY AND SUPPLIERS, SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
6.3. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.
6.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
6.5. Services are Provided “AS IS”. Your use of the Services is at your own risk. We provide the Services “AS IS.” Except as explicitly stated in Section 6.2, We and our suppliers make no express warranties or guarantees about the Services. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE AND OUR SUPPLIERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY THAT THE SERVICES ARE OR WILL BE OF SATISFACTORY QUALITY, ACCURATE, TIMELY, CURRENT, COMPLETE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. WE DO NOT GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE ERROR-FREE, RELIABLE, OR WILL OPERATE WITHOUT INTERRUPTION. BECAUSE SOME STATES DO NOT PERMIT DISCLAIMER OF IMPLIED WARRANTIES, YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS.
6.6. Indemnification and Release by You. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, You hereby release and forever discharge KIS Publishing LLC and its respective officers, directors, shareholders, employees and agents, of and from all actions, causes of action, suits, debts, duties, accounts, bonds, covenants, contracts, guarantees, claims and demands whatsoever that you had, now have or hereafter can, shall or may have of or by any reason of or in any way arising out of any cause, matter or thing whatsoever existing up to the present time and, in particular, without in any way limiting the generality of the foregoing, for and by reason of or in any way arising out of your use of the Services or your violation of this Agreement. You shall defend, indemnify and hold harmless Us and our respective employees, contractors, officers, directors, and agents against any claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such claim; provided, that We (a) promptly give You written notice of the claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
6.7. Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
6.8. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. TERM AND TERMINATION
7.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
7.2.a Homeschool Term of User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for a one (1) year subscription term, unless earlier terminated. Except as otherwise specified in the applicable Order Form, all Homeschool User subscriptions shall automatically renew for additional one year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the then-current pricing for the Services, unless a different pricing for the renewal term was designated in the relevant Order Form or in promotional or one-time offers made to You.
7.2.b Afterschool and Summer School Term of User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for a one (1) month subscription term, unless earlier terminated. Except as otherwise specified in the applicable Order Form, all Afterschool and Summer School User subscriptions shall automatically renew for additional one month, unless either party gives the other notice of non-renewal at least 15 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the then-current pricing for the Services, unless a different pricing for the renewal term was designated in the relevant Order Form or in promotional or one-time offers made to You.
7.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all purchase orders after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
7.5. Surviving Provisions. Sections 1 (Definitions), 4 (Fees and Payment for Purchased Services), 5 (Proprietary Rights), 6.4 (Disclaimer), 6.6 (Indemnification by You), 6.7 (Limitation of Liability), 7.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 8 (Notices, Governing Law and Jurisdiction) and 9 (General Provisions) shall survive any termination or expiration of this Agreement.
8. NOTICES, GOVERNING LAW AND JURISDICTION
8.1. NOTICES. Notices under this Agreement, shall be directed as follows:
KIS Publishing LLC
Attention: Dalia Shkedy
4653 Carmel Mountain Road,
San Diego, CA 92130
8.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, or (ii) the second business day after mailing or transmission by overnight courier or certified mail.
8.3. Governing Law and Jurisdiction. The construction, interpretation, and performance of this Agreement and all transactions related thereto shall be governed by and construed in all respects in accordance with the laws of the State of California, without giving effect to the principles of conflicts of law thereof. All claims and disputes between the parties relating in any way to this Agreement or the performance, interpretation, validity, or breach hereunder (the “Dispute”) shall be submitted to non-binding mediation by either Party to an impartial mediator, agreed to by the parties, and appointed through JAMS in San Diego, California, for a good faith effort at resolution. The mediator shall review the Dispute within thirty (30) days of submission or at such other time provided the parties so agree. Any mediation fee shall be paid equally among the parties. Any Dispute which is not resolved through such mandatory mediation shall be settled by final and binding arbitration before a single neutral arbitrator of JAMS in accordance with its then current commercial arbitration rules in San Diego, California. Judgment on the award rendered by the arbitrator may be entered in any court in California. The parties specifically acknowledge and understand that by agreeing to this provision, they are waiving all rights they have to have claims brought, investigated, and/or adjudicated by an administrative agency, or heard before a judge or jury, that their rights to discovery may be lesser or narrower in arbitration, that there may be fees and costs associated with mediation and/or arbitration that they may not otherwise have, and that they are waiving substantial time that they might otherwise have to make a claim, prepare their case, or investigate their claims.
9. GENERAL PROVISIONS
9.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
9.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
9.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
9.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
9.5. Severability. If any provision of this Agreement is held by a court, agency or similar body of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any purchase order, the terms of this agreement shall prevail.