General Terms & Conditions

DEFINITIONS  
   
“auction services” means the function for Members to place a Bid for an item in an auction on the Website.
   
“Autobid”  means the system on the Website whereby a bid is automatically made to the next bidding increment.
   
“Basket” means the facility on the Website for you to collect together the items that you wish to purchase before proceeding to the Checkout (that is, a virtual shopping basket).
   
“Bid” means an offer by a specific Bidder (which is accepted by R & C) to pay a specific Bid Amount for an item in an auction on the Website.
   
“bid amount” means the value in Australian dollars bid for a particular item in an auction on the Website.
   
“bid increment” means the amount that is permitted by R & C to separate possible Bid Amounts.
   
“Bidder”  means a Member who has placed a Bid for an item in an auction on the Website.
   
“Buyer” means the Successful Bidder or a person who otherwise places an order on the Website for an item pursuant to this Customer Agreement.
   
“buyer’s premium”  means the service fee that R & C charges on the successful winning bid(s) in any auction on the Website.  It is a percentage of the winning bid and includes GST.
   
“Checkout” means the facility on the Website for you to purchase some or all of the items in your Basket.
   
“Customer Agreement:” means this document, which is entitled “R & C Solutions Pty Limited Customer Agreement”.
   
“fixed price services” means the function on the Website for Members to make an offer to buy an item for a fixed price pre-determined by R & C.
   
“GST” means the Goods and Services Tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
   
“item” means a product offered for sale at the Website pursuant to this Customer Agreement.
   
“Member” means you when you have successfully registered on the Website.
   
“My Account” means the facility on the Website for you to view, amend or update your personal details and to view information about your current transactions.
   
“the Policies” means any R & C policies, including the Privacy Policy (accessible at www.dontmissout.com.au/help/privacy/aspx). 
   
 “R & C” means R & C Solutions Pty Ltd (ACN 128 750 201) trading as “Don’t Miss Out” of 56-61 Qantas Drive, Eagle Farm QLD 4009.
   
“R & C Registration Forms” means the Normal Account Registration Form and the Premium Account Registration Form.
   
“Services” means the online auction and fixed price services offered by R & C on the Website.
   
“Successful Bidder: means the Bidder who is determined by R & C, in accordance with this Customer Agreement, to have the right to purchase a specific item in an auction on the Website.
   
“Terms and Conditions” means the R & C General Terms and Conditions (accessible at www.dontmissout.com.au/help/terms.aspx). 
   
“Total Tax Invoice” means the total amount of any monies owing by you, as the Buyer, to R & C, including the final bid price or fixed price for the item, any buyer’s premium, any delivery and handling charges and the applicable GST.
   
“Website” means the website, www.dontmissout.com.au.
   
“you” means you as the customer, Member, Bidder, Buyer etc.
   
GENERAL INFORMATION
     
1 This Customer Agreement sets out the specific terms on which R & C will allow you to access and use the Services.
     
2 You must read and ensure that you understand this Customer Agreement before you register on the Website.  Upon registration, you are deemed to have accepted this Customer Agreement and will be bound by it in your use of the Services.
     
3 R & C reserves the right to amend this Customer Agreement whenever it considers it appropriate to do so.  R & C will post a notice of any such amendments on the Website and these amendments will come into effect five (5) days after notification.  By continuing to use the Services after the amendments come into effect, you are deemed to have accepted the amendments.
     
4 Upon registration, you are also deemed to have accepted the R & C General Terms and Conditions and the Policies, including the R & C Privacy Policy.  You must therefore read and ensure that you understand the Terms and Conditions and the Policies before you register on the Website.
     
     
REGISTRATION AS A MEMBER
     
Eligibility for Membership
     
5 Membership of the Website is only available to, and the Services may only be used by, individuals who are capable of forming a legally binding contract under the applicable law.  In particular, membership is not available to persons under the age of eighteen (18) years.
     
Membership Registration Process
     
6 Before you are able to use the Services, you must register as a Member.
     
7 The registration process is free of charge.
     
8 To use R & C’s auction services, you must complete the Premium Account Registration Form.
     
9 To use R & C’s fixed price services, you must complete either the Premium Account Registration Form or the Normal Account Registration Form.
     
10 If you register for a Normal Account, you may upgrade your account to a Premium Account by registering your credit card details on the “My Account” facility on the Website.
     
11 The R & C Registration Forms require you to provide R & C with your – 
     
  a. name, age and date of birth;
  b. address;
  c. telephone number;
  d. delivery and account address;
  e. email address;
  f. credit card details (on the Premium Account Registration Form only); and
  g. user name and password details.
     
Membership Information
     
12 R & C will use its best endeavours to maintain the integrity of its records.  Upon the termination of your membership (either by R & C or by you), R & C may remove or destroy all information concerning you that is in its possession.
     
13 R & C will take all reasonable steps to act in accordance with the Privacy Policy on its Website.  R & C will only collect information as set out in the Privacy Policy and will only disclose this information to third parties as required by law.
     
Your Responsibilities in Relation to Registration
     
14 You must not provide false, inaccurate or misleading or deceptive information when registering on the Website.  You must only use your own name and other personal details when registering on the Website.
     
15 You must update your registration details if there have been any changes since you last used the Services.
     
16 Membership is non-transferable.  You must not allow others to use your account and must not transfer or sell your account details to another person (either temporarily or permanently).
     
17 The security of your account (in particular, your user name and password) is your responsibility.
     
18 R & C bears no responsibility if another person gains access to your account using your user name and password.  R & C assumes that any transaction that is conducted using your user name and password has been authorized by you.  You are therefore responsible for completing any transaction that is conducted using your user name and password, regardless of whether this transaction has, in fact, been authorized by you.
     
19 You must notify R & C as soon as you become aware that there has been unauthorized use of your user name and password.  You will not be responsible for any authorized transaction conducted using your user name and password after you give such notification to R & C.
     
     
RESTRICTION OR TERMINATION OF MEMBERSHIP
     
Restriction, Suspension or Termination of Membership by R & C
     
20 Without limiting other remedies available to R & C at law, in equity or under this Customer Agreement, R & C may, without notice to you and in its sole discretion (which shall be exercised reasonably, having regard to the circumstances) issue you with a warning, restrict your use of the Website, temporarily suspend, indefinitely suspend or terminate your membership in the following circumstances:
     
  a. you have, or R & C believes that you have, breached this Customer Agreement, the Terms and Conditions or the Policies;
  b. you have, or R & C believes that you have, failed to act in accordance with the spirit of this Customer Agreement, the Terms and Conditions or the Policies;
  c. R & C is unable to verify or authenticate any information that you provide to it;
  d. you provided false or misleading information to R & C (for example, when registering or updating your details);
  e. R & C suspects or believes that your actions may cause loss or damage to, or otherwise unlawfully harm, you, its Members, third parties or R & C;
  f. R & C suspects or believes, or is informed by a government authority, that you (by conviction, settlement, insurance or escrow investigation or otherwise in its sole discretion) have engaged or may engage in fraudulent activity using, or otherwise in connection with, your use of the Website;
  g. you are the Buyer and you fail, for any reason, to pay the Total Tax Invoice; and,
  h. R & C suspects or believes that you have engaged in bid manipulation (as described in cl 58). 
     
21 You will have no claim against R & C in respect of any decision by it to restrict, suspend or terminate your membership.
     
22 If your membership is restricted, suspended or terminated by R & C, you will not be permitted to re-register as a Member.
     
Termination of Membership by You
     
23 You may cancel your membership at any time, provided that you are not currently the highest bidder in an auction, by sending an email to R & C requesting the cancellation.
     
24 If you are the highest bidder in an auction, you may only close your account when that auction has concluded and, if R & C has accepted your offer to purchase the relevant item, payment of the Total Tax Invoice has been processed.
     
     
PURCHASING A FIXED PRICE ITEM
     
25 To place an order for a fixed price item, you complete the “Basket” on the Website and then click the “Checkout” button.
     
26 The placement of the order by you is confirmation of an offer to R & C to purchase the item you have selected subject to this Customer Agreement, the Terms and Conditions and the Policies.  The information on the Website is an invitation to treat and not an offer by R & C to supply you with the relevant item.  However, R & C will use all reasonable endeavours to supply you with the item selected.
     
27 Following the placement of your order, R & C will send you an order summary.  The order summary will be sent to the email address specified on your Registration Form.  The order summary contains the following information:
     
  a. order number;
  b. date of order;
  c. description of item(s) ordered;
  d. status of the order (paid or unpaid);
  e. payment method;
  f. fixed price of the item(s);
  g. cost of delivery (and any delivery discount); and,
  h. time within which item will be dispatched by R & C.
     
28 The order summary constitutes an acceptance by R & C of the offer by you to purchase an item at a fixed price.
     
29 The details contained in the order summary will also be automatically posted in your “My Account” section on the Website.
     
30 R & C will send you by email a delivery advice when any item purchased has been dispatched to you..
     
31 R & C reserves the right, in its sole discretion, to refuse to accept an order or to cancel an order at any time, including after the order summary has been sent.  If R & C is unable or unwilling to accept your order after payment has been made, it will advise you by email or telephone and arrange a refund of the payment.
     
     
     
AUCTION SERVICES  
     
Creating an Auction  
     
32 R & C may offer items as a single lot or as multiple lots within an auction. In relation to any auction, R & C will also nominate:
     
  a. the starting time of the auction;
  b. the auction period; 
  c. the starting price of the auction;
  d. the starting price for each item to be sold in the auction; 
  e. the quantity of items for auction;
  f. the maximum number of items that may be bid for; and,
  g. the bid increments.
     
33 R & C reserves the right, at any time, to alter the quantity of items for auction, the maximum number of items that may be bid for and the bid increments if it considers it appropriate to do so.
     
Bidding in an Auction
     
34 Once you have successfully registered for R & C’s Premium Account, you are able to commence bidding in auctions on the Website.
     
35 Bidding in an auction is free of charge.
     
36 To place a Bid – 
     
  a. log into your account;
  b. click on the icon “Bid Now”; and,
  c. you can then either:
  i. place a specific bid for an item; or
  ii. choose “Autobid”, which automatically makes bids on your behalf up to your chosen bidding limit or your successful bid.
     
37 No Bid below the nominated starting price will be accepted.
     
38 Once a Bid has been placed, it cannot be retracted in any circumstances.  You should therefore consider each Bid carefully before placing it.
     
39 It is your responsibility to read the description of the item and view any special terms and conditions that may apply to any item prior to bidding.  By bidding on an item, you agree to be bound by the conditions of sale included in the item’s description so long as those conditions of sale are not in violation of this Customer Agreement or otherwise unlawful.
     
40 The placement of a bid by you is confirmation of an offer by you to R & C to purchase the item you have selected subject to this Customer Agreement, the Terms and Conditions and the Policies.  The information on the Website is an invitation to treat and not an offer by R & C to supply you with the relevant item.  However, R & C will use all reasonable endeavours to supply you with the item selected.
     
41 If you are currently the highest bidder in an auction, you will be unable to bid again in that auction until your Bid is beaten by the Bid of another Member.  If your Bid is beaten, R & C will send an email to the email address specified on your Registration Form informing you that your Bid has been beaten and inviting you to place a higher Bid.
     
Conclusion of an Auction
     
42 If no new successful Bids (that is, highest Bids in the auction) have been placed during the five (5) minutes immediately prior to the conclusion of the nominated auction period, the auction concludes at the end of that nominated auction period
     
43 If new successful Bids have been made during the five (5) minutes immediately prior to the conclusion of the nominated auction period, the auction will be extended by five minutes from the time of that Bid.   The auction will continue to be extended until there are no more Bids for a five minute period.  There is no limit on how many times the auction can be extended.
     
44 R & C reserves the right, in its absolute discretion, to extend the nominated auction period or close an auction before the end of the nominated auction period, for example, if R & C suspects bidding manipulation or there are system malfunctions, delays on the Website or disruptions to the Services.
     
45 If there is only one item for auction, the Successful Bidder is the Bidder who has the highest bid amount at the time that the auction concludes.
     
46 If there is only one item for auction, the Successful Bidder is the bidder with the highest bid amount for that item at the conclusion of the auction.
     
47 If there are two or more items for auction, the Successful Bidder is the bidder with the highest bid amount per item at the conclusion of the auction. If there are two or more bidders with the same highest bid amount per item, the Successful Bidder is the bidder who has bid on the most items in that auction. 
     
48 If there are two or more items for auction and the Successful Bidder did not bid on the entirety of these items, the Successful Bidder in relation to the ‘left over’ items will be the bidder with the second highest bid amount.  If there are two or more bidders with the same second highest bid amount, the Successful Bidder is the bidder who has bid on the most items in that auction.  The same process will be followed until all the items in an auction have been allocated. 
     
49 R & C reserves the right, in its sole discretion, to refuse to accept a Bid or to cancel a Bid. If R & C is unable or unwilling to accept your Bid for an item after payment has been made, it will advise you by email or telephone and arrange a refund of the payment.
     
50 If you are the Successful Bidder, your order will not be formally accepted until R & C sends you an email confirmation.  This will be sent to the email address specified in your Registration Form.  The email confirmation contains the following information:
     
  a. notification that you are the Successful Bidder;
  b. description of the item(s) bid on;
  c. amount of the successful Bid;
  d. amount of the Total Tax Invoice;
  e. notification that your credit card has been charged for the amount of the Total Tax Invoice; and,
  f. time within which item(s) will be dispatched.
     
51 The details contained in the email confirmation will also be automatically posted in your “My Account” section on the Website.
     
52 R & C will send you by email a delivery advice when any item purchased has been dispatched to you.
     
     
RESPONSIBILITIES OF THE BUYER
     
53 If you make an offer to purchase an item for a fixed price or you are the Successful Bidder, you must complete the transaction unless the transaction is prohibited by law or by this Customer Agreement.
     
54 R & C will use its best efforts to notify you that you are the Buyer.  However, even if you do not receive the order summary (for the purchase of a fixed price item) or the email confirmation (for the purchase of an item for auction), you are still responsible for the completion of the transaction.  It is your responsibility to monitor the status of any auction in which you have placed a bid to determine whether you are the successful bidder.
     
     
FINANCIAL ARRANGEMENTS
     
Bidding in an Online Auction
     
55 In order to open a Premium Account and to use the online auction services, you must provide R & C with details of an acceptable credit card.
     
56 All bids must be made in Australian dollars.  The bidding proceeds in increments that are pre-defined by R & C when creating each auction.
     
57 The purchase of an item for auction is subject to the payment of buyer’s premium.  Buyer’s premium is not applicable to the purchase of a fixed price item.
     
58 You agree not to engage in any practice that may hinder free and open competition between bidders.  This includes, but is not limited to, any conduct which unfairly induces other users to make bids or control the bid price, or the use of secondary registrations, associates or aliases to artificially raise the bidding of an item.  All Members are also prohibited from communicating with each other for the purpose of manipulating the final price of any item.
     
Payment Method  
     
General    
     
59 The Buyer must pay the Total Tax Invoice.  The Total Tax Invoice is calculated, and must be paid for, in Australian dollars.
     
60 All goods sold by R & C are subject to the payment of GST.  All tax invoices issued to you by R & C will be inclusive of GST. 
     
61 Payment must be made at the time of sale.  R & C does not offer the option of placing items on lay-by or paying by installments.
     
Fixed Price Purchases
     
62 If you are the Buyer of a fixed price item, you must generally pay the amount of the Total Tax Invoice at the “Checkout” facility on the Website.  It is not until your payment is processed that your offer to purchase the item is submitted to R & C.
     
63 You are generally required to pay the amount of the Total Tax Invoice by either PayPal or credit card.  Paypal and credit card payments will be processed immediately following the submission of the fixed price order.
     
64 If, however, the Total Tax Invoice exceeds $5,000.00 or any such other amount as R & C in its discretion advises you, R & C will contact you directly and give you the option of transferring the amount of the Total Tax Invoice by electronic funds transfer to a bank account specified by R & C.  If you choose not to use this method, you must pay the Total Tax Invoice by Paypal or credit card.
     
Online Auction  
     
65 If you are the Successful Bidder, you must generally pay the amount of the Total Tax Invoice by credit card.
     
66 By opening a Premium Account (and providing R & C with your credit card details), you authorize R & C to automatically charge your credit card for the full amount of the Total Tax Invoice immediately following the conclusion of the auction.  If there is insufficient credit available on your credit card, you authorize R & C to keep charging your credit card with payments until the Total Tax Invoice is paid.
     
67 If, however, the Total Tax Invoice exceeds $5,000.00 or any such other amount as R & C in its discretion advises you, R & C will contact you directly and give you the option of transferring the amount of the Total Tax Invoice by electronic funds transfer to a bank account specified by R & C.  If you choose not to use this method, you must pay the Total Tax Invoice by credit card.
     
Failure to Pay and Rescission of Sale
     
68 Without limiting other remedies available to R & C at law, in equity or under this Customer Agreement, R & C may, without notice to you and in its sole discretion (which shall be exercised reasonably, having regard to the circumstances) to rescind the sale of any item in the following circumstances:
     
  a. R & C is unable to contact you;
  b. a credit card payment is not processed and accepted due to there being insufficient credit on your credit card; or
  c. for any other reason, you fail to pay the Total Tax Invoice.
     
     
ITEMS FOR SALE OR AUCTION
     
Description of Items
     
69 R & C will use its best endeavours to ensure that any information provided about items for sale or auction is as accurate as possible.   This information is only supposed to assist you in deciding whether to make a bid and may not fully describe the item.  You therefore purchase any item in reliance on your own opinion as to its suitability for his or her use.
     
Withdrawal and Re-Offer of Item for Sale
     
70 R & C reserves the right to withdraw an item from an online auction or fixed price sale where it considers it appropriate to do so.  For example, where the item is no longer available to R & C or where there has been an error in the listing of the item or the item description.
     
71 If R & C decides to withdraw an item from an online auction or fixed price sale, R & C may thereafter decide to re-offer the item for auction or sale for a fixed price.
     
Ownership and Risk  
     
72 Ownership of an item, and the risk in relation to that item, passes to the Buyer upon delivery of the item to the Buyer.
     
Delivery of Items  
     
73 R & C reserves the right to withhold delivery of a purchased item until all monies owing by the Buyer in relation to that item have been paid.
     
74 R & C sells and delivers items only within Australia.
     
75 R & C uses Australia-wide couriers to deliver all items. 
76 R & C will use its best endeavours to ensure that delivery occurs within ten (10) business days from the date that your payment is received by R & C.
     
77 Items will only be delivered to the specified address on your Registration Form.  The delivery address may be changed on your Registration Form, however, you will not be able to change the delivery address after the purchase of the relevant item.
     
78 You must give a written acknowledgement upon delivery of the item.
     
Return of Items  
     
79 Some items sold by R & C are sold with a manufacturer’s warranty.  If the warranty is still in effect, you should contact the manufacturer to arrange for replacement or repair in accordance with the terms and conditions of that warranty.
     
80 If there is no manufacturer’s warranty in effect in relation to a purchased item, you must follow the procedure set out below.
     
81 You may not return any purchased item on the basis that you have changed your mind about the item or you no longer want that item.
     
82 You may only return any purchased item if the item is broken at the time of delivery, there was a material error in the item description on the Website or the item does not operate within the first fourteen (14) days from the date of delivery.  However, you may not return a purchased item on the basis that it is broken, inoperative or incomplete if the item was described as such in the item information on the Website.  In those circumstances, R & C will not replace the item or give a refund for the price of the item.
     
83 If an item is broken at the time of delivery or there was a material error in the item description on the Website, you must immediately contact R & C.  A customer service representative will then contact you within forty-eight (48) hours of your advising us that the item is broken to determine the status of the item.
     
84 If the customer service representative determines that the item was broken at the time of delivery, R & C will arrange to replace that item.  A refund of the Total Tax Invoice will only be given where replacement goods cannot be provided. 
     
85 If the customer service representative determines that the item was not broken at the time of delivery, R & C may, in its absolute discretion, refuse to replace the item or offer you a refund.
     
86 If, within fourteen (14) days of delivery of your purchased item, the item becomes inoperative or defective, you must notify R & C immediately.  R & C will arrange to replace the item or provide a refund if a replacement item cannot be provided.
     
87 If a claim that the item is inoperative or defective is made more than fourteen (14) days from the date of delivery, R & C will determine each such claim in its absolute discretion.
     
88 In circumstances where the item is replaced or the price refunded, you are required to contact R & C to make arrangements for the return of the item.  Before an item can be returned, R & C will provide you with a return authorization form and a return authorisation number (RTN).  An item cannot be returned without a RTN and should be returned to R & C within fourteen (14) days of the issue of the RTN. An item should be returned in the original unmarked packaging, including any accessories, manuals, documentation and registration provided with the goods.
     
89 R & C will use its best endeavours to ensure that any replacement item is delivered within ten (10) business days.  On the delivery of the replacement item, that item becomes your property.  The returned item becomes the property of R & C.
     
90 You will be responsible for re-delivery costs on any item not claimed by you or not delivered as a result of an incorrect or insufficient address.
     
91 If R & C determines that you are entitled to a refund, it will, within 14 days, either refund your credit card or, if you paid for the purchase by electronic funds transfer, the bank account from which the monies were transferred by you.
     
     
OPERATION OF THE WEBSITE
     
92 You must not:
     
  a. damage, disrupt or interfere with (or attempt to do so) the proper working of the Website, the Services being offered on the Website or the networks connected to the Services;
  b. disclose or share your user name and password to third parties; or
  c. use another person’s user name and password for an authorized purpose
     
93 R & C does not warrant that the Services will be available at all times or at any specific times.  R & C is not responsible in the event that a transaction is not processed due to technical difficulties beyond R & C’s control affecting the Website.
     
94 If there is any disruption to the auction services on the Website that is outside the control of R & C, R & C may, in its absolute discretion:
     
  a. void any auction;
  b. re-open a voided auction at the minimum starting price;
  c. re-open a concluded auction for a further period;
  d. extend the auction period;
  e. withdraw any notifications to Successful Bidders that have been sent out; or
  f. alter the minimum price for an item so as to correct any errors caused by a disruption to the auction services on the Website.
     
95 If there is any disruption to the fixed price services on the Website that is outside the control of R & C, R & C may, in its absolute discretion:
     
  a. cancel the sale of any fixed price item;
  b. withdraw any notifications to Buyers that have been sent out;
  c. re-advertise the item for sale on whatever terms and conditions R & C considers appropriate; or
  d. extend the period for the sale.
     
96 R & C reserves the right to periodically shut down the Website for routine maintenance.  The time and length of any shut down will be notified to you on the Website.
     
     
MISCELLANEOUS WARNINGS
     
97 R & C is not liable for any loss that you suffer because of misdirected emails or misplaced deliveries that result from inaccurate or incomplete information provided by you.
     
98 R & C is not responsible for any loss or damage that you suffer as a result of your failure to maintain the security of your user name and password.
     
99 Except to the extent required by law, R & C makes no promise that any item is fit for a particular purpose, that any item will be able to be repaired, replaced or serviced in excess of any obligations under the relevant warranty or that R  & C will be able to replace or exchange any item found to be defective on delivery.
     
100 The item description on the Website may refer to an original or recommended retail price.  This price is provided at the time of original sale and may not be current at the time of the online auction or sale.
     
101 R & C does not accept responsibility for any loss or damage, however caused (including through negligence) which a Member may directly or indirectly suffer in connection with his or her use of the Website, nor does R & C accept any responsibility for any such loss arising our of a Member’s use of or reliance on information contained on or accessed through the Website.
     
     
LIMITATION OF LIABILITY
     
102 Where the Trade Practices Act 1974 (Cth) applies to transactions between you and R & C, R & C’s liability for any breach of any implied conditions and warranties (other than a conditional warranty implied by s 49 of the Act) will be limited at R & C’s option to the replacement of the item or re-supply of the same item or the payment of the cost of replacing the item or of acquiring an equivalent item.
     
     
WAIVER    
     
103 If R & C does not choose to enforce any term or condition of this Customer Agreement, such non-enforcement does not constitute a waiver of such term or condition and does not affect R & C’s right to act with respect to subsequent or similar breaches.
     
     
SEVERABILITY  
     
104 The provisions of this Customer Agreement are severable.  If any provision of this Customer Agreement is held to be invalid or unenforceable, in whole or in part, that provision will be severed and the remaining provisions will remain valid and enforceable.
     
     
APPLICABLE LAW  
     
105 This Customer Agreement is governed in all respects by the laws of the State of New South Wales, Australia.  You and R & C irrevocably submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia.
     
     
ASSIGNMENT  
     
106 This Customer Agreement may be assigned by R & C to a third party without your consent in the event of a sale or other transfer of some or all of the assets of R & C.  In the event of a sale or transfer, you will remain bound by this Customer Agreement.