Please read this Lookback Service Agreement (this “Agreement”) carefully because it is an agreement between you, either on behalf of yourself or on behalf of a company, as our customer (“Customer”) and Lookback Group, Inc. (“Lookback”), and governs Customer’s access to and use of Lookback’s SaaS (software-as-a-service) platform and related services, including Lookback’s website, the Lookback Services (as defined below), the Lookback Applications (as defined below) and the Lookback SDK (as defined below) (collectively, the “Lookback Platform”).
Customer’s use of and access to the Lookback Platform is conditioned upon Customer’s compliance with this Agreement and all applicable laws. By checking the box next to 'I accept the terms of the Lookback Service Agreement', or by accessing or using the Lookback Platform, Customer is bound by this Agreement. If you are an individual accessing and using the Lookback Platform on behalf of Customer, you represent and warrant that you have the authority to bind Customer to this Agreement.
1.1 “Authorized User” means a Collaborator or an Observer.
1.2 “Collaborator” means an employee, consultant or independent contractor of Customer (and, if Customer is an agency that provides services to clients, of Customer’s clients) who (i) has received login and password credentials to access and use the Lookback Services and (ii) is registered online and has created or been assigned to a Collaborator account to access and use the Lookback Services.
1.3 “Effective Date” means the date on which Customer signs up for the Lookback Services, including agreeing to the terms of this Agreement and providing a valid payment method.
1.4 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.5 “Lookback Applications” means the Lookback software and mobile applications, including any Upgrades, available for download or use via the App Store, Google Play Store, or Chrome Web Store that give Participants and/or Authorized Users access to the Lookback Services to create and/or view Sessions through their device(s), as applicable.
1.6 “Lookback Services” means, the services provided by Lookback via its SaaS platform, in accordance with this Agreement, that enables software application and device providers to perform user research.
1.7 “Observer” means an employee, consultant or independent contractor of Customer (and, if Customer is an agency that provides services to clients, of Customer’s clients) who (i) has received login and password credentials to access and use the Lookback Services and (ii) is registered online and has created or been assigned to an Observer account to access and use the Lookback Services.
1.8 “Participant” means an individual, authorized by Customer, who, via the Lookback Platform, provides feedback for or participates in a test of an application, website, prototype, or other method of interaction.
1.9 “Session” means a recording or live stream, created or enabled by the Lookback Services, of a Participant’s interaction with an application, website, prototype, or other software.
1.10 “Upgrades” means with respect to the Lookback Platform, upgrades, updates, bug fixes and releases.
2. Use of Lookback Platform
2.2 Grant of License. Subject to Customer’s compliance with the terms and conditions of this Agreement, including Customer’s payment of all Fees (as defined below) then due and payable under this Agreement, Lookback grants to Customer a non-exclusive, non-assignable, non-transferable (except as specified herein), worldwide, revocable, limited license during the Term: (a) to use, and allow Customer’s Authorized Users to use the Lookback Platform for Customer’s business purposes; (b) to use the Lookback Applications solely for purposes of enabling Sessions in accordance with the terms of this Agreement; and (c) to allow Participants invited by Customer to participate in Sessions.
2.3 License Restrictions. Except as expressly authorized in this Agreement, Customer will not, nor will it permit any third party, to: (a) copy or modify any part of the Lookback Platform; (b) distribute, transfer, sublicense, lease, lend or rent all or any part of the Lookback Platform to any third party; (c) except as expressly allowed in this Agreement, use the Lookback Platform on behalf of a third party; (d) make the Lookback Platform available to any non-Authorized Users or non-Participants through any means, including, but not limited to, by uploading any part of the Lookback Platform to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services; (e) download, display, distribute and/or upload Sessions other than via the Lookback Services, or the Lookback player available from the Lookback website for commercial or any other purposes, to third parties who are not Authorized Users; (f) allow access to or use of the Lookback Services by anyone other than Authorized Users; (g) allow more than one (1) Authorized User to use or share the same Account; (h) interfere or disrupt the Lookback Platform by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature through the Lookback Platform; or (i) disassemble, decompile or reverse engineer the Lookback Platform, except to the extent such restriction is prohibited by applicable law.
2.4 Limited Rights. Customer’s rights in the Lookback Platform will be limited to those expressly granted in this Agreement. Lookback reserves all rights and licenses in and to the Lookback Platform not expressly granted to Customer under this Agreement.
2.5 Feedback. Customer may provide Lookback with feedback, comments and suggestions for improvements to the Lookback Platform (the “Feedback”). All Feedback that Customer provides to Lookback will be the sole and exclusive property of Lookback. Except to the extent the Feedback contains any of Customer’s Confidential Information, Customer hereby irrevocably transfers and assigns to Lookback and agrees to irrevocably assign and transfer to Lookback all of Customer’s right, title and interest in and to all Feedback, including all Intellectual Property Rights embodied therein.
2.6 Ownership. Customer expressly acknowledges that, as between Lookback and Customer, Lookback and its licensors own all worldwide right, title and interest in and to the Lookback Platform, including all worldwide Intellectual Property Rights embodied therein. Customer will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on the Lookback Platform as delivered to Customer. Customer will reproduce such notices on all copies it makes of the Lookback SDK. As between Lookback and Customer, Lookback expressly acknowledges that Customer owns all worldwide right, title and interest to the content of the Sessions and Customer’s Confidential Information, including all worldwide Intellectual Property Rights embodied therein. For the avoidance of doubt, unless otherwise mutually agreed to in writing by Lookback and Customer, in no event will Lookback be granted any license, title, or access to the content of the Sessions, nor will Lookback attempt to access the content of the Sessions for any other purpose than resolving issues affecting the Services and/or other Customers.
3.1 Fees. Customer will pay Lookback the applicable fees set forth at lookback.io/pricing (“Fees”).
3.2 Payment Terms. Customer agrees that Lookback will charge Fees to Customer’s credit card automatically, beginning on the Effective Date and every thirty (30) days thereafter. Customer’s payment obligations are non-cancelable and Customer’s payments are non-refundable.
3.3 Taxes. All Fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including, but not limited to, sales, use and withholding taxes) associated with this Agreement or use of the Lookback Platform, as applicable, except for taxes based on Lookback’s income. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind. If Customer pays any withholding taxes that are required to be paid under applicable law, upon written request, Customer will furnish Lookback with written documentation of all such tax payments.
4.1 Representation and Warranty. Lookback represents and warrants that it will provide the Lookback Services in accordance with the applicable Service Level Agreements.
4.2 Disclaimers. Lookback does not warrant that the Lookback Platform will meet Customer’s requirements or will operate in the combinations that Customer may select for use, that the operation of the Lookback Platform will be error-free or uninterrupted, or that all the Lookback Platform’s errors will be corrected. EXCEPT AS STATED IN THIS AGREEMENT, LOOKBACK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LOOKBACK OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
5.1 Indemnity by Lookback. Lookback will indemnify, defend and hold Customer and its officers, employees and agents harmless from and against any third-party claims, liabilities, damages, losses and expenses, including without limitation, reasonable attorney’s fees and costs (collectively, the “Losses”), arising out of or in any way connected with any claim or action brought against Customer to the extent that it is based upon a claim that the Lookback Platform, as provided by Lookback to Customer under this Agreement and used within the scope of this Agreement, infringes any Intellectual Property Rights of a third party, provided that Customer: (a) notifies Lookback in writing of the claim within thirty (30) days of Customer being notified of such claim; (b) grants Lookback sole control of the defense and settlement of the claim; and (c) provides Lookback, at Lookback’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.
5.2 Indemnity by Customer. Customer agrees to indemnify, defend and hold Lookback harmless from and against any claims, liabilities, damages, losses and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with (i) Customer’s, its Authorized Users’ and Participants’ use of the Lookback Platform, (ii) any breach or alleged breach of this Agreement by Customer or by any of its Authorized Users or Participants, or (iii) any violation of any laws, regulations, rules, codes or statutes by Customer or by any of its Authorized Users or Participants.
5.3 Injunctions. If Customer’s use of the Lookback Platform hereunder is, or in Lookback’s opinion is likely to be, enjoined due to the type of claim specified in Section 5.1 above, Lookback will, at its sole option and expense: (a) procure for Customer the right to continue using such Lookback Platform under the terms of this Agreement; (b) replace or modify such part of the Lookback Platform so that it is non-infringing and substantially equivalent in function and performance to the enjoined Lookback Platform; or (c) if options (a) and (b) above cannot be accomplished despite Lookback’s reasonable efforts, then Lookback may terminate Customer’s rights and Lookback’s obligations hereunder with respect to such Lookback Platform.
5.4 Exclusions. Notwithstanding the terms of Section 5.1, Lookback will have no liability for any infringement or misappropriation claim to the extent that it results from: (a) unauthorized modifications to the Lookback Platform made by a party other than Lookback, if a claim would not have occurred but for such modifications; (b) the combination, operation or use of the Lookback Platform with equipment, devices, software or data not supplied by Lookback, if a claim would not have occurred but for such combination, operation or use; (c) Customer’s failure to install, use or accept Upgrades, updated or modified Lookback Applications or Lookback SDK provided by Lookback at no additional charge to avoid a claim; or (d) Customer’s use of the Lookback Platform other than in accordance with this Agreement.
6.1 Definition. “Confidential Information” means: (a) the Lookback Platform; and (b) any business or technical information of Lookback or Customer that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, or under the circumstances a person exercising reasonable business judgment would understand to be confidential or proprietary. For clarity, all Customer data (including but not limited to the content of the Sessions) and all technical and non-technical information concerning or related to Customer’s products, services, online properties (including the discovery, invention, research, improvement, development, marketing, or sale thereof), financial data and models, business and marketing plans and any information related to the foregoing constitutes the Confidential Information and property of Customer. The terms and conditions of this Agreement will be deemed the Confidential Information of both parties.
6.2 Use and Disclosure Restrictions. Neither party will use the other party’s Confidential Information except as necessary for the performance of this Agreement or will disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the purpose of performing this Agreement; provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance.
6.3 Exceptions. The obligations and restrictions in Section 6.2 will not apply to any information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure of such information by the disclosing party; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (d) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party; (e) is required to be disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; or (f) is required to be disclosed under applicable securities regulations. Further, neither party will be restricted from disclosing the other party’s Confidential Information, on a confidential basis, to (i) its legal or professional financial advisors or (ii) present or future providers of venture capital and/or potential private investors in or acquirers of the receiving party.
7. Your Data
7.1 Responsibility. You are solely responsible for the development, content, and use of your data. You will ensure that your data, and your use of it, complies with this Agreement and any applicable law. You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of your data. You represent and warrant that you will not store or process protected health information using the Service. We will use commercially reasonable efforts to prevent the unauthorized disclosure or destruction of your stored information and data.
7.2 Data Processing. For the purposes of this Section, the terms "controller", "data subjects", "personal data", "processor", "processing", and “supervisory authority” shall have the meaning given to them by the European Union Regulation 2016/679 (“GDPR”). For any personal data that you include in your use of our Services and that you are the controller of (the "Customer Personal Data") we will process on your behalf as a processor. For the avoidance of doubt, for any personal data collected from Participants you are the controller.
7.2.1 Applicable laws. Each party undertakes to comply with all data protection legislation applicable to it ("Data Protection Law") and shall not knowingly cause the other to breach Data Protection Law.
7.2.2 Processing on your instructions. We will process Customer Personal Data only in accordance with your documented instructions and not for our own purposes. If we are required to process Customer Personal Data for any other purpose by European Union or Member State law to which we are subject, we shall inform you of this requirement before the processing, unless that law prohibits this on important grounds of public interest.
7.2.3 Personnel. We will ensure that our personnel who have access to the Customer Personal Data have committed themselves to confidentiality and are aware of and comply with our duties and their personal duties and obligations under this Agreement.
7.2.4 Technical and Organizational Security Measures. We will implement appropriate technical and organizational security measures to ensure a level of security appropriate to the risks that are presented by the processing of Customer Personal Data. A description of those technical and organizational security measures is located at our security page. In case of a personal data breach which affects Customer Personal Data, we will notify you without undue delay after becoming aware of it.
7.2.5 Sub Processors. You acknowledge and agree that we may retain our affiliates and other third parties as sub-processors (all together "Sub-Processors") in connection with the provision of the Services having imposed on such Sub-Processors reasonably similar data protection obligations as are imposed on us under this Agreement. We will be liable to you for the performance of the Sub-Processors' obligations. We will inform you in advance of any changes concerning the addition or replacement of third party processors.
7.2.6 Assisting With Your Obligations Towards Data Subjects. Taking into account the nature of the processing, we will assist you by appropriate technical and organisational measures insofar as it is possible to fulfill your obligations to respond to requests from data subjects exercising their rights.
7.2.7 Assisting With Your GDPR Compliance. Taking into account the nature of the processing and the information available to us, we will assist you, at your cost, to ensure compliance with the obligations under the GDPR with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
7.2.8 Privacy Shield. In order to ensure that adequate safeguards are in place for the processing of Customer Personal Data from the European Union in the United States, Lookback. has obtained EU-U.S. Privacy Shield certification.
7.2.9 Destroy or Return Data. Upon termination of this Agreement or upon your request, we will destroy or return all Customer Personal Data to you (unless European Union or Member State law requires storage of the Customer Personal Data). Some Customer Personal Data may be retained in encrypted backups for up to 90 days. IP-addresses from server logs and other information that is strictly required for the purposes of ensuring network and information security may be stored for up to a year.
7.2.10 Audits. We will make available to you all information reasonably necessary to demonstrate compliance with the obligations laid down in this section and allow for and contribute to, at your cost, audits, including inspections, conducted by you or an auditor mandated by you.
8. Limitation of Liability
8.1 Total Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY AND AMOUNTS OWED TO THIRD PARTIES IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY ARISING OUT OF THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED THE AMOUNT CUSTOMER PAID TO LOOKBACK UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING A CLAIM FOR DAMAGES.
8.2 Exclusion of Damages. EXCEPT FOR BREACHES OF CONFIDENTIALITY AND AMOUNTS OWED TO THIRD PARTIES IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9. Term and Termination
9.1 Term. The Agreement will commence on the Effective Date and will remain in effect for a period of one (1) month thereafter (the “Initial Term”). Such Initial Term will automatically renew for additional, successive one (1) month periods (each, a “Renewal Term”) unless either party provides written notice to the other party of non-renewal at least thirty (30) days prior to the end of the Initial Term or any Renewal Term. The Initial Term and the Renewal Term(s) will collectively be referred hereto as the “Term.”
9.2 Annual Option. At any time following the Effective Date and prior to any effective non-renewal or termination of this Agreement, Lookback may, in its sole discretion, provide an opportunity for Customer to elect annual periods for this Agreement (“Annual Option”). In such event, and if Customer elects the Annual Option, then, notwithstanding Section 2.1 of this Addendum, the Agreement will continue to be effective until and including the date that is one (1) day prior to one (1) year following the date that Customer elects the Annual Option (“Annual Option Initial Term”). Notwithstanding Section 2.1 of this Addendum, such Annual Option Initial Term will automatically renew for additional, successive one (1) year periods (each, an “Annual Option Renewal Term”) unless either party provides written notice to the other party of non-renewal at least thirty (30) days prior to the end of the Annual Option Initial Term or any Annual Option Renewal Term. Notwithstanding Section 2.1 of this Addendum, in the event the Annual Option is made available to, and accepted by, Customer, the “Term” of the Agreement will be defined as the period beginning on the Effective Date and ending on the date Customer elects the Annual Option, the Annual Option Initial Term, and the Annual Option Renewal Term(s), collectively.
9.3 Termination for Breach. Each party will have the right to terminate this Agreement (or as to Lookback only, any Lookback Platform license) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following written notice thereof.
9.4 Effect of Termination. Termination of this Agreement terminates all Lookback Platform access and licenses granted hereunder and the Service Level Agreement. Upon termination of this Agreement, each party will promptly destroy or return to the other party all Confidential Information of the other party in its possession or control (except for copies maintained in accordance with such party’s archival backup procedures) and upon written request will provide the other party with a written certification, certifying to the destruction or return of all such Confidential Information. Any outstanding balance through the date of termination will immediately become due and payable in full.
9.5 Survival. The rights and obligations of the parties contained in Sections 1, 2.4, 2.5, 2.6, 4.2, 5, 6, 7, 8, 9.4, 9.5, and 10 will survive any termination or expiration of this Agreement.
10.1 Assignment. Neither party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent; provided, however, that either party has the right to assign or transfer this Agreement to a non-competitor of the other party, in its sole discretion, without the other party’s prior written consent, to a surviving entity in the case of a merger, acquisition, divestiture, corporate reorganization or sale of all or substantially all of its assets. A merger, change of control or other combination by operation of law will be deemed such an assignment. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
10.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of law known as conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County, California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
10.3 Nonexclusive Remedy. Except as expressly set forth in this Agreement and in the Service Level Agreements, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
10.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
10.5 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
10.6 Notices. Lookback may provide any notice to Customer under this Agreement by: (i) posting a notice on Lookback’s website and/or mobile application; or (ii) sending a message to the administrative email address(es) then associated with Customer’s Account. Notices Lookback provides by posting on Lookback’s website and/or mobile application will be effective upon posting, and notices Lookback provides by email will be effective when Lookback sends the email. It is Customer’s responsibility to keep its email address(es) current. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when Lookback sends the email, whether or not Customer actually receives the email. If Customer has any questions regarding this Agreement please contact Lookback via email at email@example.com.
10.7 Force Majeure. Neither party will be responsible or liable to the other party for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, internet outages, lockouts, war, terrorism, riot, or shortage of or inability to obtain energy, raw materials or supplies (each a “Force Majeure”). In the event of a Force Majeure, the party that is unable to perform or whose performance is delayed will promptly notify the other party of the Force Majeure and will use its commercially reasonable efforts to resume performance. If the affected party’s performance is delayed for a period of greater than thirty (30) days, the other party will have the option to terminate the Agreement upon written notice thereof to the affected party.
10.8 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
10.9 Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Lookback Services, Lookback Applications, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological weapons proliferation.
10.10 Publicity. Lookback has the right to use Customer’s name(s), trademarks and logos on Lookback’s website as well as in Lookback promotional and marketing materials, including press releases.
10.11 Entire Agreement. This Agreement, including the referenced Service Level Agreements, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Lookback may modify this Agreement at any time by posting a revised version on the Lookback website or by otherwise notifying Customer in accordance with Section 9.6. By continuing to use the Lookback Platform after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is Customer’s responsibility to check the Lookback website regularly for modifications to this Agreement. Lookback last modified this Agreement on the date listed above.
The parties have read, agree to, and have executed this Agreement as of the Effective Date.