THIS END USE LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE SERVICES (AS DEFINED BELOW) PROVIDED BY MILESTONE PLANNING & RESEARCH, INC. (“WE”, “US”, OR “OUR”) AND THE PARTY ACCESSING SUCH SERVICES (“YOU” OR “YOUR”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
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.
This Agreement was last updated on 21st November 2011. It 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.
"Licensed Services" means Services licensed by You or Your Affiliates under an Order Form.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for the purchase of Licensed Services 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 applications and platform provided by Us, www.projectrimms.com, and/or other designated websites as described in the User Guide, that are ordered under an Order Form, including associated offline components but excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
"User Guide" means the online user guide for the Services, accessible via www.projectrimms.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide.
"Users" means individuals who are authorized by You to use the Services, for whom licenses to a Service have been licensed, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
"We," "Us" or "Our" means Milestone Planning and Research, Inc. (the projectrimms.com company) described in Section 13.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Licensed Services.
2.1. 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.
2.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
2.3. 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.
2.4. Severability. If any provision of this Agreement is held by a court 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.
2.5. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2.
2.6. Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent. Any such attempt shall be deemed null and void.
[2.7 Lottery. The services provided by Us are not in the form of a lottery, and are in the form of skill based contest. The Services are offered in a subscription format and no charges are assessed for each skill based contest operated via the Services.>
2.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, 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 Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services. We shall make the Licensed Services available to You pursuant to this Agreement and the relevant Order Forms during a term. You agree that Your licenses 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.
3.2. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are provided as User licenses and may be accessed by no more than the specified number of Users, (ii) additional User licenses may be added during the licenses term at the same pricing as that for the pre-existing licenses, prorated for the remainder of the licenses term in effect at the time the additional User licenses are added, and (iii) the added User licenses shall terminate on the same date as the pre-existing licenses. User licenses are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4.1 Our Responsibilities. We shall: (i) provide to You basic support for the Licensed Services at no additional charge, and/or upgraded support if such services are selected for purchase by You separately, (ii) use commercially reasonable efforts to make the Licensed Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Licensed Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Central time Friday to 3:00 a.m. Central time Monday), 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 (iii) provide the Licensed Services only in accordance with applicable laws and government regulations.
4.2. Your Responsibilities. 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 the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent, license or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
5.1. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees. 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 licensed and/or support services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User licenses cannot be decreased during the relevant annual term. User annual license fees are based on twelve (12) monthly periods that begin on the start date and each monthly anniversary thereof; therefore, fees for User licenses added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the term.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial term and any renewal term(s) as set forth in Section 12.2. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. 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, and/or (b) We may condition future term renewals and Order Forms on payment terms shorter than those specified in Section 6.2.
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting or waiving 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.
6.5. Payment Disputes. For a period of 30 days after delivery of a notice of cancellation with Section 6.3 or 6.4, We shall not exercise Our rights under Section 6.3 or 6.4 if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.6. 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.
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights and source codes, content and materials related thereto, including but not limited to, patent, trademark, service mark, logo, trade secrets and copyright rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.4. 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.
[7.5. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.]
8.1. Definition of Confidential Information. As used herein, " Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law, otherwise set forth herein, or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.1. 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 (except for Malicious Code previously transmitted to the warranting party by the other party).
9.2. DISCLAIMER OF WARRANTIES. YOU ARE PURCHASING SERVICES AS IS AND WITH ALL FAULTS. INTERACTIVE MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY, TRUTH, AVAILABILITY OR COMPELTENESS OF THE SERVICES OR OF ANY CONTENT THEREOF. INTERACTIVE DOES NOT WARRANT OR GUARANTY: (A) THAT THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-, BUG-, OR VIRUS-FREE, OR THAT THEY WILL OPERATE SUCCESSFULLY WITH HARDWARE, SOFTWARE, SYSTEMS, OR DATA OTHER THAN THAT SUPPLIED OR RECOMMENDED BY INTERACTIVE; (B) THAT THE SERVICES WILL MEET YOUR PARTICULAR NEEDS, REQUIREMENTS, OR EXPECTATIONS, OR THAT ANY PRODUCTS, SERVICES, MATERIALS OR INFORMATION YOU MAY OBTAIN THROUGH THE SERVICES WILL MEET YOUR NEEDS OR EXPECTATIONS; (C) THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE; OR (D) THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED. ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR ANY PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
9.3. INTERNET DISRUPTION. YOU UNDERSTAND AND ASSUME THE RISK THAT DELAYS, DISRUPTION, AND OTHER EVENTS MAY OCCUR OVER THE INTERNET THAT CAUSE DELIVERY FAILURE OR OTHERWISE ADVERSELY AFFECT THE SERVICES. INTERACTIVE SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM ANY SUCH EVENTS.
9.4. LIMITATION OF LIABILITY. IN NO EVENT SHALL INTERACTIVE’S AGGREGATE LIABILITY TO YOU FOR ANY CLAIMS RELATIVE TO THE SERVICES OR YOUR LICENSE EXCEED THE AMOUNTS ACTUALLY PAID BY OR DUE FROM YOU IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIMS. IN NO EVENT SHALL INTERACTIVE BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR OTHER OR ADDITIONAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, BUSINESS, PROFITS, REPUTATION OR GOOD WILL, ARISING FROM OR RELATING TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, YOUR USE OF OR INABILITY TO USE THE SERVICES, ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, DELAY, INACCURACY, OR ERROR OR OMISSION IN CONTENT, REGARDLESS OF CAUSE, AND WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE SOUGHT WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
10. INDEMNIFICATION
10.1 We agree to defend, or settle at our option, any action against You arising from a claim that the Services( s) infringe any patent or property right, provided that (i) We are promptly notified of such action and are given control over the defense or settlement thereof, (ii) the Services(s) have not been modified by you, and (iii) the charge of infringement has not arisen from the use of the Service(s) in combination with other hardware or software components, where it is the combination which is charged to infringe. We shall at our option and expense secure for you the right to continue using the Services(s), or replace or modify the same so that it becomes non-infringing, or grant you a credit minus a reasonable depreciation for the use of the Service(s), but in no event shall such credit be greater than the amount paid therefor.
10.2. In no other
event shall We become liable to You, or any other party, for any loss or
damages, consequential or otherwise, including, but not limited to time, money
or goodwill arising from the use, operation or modification of the Services(s)
by You. YOU FURTHER AGREE TO INDEMNIFY, DEFEND, AND HOLD US HARMLESS, OUR AGENTS
OR EMPLOYEES FROM AND AGAINST ALL LOSS OR EXPENSE RESULTING FROM LIABILITY OF
ANY NATURE ARISING OUT OF OR RESULTING FROM THE USE, OR OPERATION OF THE
SERVICE(s).
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User licenses granted in accordance with this Agreement have expired or been terminated.
11.2. Term of Licensed Uses. User licenses commence on the start date that the Services have been made accessible to You by Us which shall be no later than 30 days after Our acceptance of Your Order Form, and shall continue for the term specified therein. Except as otherwise specified in the applicable Order Form, all User licenses shall automatically renew for additional periods equal to the expiring term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
11.3. 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.
11.4. 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 licenses 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 Order Forms 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.
11.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Licensed Services Order Form, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
11.6. Surviving Provisions. Section 6, 7, 8, 9, 10, 11.4, 11.5 and 12 shall survive any termination or expiration of this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. General. You are contracting with Milestone Planning and Research Inc. under this Agreement, and You should direct notices under this Agreement, to Milestone Planning and Research, Inc., 7667 W. 95th Street, Suite 104, Hickory Hills, IL 60457. The law governing this agreement is the law of the state of Illinois, and the sole jurisdiction and venue for any disputes arising from this Agreement shall be within Cook County, Illinois.
12.2. 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, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
12.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.5. Severable Terms. The invalidity, if any, of any term, condition or provision of this Agreement shall not affect the validity of any other term, condition or provision and those unaffected shall remain in full force and effect.
12.6. Modification. No modification, alteration or amendment of this Agreement or an Order Form shall be effective without the written consent of all parties hereto.