It is hereby agreed as follows:
1 Definitions and Interpretation
In this Agreement, including its Schedules, the following words shall, unless the context clearly requires otherwise, have the following meanings.
1.1 Agreement: means these End User Terms and Conditions, and all attachments, exhibits, appendices, and schedules hereto.
1.2 Agreement Initial Term: the Agreement Initial Term indicated on page 1 hereof, or if no Agreement Initial Term is indicated, then one (1) year.
1.3 Customer: the individual or legal entity who has agreed to these Terms and Conditions and to whom EveryCloud provides the Services.
1.4 Change of Control: shall be deemed to have occurred in respect of a Customer, solely where such Customer is a legal entity, if: (a) any entity having previously Controlled (as hereinafter defined) the Customer ceases to do so; (b) any entity acquires Control of Customer (whether by reason of acquisition, merger, reorganisation, operation of law, or otherwise); or (c) all, or substantially all, of the assets of Customer or an entity that Controls Customer are acquired (whether by reason of acquisition, merger, reorganisation, operation of law, or otherwise) by, or combined by merger with, any other entity. A Change of Control shall not include any assignment permitted under this Agreement pursuant to Clause 15.
1.5 Confidential Information: means all trade secrets, business, technical and financial information, computer software, machine and operator instructions, business methods, procedures, know-how, and other information, irrespective of the form of communication, that relates to the business or technology of either party that is identified as being confidential at the time of disclosure or disclosed under circumstances that would lead a reasonable person to believe such information is confidential including but not limited to technical or financial data, information, processes and trade secrets, and business activities, whether in written, oral, or other form, including but not limited to, methods of doing business, and names of customers or clients, of each party, which are treated or identified as confidential or proprietary by such party or the disclosure of which might reasonably be construed to be contrary to the interest of such party.
(B) Except as otherwise provided herein, each party agrees that all information communicated to it by the other, whether before or after the Effective Date, will be deemed to have been received in strict confidence, will be used only for purposes contemplated hereby, and each party will use the same means it uses to protect its own Confidential Information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality thereof. No such information shall be disclosed by the recipient party, its agents, representatives or employees without the prior written consent of the other party. The foregoing shall not prevent either party from disclosing information that: (i) becomes publicly available other than as a result of a disclosure by the recipient party or by its employees, agents, or other persons to whom the recipient party has disclosed such information; (ii) was available to the recipient party on a non-confidential basis prior to its disclosure to the recipient party by the other party provided that such prior disclosure and its non-confidential status are evidenced in writing; or (iii) becomes available to the recipient party on a non-confidential basis from a source other than the other party hereto, provided that such source is not bound by a confidentiality agreement with the other party hereto.
(C) The provisions of this Section 6 shall survive the termination or expiration of this Agreement for any reason whatsoever.
1.6 Control (and “Controls,” “Controlling,” “Controlled by,” and “under common Control with” shall be construed accordingly): means the possession, directly or indirectly, of the power to direct or cause the direction of the management and/or policies of that party, whether through the ownership of voting, securities, partnership or equity, by contract, or otherwise. Where any two parties together satisfy any of this definition, they shall be deemed to have Control. For purposes of this definition, there shall be attributed to any party rights and powers of a nominee for it (that is to say, any rights or powers that another party possesses on its behalf or may be required to exercise on its direction or behalf).
1.7 EveryCloud: means EveryCloud Technologies Limited; EveryCloud Antispam Limited or EveryCloud Technologies LLC.
1.8 EveryCloud Systems: means the EveryCloud customer relationship management functionality within the EveryCloud website or such other database as may be used from time to time, or the EveryCloud workspace, continuity or archiving functionality or the EveryCloud control panel which can be used for Customer management of Users of the Services.
1.9 Intellectual Property Rights: means all worldwide patents, patent applications, copyrights, trademarks, design rights, service marks, trade names, trade dress, trade secrets, know-how, moral rights, and any other intellectual property or proprietary rights.
1.10Normal Working Day: means Monday through Friday excluding public holidays.
1.11Normal Working Hours: means the hours between 9:00 a.m. and 6:00 p.m. of the time zone of the Customer during a Normal Working Day.
1.12Open Relay: means a situation whereby a Customer has failed to lock down their firewall to their IT system which then could or does become the subject of a network attack to the Customer which could or does result in the Customer system sending Spam, viruses or malware.
1.13Service(s): means those Services described in the Schedules hereto.
1.14Spam: means unsolicited commercial email.
1.15Term: shall have the meaning ascribed to it in Clause 8.1.
1.16User: means a person, mailbox or machine that uses the Service.
2 Grant of Licence and Use of Services
2.1 Subject to this Agreement, EveryCloud hereby grants to the Customer a non-exclusive, non-transferable, limited, revocable, non-sublicensable right to use the Services for the number of Users specified in the set up process of the Customer’s domain which may be reviewed in the EveryCloud Systems from time to time.
2.2 The provision of the Services shall be subject to EveryCloud’s then current service level agreement (“SLA”) the most recent version of which is available to view or download at www.everycloudtech.com/SLA The Customer’s sole a exclusive remedy for any interruptions or deficiencies in the Service shall be as set out in the SLA. EveryCloud reserves the right to amend the SLA effective upon publication via the EveryCloud website or such other notice to Customer as may be determined by EveryCloud from time to time. The Customer shall not be entitled to any SLA remedy for Service interruptions pursuant to Clauses 2.3, 2.4, 2.5, and/or 10.4
2.3 EveryCloud reserves the right, both prior to the provisioning of the Service and at any time during the supply of the Service, to test whether the Customer's email systems allow Open Relay. If at any time the Customer's email systems are found to allow Open Relay, EveryCloud reserves the right to withhold or suspend all or any part of the Services immediately and until the situation has been resolved to EveryCloud’s satisfaction. EveryCloud shall notify the Customer as soon as reasonably practicable of the existence of the Open Relay on the Customer system. Such notification may be before or after suspension or withholding of the Service has occurred.
2.4 If at any time EveryCloud determines that the Customer's email systems are being used for sending Spam, EveryCloud reserves the right to withhold or suspend all or part of the Services immediately and until such misuse has ceased. EveryCloud shall notify the Customer as soon as reasonably practicable of the Customer’s suspension.
2.5 In the event that the Customer fails to protect their network effectively from, without limitation hacking attempts, denial of service attacks, mail bombs which results in multiple occurrences of Spam sending, EveryCloud reserves the right to suspend or terminate the SMTP relay. This will not affect inbound Spam filtering, however, the Customer will no longer be able to send emails via the Services for the duration of this Agreement.
2.6 Subject to applicable law, EveryCoud may provide the Service from any hardware installation anywhere in the world and may, at any time, transfer the provision of the Service from one installation to another. EveryCloud does not guarantee that any such installation, or any part thereof, is or will be dedicated to the sole use of the Customer.
2.7 EveryCloud may add, delete, or change the Service, including without limitation modifying specifications relating thereto, on reasonable notice to Customer. EveryCloud may substitute products or services of later design to fulfil an order, provided the changes, modifications, or substitutions under normal and proper use do not adversely impact on form, fit, or function.
2.8 Should the Service be suspended or terminated for any reason whatsoever, EveryCloud reserves the right to reverse all configuration changes made upon provisioning the Service. In such event, the Customer acknowledges and agrees that it shall be responsible to undertake, at its sole cost and expense, all other necessary configuration changes to its email servers and to inform its Internet Service Provider (“ISP”) of the need to reroute inbound email.
2.9 Subject to applicable law, EveryCloud may monitor Customer’s use of the Service (and disclose or otherwise use information obtained in so doing) only to:
2.9.1 comply with applicable law, regulation, or other governmental request or order;
2.9.2 determine whether Customer’s use of the Service violates applicable law;
2.9.3 protect the integrity of the public Internet, the Service, and/or EveryCloud and/or networks; or
2.9.4 take other actions agreed upon or requested by Customer.
2.10The Customer shall notify us at the commencement of this Agreement of the amount of Users it wishes to add to the Services. As the EveryCloud System automatically creates User accounts, EveryCloud reserves the right to periodically check the amount of Users within the EveryCloud System against the amount of paid Users of the Customer and invoice the Customer according to such User numbers.
2.11The Customer acknowledges and agrees that the service will be provisioned in accordance with EveryCloud’s default settings applied from the outset as detailed in the relevant service descriptions contained within the SLA and that it is the Customer’s sole responsibility to configure the Service to its own requirements.
3 Customer's Obligations
3.1 The Customer will provide EveryCloud with all technical data and all other information that EveryCloud may reasonably request from time to time to enable EveryCloud to supply the Service to the Customer. The Customer will ensure that all information supplied by it shall be complete, accurate, and given in good faith, and such information will be treated as Confidential Information under the terms of this Agreement.
3.2 Customer shall maintain the confidentiality of any User ID and/or password that affects:
3.2.1 Customer’s access to or use of the Service;
3.2.2 any computer system or network used in connection with the Service; or
3.2.3 any software, application, or service used in connection with the Service.
All such User IDs and passwords shall be considered “Confidential Information” hereunder.
3.3 The Customer agrees that information sent to and from the Customer will pass through the Service and accordingly the Customer agrees to ensure to use the Service for legitimate and lawful business purposes only.
3.4 The Customer shall be solely responsible for any data or systems failure or corruption, or any other loss or damage, caused by or arising from:
3.4.1 the release by the Customer or the Customer’s employee’s, agent’s, or contractor’s of any malware-infected files, links or phishing, content blocked, stopped, or such other files, links or content which would otherwise have been prevented by the Services (collectively “Malware”); and/or
3.4.2 the onward distribution of such Malware via the Customer or Customer’s Users’ email addresses or network system.
4 Ordering and Payment
4.1 Upon the Customer being set up within the EveryCloud System, the Customer commences a 30 day free trial of the Services. Upon the completion of the 30 day free trial, EveryCloud will:
4.2 Where Customer has chosen to be invoiced for the service, EveryCloud will issue an invoice to the Customer for the amount of Users specified by the Customer during the set up process for the relevant Services. The Customer may cease to use the Services at any time during the 30 day free trial without charge.
4.3 Customer shall pay to EveryCloud, the amount of the charges specified on the invoice, within 7 days of the date of the invoice. All charges are exclusive of VAT which will be itemized on the invoice. In the event that Customer fails to make any payment when due, EveryCloud reserves the right to suspend Services immediately and delete and remove any emails contained within the EveryCloud Systems.
4.4 When Customer makes full payment by credit, debit card or Paypal the customer trial will immediately be converted to full service for the period purchased and accessible using the same login details. Full payment is required for the period purchased.
4.5 EveryCloud reserves the right to charge interest in respect of any overdue amounts whether before or after any judgment at a rate of one and one-half percent (1 1/2%) per month, or the maximum percentage permitted by law. The Customer shall pay EveryCloud's costs of collection of such overdue amounts including, but not limited to, legal fees.
4.6 Refund requests submitted within 30 days of the purchase date and for less than $5,000.00 (USD) will receive a refund. Refunds are not eligible for requests of $5,000 (USD) or more, or for requests submitted after 30 days from the purchase date.
5 Email Archiving
5.1 Where the Customer orders EveryCloud Email Archiving, the Customer can ingress email data into the EveryCloud archive. The charge for a data import conducted electronically is a per GigaByte (GB) charge of £4.70 for UK based customers or US$7.25 (US Dollars) for all non UK based customers. Alternatively the Customer can ingress data using a hard drive shipment. The cost of this option is a one off fee of £200 per upload for UK based customers or US$300 (US Dollars) for all non UK based customers plus a per GB charge of £4.70 for UK based customers or US$7.25 (US Dollars) for all non UK based customers including shipping and tracking services.
5.2 In the event that the Customer has chosen EveryCloud’s Email Archiving as part of the Services, and this Agreement is terminated or expires, the Customer may either:
5.2.1 Request data via an electronic download. The EveryCloud Email Archiving service will allow a bulk-data download to the Customer's own storage via a standard Internet connection. Bulk data download must be completed within the first thirty days of the termination or expiry of this Agreement, otherwise a data hold fee will be charged for each month beyond contract termination at the rate of £4.70 per GB per month for UK based customers or US$7.25 (US Dollars) per GB per month for all non UK based customers. Bulk data download fee is £4.70 per GB for UK based customers or US$7.25 (US Dollars) per GB for all non UK based customers. After the data is extracted all Customer data is deleted from the EveryCloud System; or
5.2.2 Request data hard drive shipment. The EveryCloud Email Archiving service will bulk store Customer data to a hard disk drive and ship the hard drive to the Customer address as notified to EveryCloud by the Customer. The fee will be a one off charge of £200 plus £4.70 per GB for UK based customers or a one off charge of US$300 (US Dollars) plus US$7.25 per GB including shipping and tracking services. After the data is extracted all Customer data is deleted from the EveryCloud System; or
5.2.3 Request data destruction. Upon the written request of a representative of the Customer, the EveryCloud Email Archiving service will electronically shred all Customer data from all storage locations. Electronically shredding includes deleting all data, removing all records from meta data databases, full-text index files and destroying the encryption key to ensure no data will ever be recoverable. Should the Customer maintain that a request for data destruction was not given by an authorized Customer representative or was not requested at all, EveryCloud shall have no liability to the Customer where it can demonstrate that it has received a written request (which may be via email) from an email address or on headed paper of the Customer made by or purported to be made by any of its representatives (including employees, agents, contractors or other third parties associated with the Customer) requesting data destruction.
6 Conditions of Sale
6.1 This Agreement shall form the contract between the Customer and EveryCloud in relation to the provision of the Services. In the event of any terms and conditions appearing on a Customer’s order form such terms and conditions are expressly excluded and of no legal effect and shall not be deemed accepted by EveryCloud.
7 Limitation Of Liability
7.1 EveryCloud does not limit its liability (if any) in respect to the following:
7.1.2 the death of, or personal injury to, any person caused by its negligence or that of its employees.
7.2 Notwithstanding Clause 7.1 and subject to clause 7.3, EveryCloud’s total aggregate liability per event or series of connected events, under or in relation to this Agreement (and whether such liability arises due to breach of contract, negligence or for any other reason) shall be limited to the lower of:
7.2.1 the total amount payable by the Customer to EveryCloud during the first six (6) months of the Service; or
7.2.2 £10,000 (ten thousand pounds sterling).
7.3 Notwithstanding clause 7.1, EveryCloud does not accept any liability to the Customer under or in relation to this Agreement or its subject matter (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason), for any loss of profits, loss of sales or turnover, loss of or damage to reputation, loss of contracts, loss of customers, loss of any software or data, losses or liabilities under or in relation to any other contract, indirect loss or damage, consequential loss or damage, loss(es) directly or indirectly due to network access by third parties; or special loss or damage. For the purposes of this Clause 7.3 the term "loss" includes a partial loss or reduction in value as well as a complete or total loss.
8 Term & Termination
8.1 Upon the expiry of the Initial Term, this Agreement will automatically renew for additional one (1) year terms (each, a “Renewal Term”) unless a party gives the other party written notice of non-renewal at least 30 days before commencement of the next Renewal Term. The “Initial Term” and all “Renewal Terms” constitute the “Term” of this Agreement.
8.2 Without prejudice to any other rights to which it may be entitled, either party may terminate this Agreement with immediate effect upon written notice to the other party:
8.2.1 if the other party commits any material breach of any of the terms herein and (if such a breach is remediable) fails to remedy that breach within fifteen (15) days of that party being notified thereof; or
8.2.2 if (i) an order is made or a resolution is passed for the winding up of the other party; (ii) an order is made for the appointment of an administrator to manage the affairs, business, and property of the other party; (iii) a receiver, administrator, or administrative receiver is appointed of any of the other party's assets or undertaking; (iv) circumstances arise which entitle a court with proper jurisdiction or a creditor to appoint a receiver or manager or which entitle a court with proper jurisdiction to make a winding-up order; or (v) if the other party takes or suffers any similar or analogous action in consequence of debt.
8.3 EveryCloud may, without prejudice to any other rights to which it may be entitled, terminate this Agreement:
8.3.1 without cause upon thirty (30) days written notice to Customer;
8.3.2 upon written notice to Customer if Customer fails to pay any amount due and payable to EVERYCLOUD or Customer and fails to remedy such breach within ten (10) days of being notified thereof; or
8.3.3 upon written notice to customer if there is a Change of Control of Customer.
8.4 EveryCloud may, without prejudice to any other rights to which it may be entitled, suspend the provision of the Service to the Customer with immediate effect if:
8.4.1 the Customer is in material breach of any obligation in this Agreement;
8.4.2 the Customer allows its systems to be used for Open Relay; or
8.4.3 the Customer fails to comply with any of its obligations under Clauses 2 or 3 of this Agreement.
9 Effects of Termination
9.1 Termination or expiry of this Agreement shall be without prejudice to any rights, remedies or liabilities accrued as of the effective date of termination.
9.2 Upon termination:
9.2.1 EveryCloud shall cease to provide the Services to the Customer;
9.2.2 any amounts owed to EveryCloud under this Agreement whether arising and falling due before or after such termination will immediately become due and payable: and
9.2.3 subject to Clause 9.3, Customer’s rights to use the Services will immediately terminate.
9.3 The following Clauses shall survive termination: 1, 4, 7, 11 & 12 through 22.
10.1Each party (“Recipient”) acknowledges that during the performance of this Agreement, it may have access to the other party’s (“Discloser”) Confidential Information. The Recipient agrees that such Confidential Information is proprietary to the Discloser and will remain the sole property of the Discloser.
10.2The Recipient agrees as follows: (i) to use the Confidential Information only for the purposes described in this Agreement; (ii) to hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party, taking precautions at least as protective as those the Recipient employs with respect to its most confidential materials, but in no case less than reasonable precautions; (iii) restrict access to the Confidential Information to its employees and contractors who have a need to have access to the Confidential Information and who are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement; (iv) immediately notify the Discloser upon discovery of any loss or unauthorised disclosure of the Discloser’s Confidential Information; and (v) to return or destroy all Confidential Information upon termination of this Agreement.
10.3The foregoing provisions will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the Recipient; (iii) is rightfully communicated to the Recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the Recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the Recipient without access to the Confidential Information; or (vi) is approved for release or disclosure by the Discloser in writing without restriction. Notwithstanding the foregoing, the Recipient will be allowed to disclose Confidential Information of the Discloser to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body; provided that, the Recipient notifies the Discloser of such required disclosure promptly in writing and cooperates with the Discloser, at the disclosing party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
10.4EveryCloud recognises and confirms that the content of all mails sent to or received from the Customer by the Service is confidential. Unless requested to do so by the Customer, in the normal provision of the Service EveryCloud will not access, read or copy emails or their attachments other than by electronic methods for the purposes of providing the Service. However, EveryCloud reserves the right to utilise the Virus-related content of such email or its attachments solely to:
10.4.1 maintain and improve the performance and the integrity of the Service;
10.4.2 comply with all regulatory, legislative or contractual requirements; and
10.4.3 make available to Service subscribers any information passing through the Service which may be of interest to them, solely for the purpose of further developing and enhancing the Service, provided that information provided by EveryCloud does not include any Customer-identifiable information.
11 Force Majeure
11.1Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of amounts due) to the extent resulting from causes beyond the reasonable control of such party, including without limitation, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, terror, war, labour conditions, earthquakes, compliance with any law or governmental order, rule, regulation or direction, accident, loss of electrical power, loss of telephone/internet/wide area network and similar infrastructure, and material shortages (each a “Force Majeure Event”).
11.2In the event of either party being so hindered or prevented, the party concerned shall give notice of suspension as soon as reasonably possible to the other party stating the date, extent, and cause of the suspension. Failure to give such notice shall forfeit the rights of that party to claim suspension. Any party whose obligations have been suspended as aforesaid shall resume the performance of those obligations as soon as reasonably possible after the removal of the Force Majeure Event and shall so notify the other party. In the event that the Force Majeure Event continues for more than thirty (30) days after written notification as aforesaid either party may terminate this Agreement immediately upon written notice.
12 No Third Party Beneficiaries
This Agreement shall be for the benefit of the Customer and EveryCloud. No third party who is not a signatory or party to this Agreement shall have any right to enforce any of the terms of this Agreement.
13 Data Privacy and Regulation of Investigatory Powers
13.1Customer acknowledges that information processed by EveryCloud shall be solely for the purposes of providing the Services and EveryCloud shall act as a Data Processor (as such term is defined in the Data Protection Act 1998 (as may be amended, updated or replaced from time to time)). In the course of providing the Services the Customer agrees that the Customer emails may contain personally identifiable information of individuals and associated metadata and that the processing of such information may therefore involve the processing of personal data. With respect to any and all data, including, but not limited to, third party data, personally identifiable information and associated metadata obtained by EveryCloud or its suppliers pursuant to Customer’s use of the Services (collectively, the “Data”). Customer shall be the Data Controller (as such term is defined in the Data Protection Act 1998 (as may be amended, updated or replaced from time to time)) of such Data and shall take all necessary measures to ensure that it, and all its employees, are aware of any responsibilities they have in respect of applicable privacy laws and/or regulations and have sought the necessary consents to permit the processing of the Data by EveryCloud. Customer understands and agrees that EveryCloud or its suppliers have no control or influence over the content of the Data processed by EveryCloud or its suppliers and that EveryCloud and its suppliers perform the Services on behalf of the Customer.
This Agreement may be amended only by a written document signed by both parties, save that EveryCloud shall be entitled to amend the SLA document and the Services schedule upon no less than 10 Normal Working Days notice to the Customer and such variations shall become automatically effective upon the expiry of such 10 Normal Working Days notice without the need for signature of the Customer.
The Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without EveryCloud’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Without limiting EveryClouds’s right to assign or transfer any of its rights or obligations hereunder, EveryCloud will have the right to assign, without notice or consent of the Customer, this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganisation, or otherwise.
All waivers must be in writing. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right, nor shall such failure operate to bar the exercise or enforcement of such right at any time or times thereafter.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by email of scanned original signed document, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address, in respect of the Customer to which the last invoice was sent and in respect of EveryCloud, its registered office address in the United Kingdom as set out on the EveryCloud website, and will be effective upon the earlier to occur of receipt or three (3) business days after being deposited in the mail as required above. Either party may change its address by giving written notice of the new address to the other party.
19 Governing Law and Jurisdiction
This Agreement will be governed by the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English courts, without regard to any of its conflict of laws provisions that would cause the laws of another jurisdiction to apply (provided, however, that nothing in this Agreement will prevent EveryCloud from seeking injunctive relief to enforce the terms of this Agreement in any venue or jurisdiction, as determined in EveryCloud’s sole convenience). The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its costs, expenses, and reasonable attorneys’ fees, in addition to any other relief it may receive.
20 Interpretation; Entire Agreement
This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. Execution of this Agreement will be completed via the acceptance by the Customer of this Agreement electronically on the EveryCloud website. EveryCloud shall be entitled to rely upon the fact that the person who accepts this Agreement on behalf of the Customer has capacity and authority to enter such Agreement and the Customer warrants this to be the case.