These are the terms of service ("Terms") regarding the services offered by Fortumo. Please read the Terms, because they describe the agreement between you or your company ("Merchant") and Fortumo OÜ (private limited company), registry code 11378397, registered address Rüütli 7, 51007 Tartu, Estonia, e-mail: firstname.lastname@example.org ("Fortumo"). The Merchant and Fortumo also referred to as “Party” or “Parties”.
ABOUT THE TERMS
- Authority. Each Party represents and warrants to the other that: (1) it has the full right and legal power to enter into, deliver and fully perform under the Agreement, (2) neither the execution nor performance of the Agreement will result in a violation of any agreement, order, judgment, decree, rule, regulation or law to which it is bound, and (3) its principal place of business or residence is not in a jurisdiction against which the United States of America has established sanctions or embargoes.
- Modification. Fortumo may amend the Terms upon occurrence of the following events: (1) changes in applicable law or taxation; changes in the interpretation of courts, competent authorities or Payment Providers regarding the subject matter of the Terms; (2) a judicial or administrative act obliging Fortumo to make changes to the Terms; (3) changes in the business model of Fortumo; (4) significant changes in other circumstances that reasonably require to be reflected in the Terms.
- Accepting Modifications. The amended Terms shall be communicated to the Merchant at least thirty (30) days (reference to days in the Terms shall be deemed to be a reference to calendar days) before the amended Terms come into effect. The amended Terms will automatically become binding to the Merchant upon the expiration of the thirty (30) days notification period. If the Merchant does not agree with the amended Terms, the Merchant may terminate the Agreement at any time with immediate effect.
- “End-User” means a client of a Payment Provider, who uses or purchases the Merchant Service.
- “Merchant Service” means the service, product, application, website, appstore, game, content, software, license, feature or functionality, or similar, whether paid or free, whether owned by the Merchant or third parties (sub-merchants), where the Merchant accepts or mediates payments from End-Users using the Services of Fortumo.
- “Payment Provider” means mobile operators, payment aggregators, payment gateways, electronic money or electronic wallet service providers or other payment providers, which provide the services of charging the purchase amount for the Merchant Services to the End-User’s mobile phone account or provide other payment services.
- “Products” means Website, Services and Technology.
- “Services” means the technical services, platform and solution which Fortumo provides for Payment Providers and Merchants, detailed in clause 2.1., which support and simplify the provision of payment services by Payment Providers to End-Users for purchases of the Merchant Services.
- “Technology” means the software, applications, SDK, APIs, system files, databases and other parts and elements of Fortumo’s information systems and infrastructure, which enable the provision of the Services.
- “Website” means the website fortumo.com.
- Fortumo Services. Fortumo has integrations allowing access to the systems of various Payment Providers globally. By integrating with Fortumo and using the Fortumo Services, Merchants will be able to charge End-Users of these Payment Providers for the Merchant Services. The Fortumo Services include: 1) processing, analyzing and storing payment and End-User data; authenticating data and End-Users; providing information technology services; creating, providing and maintaining systems, connections, integrations and infrastructures with Payment Providers and Merchants necessary for processing payments ; 2) provision of real-time transaction reporting available to the Merchant on the Website and 3) payment of the Merchant’s share to the Merchant. The Services are available for various operating systems and on the web. The Services support in-app purchasing solutions, one-off payments and recurring (subscription) payments.
- Remuneration for Services. The Merchant does not have to pay any fixed or regular fees to Fortumo. Fortumo retains a fee (which shall be Fortumo's earnings under this Agreement) for each successful payment by an End-User for the Merchant Services.
FORTUMO'S PROPRIETARY RIGHTS
- General License. The Products and any parts thereof are solely owned by Fortumo and its affiliates. Fortumo grants to the Merchant a limited, worldwide, royalty-free, non-assignable, non-transferrable and non-exclusive license to use the Products in compliance with the Agreement and applicable laws.
- Trademarks. The Parties may not use or modify any of the other Party’s trade names, trademarks, service marks, logos, indicia, designs, domain names, corporate names or other trade dress elements and distinctive brand features, whether registered or not. Regardless of the aforementioned, either Party may make references to the trade names, trademarks, logos and other trade dress of the other Party only for identifying the other Party as its customer or service provider in presentations, marketing materials and customer lists.
- Reservation of Proprietary Rights. All legal right, title and interest in and to the Products and Merchant Services, including any proprietary rights and intellectual property rights, remain with Fortumo and the Merchant, respectively, unless otherwise stipulated in the Agreement. Unless expressly otherwise stated in the Agreement, nothing in the Agreement shall amount to an assignment, license or transfer of any right, title to or interest in any intellectual property rights owned by either Party, or rights in any materials or services provided hereunder. If the Merchant retrieves data from Fortumo, the Merchant acknowledges that the data is protected by proprietary rights, which are owned by Fortumo or third parties.
- Fortumo SDK License. The Fortumo SDK (software development kit) is licensed under the following terms: (1) Fortumo grants to the Merchant a limited, worldwide, royalty-free, non-assignable, non-transferrable and non-exclusive license to use the Fortumo SDK solely to integrate the Merchant’s technology with Fortumo’s technology in order to use the Products in compliance with the Agreement. For these purposes, the Merchant may install, configure, customise, integrate, test and localise the Fortumo SDK only insofar as it is necessary to achieve full integration and in compliance with the Terms. The Merchant may also make a copy of the Fortumo SDK for backup purposes. Use of Fortumo SDK for any purpose other than those mentioned in item (1) above without Fortumo’s prior express consent is prohibited.
- Merchant Services. The Merchant is solely responsible for any and all Merchant Services (regardless of who actually owns or controls the Merchant Services), and for the Merchant Services’ (and their advertisements’) compliance with the Agreement, requirements published on the Website, applicable laws and regulations, Payment Provider regulations, consumer protection and industry standards. The Merchant Services may not include or support (1) any sexual or sexually related content, (2) any gambling or lottery services, (3) any other content that infringes the laws, regulations or industry standards. Fortumo will decide on a case-by-case basis whether it will provide its Services for any specific Merchant Service, and reserves the right, on reasonable grounds, to remove its Services from any Merchant Service or to give instructions regarding the compliance of the Merchant Service.
- General License. The Merchant grants to Fortumo and Payment Providers a non-exclusive license for the necessary intellectual property rights regarding the Merchant Services only insofar as is directly and unavoidably necessary to fulfil the respective obligations of Fortumo and Payment Providers in accordance with this Agreement, to enable charging of End-Users for the Merchant Services with Payment Providers and to fulfil tasks directly related to the aforementioned.
- Warranty. The Merchant represents and warrants that: (1) the Merchant Services are not harmful (i.e. do not include viruses, worms and other harmful or destructive codes), misleading, infringing any third party (intellectual property) rights, abusive, harassing, defamatory, pornographic, obscene, invasive of privacy, discriminating or otherwise illegal or in contradiction with industry standards, the laws and regulations, or the Agreement; (2) the Merchant Services are technically and substantially of high quality and the Merchant shall provide adequate and fast End-User support for the Merchant Services; (3) the Merchant either owns the Merchant Services or has the necessary licenses, rights and permissions to use, sell, license or otherwise make the Merchant Services available to End-Users, and to grant the license stipulated in Clause 4.2.
- Approval Process. The Merchant may be required to obtain an approval or registration for the Merchant Service from Fortumo, Payment Providers or competent authorities, before launching the Merchant Service. This approval does not indicate that the Merchant Service will be legitimate in any jurisdictions, rather it is to ascertain that the Merchant Service is in line with the basic requirements. Fortumo is not obligated to pre-screen or monitor any Merchant Service in order to discover any infringements therein. Fortumo explicitly disclaims any responsibility for any Merchant Service. Payment Providers have the right to choose which Merchant Services they will provide payment services for and may discontinue payment services at their sole discretion.
- Clarity. The Merchant shall ensure that the total End-User price and all amounts that are charged from End-Users are shown clearly and unambiguously to End-Users. The functioning of the Merchant Services (esp. regarding payment by End-Users) and provision of information to End-Users shall be in compliance with the Agreement, industry standards, and any applicable laws and regulations.
- Advertisements and Third Party Content. Advertisements, marketing and promotions (regardless of who carries these out) of the Merchant Service shall be deemed to be a part of the Merchant Service and must be in compliance with the requirements for Merchant Service set out in this Agreement. Merchant shall provide the marketing materials to Fortumo within 2 business days as of the request. If the Merchant Service allows third parties to upload content or modify parts of the Merchant Service, the Merchant shall remain liable for such actions of third parties and the resulting content and Merchant Service.
- Protection of End-User’s Data. Fortumo and the Merchant shall protect the privacy and personal data of End-Users in accordance with the highest globally recognized personal data protection standards, as a minimum the standards applied in the European Union. If the Merchant retrieves or receives an End-User’s data from Fortumo or Payment Providers, the Merchant shall retrieve or receive such data, and use such data, only for purposes of fulfilling this Agreement or a request by, or agreement with, the relevant End-User and the Merchant shall not license, sell, rent, distribute, disclose or otherwise grant access to such data. Fortumo has no responsibility to investigate the background or confirm the identity of End-Users who use the Merchant Services.
- Merchant Account. In order to use the Services, Merchants are required to open an account with Fortumo (“Merchant Account”), which may include the name, email address, location, phone number and bank account details of the Merchant. The Merchant is responsible for providing and maintaining accurate information in the Merchant Account. The Merchant’s name must be reasonably descriptive, because this name may appear on the End-User’s bill for payments for Merchant Services. Fortumo may, upon request by a Payment Provider, End-User, competent authority or third party with a justified interest, disclose to the aforementioned persons data that is necessary to identify and contact the Merchant.
- Authorised Users. If several persons need to use the Merchant Account, such persons must be designated as authorised users and shall have the right to act on the Merchant’s behalf when using the Merchant Account. The Merchant shall be responsible for maintaining the confidentiality of any credentials of the Merchant Account. Each separate user of the Merchant Account must use separate credentials. The Merchant shall be solely responsible for all activities and actions that occur under the Merchant Account or otherwise on the Merchant’s behalf. The Merchant shall promptly notify Fortumo: (1) if the Merchant becomes aware of any disclosure, loss or unauthorised use of the credentials; (2) if a user does not have the right to use the Merchant Account anymore.
- Merchant's Share. The payment terms and conditions, including the Merchant’s share per country and per Payment Provider, and the indicative month when it is paid out (shown as the number of months between the end of the End-User transaction month and the payment to Merchant month), are specified on the Website and the Merchant Account. As the applicable taxes, payment terms offered by Payment Providers or other circumstances affecting the payment terms and conditions may change, the payment terms and conditions may be amended by Fortumo with prior notice to the Merchant. The total Merchant’s share to be transferred to the Merchant for the Merchant Services is based on the Merchant’s share in the End-User price (less VAT and other taxes) and the number of successfully collected End-User payments for the Merchant Services. The Merchant’s share is the only remuneration paid by Fortumo to Merchant under this Agreement.
- Payment and Reporting. All payments to the Merchant shall be made in Euros or upon Fortumo’s agreement in US Dollars or other currencies. The Merchant’s share shall be calculated based on records maintained by Payment Providers and Fortumo, and shall be reported and paid to the Merchant on the 15th day of each month following the month of receipt of the amounts from Payment Providers. Currencies will be converted using rates at xe.com on the first banking day of the month when the payment to the Merchant is made, adding a margin applied by commercial banks. The Merchant’s share shall be paid out by Fortumo, if the aggregate unpaid share converted to Euros is at least €100 (one hundred Euros). Fortumo shall deduct from any payment to the Merchant the costs of bank transfer.
- Reset of Earnings Balance. For accounting purposes, Fortumo may reset the balance of the Merchant's share to zero when the Merchant Services have not been used during the previous six (6) months and the balance of unpaid Merchant’s share is below €100.
- Payment Dependencies. Fortumo receives the relevant amounts for the Merchant Services from different Payment Providers at different times. Regardless of anything to the contrary herein, Fortumo is not obligated to make any payments to the Merchant, if Fortumo has not received the corresponding payment from the Payment Providers and Fortumo is not obligated to pay to the Merchant more than it has received from the Payment Providers for the respective Merchant Services. If Fortumo receives a partial or reduced payment from the Payment Providers, the Merchant’s share shall be reduced accordingly. In the event Fortumo makes any payment to the Merchant before receiving full payment from the Payment Provider, Fortumo reserves the right to reclaim or deduct the payment from the Merchant in the event the Payment Provider does not transfer said full payment to Fortumo in due time. Payment Providers disclaim their payment liability for transactions that they have failed to collect from, or have refunded to, the End-Users, and Fortumo has no payment obligations towards the Merchant in this case.
- Refunds. Refunds granted to End-Users for purchases of the Merchant Services (and a processing fee imposed by Payment Providers and/or money transfer fees, if applicable) shall be compensated by the Merchant and may be deducted from payments to the Merchant.
- Set Off. Fortumo may set off any payment obligation that Fortumo may have to the Merchant against any payment obligation that the Merchant may have to Fortumo, for example (1) any losses, damages, taxes or expenses which the Merchant shall compensate under the Agreement, (2) amounts overpaid to the Merchant due to a reversal, refund, chargeback, uncollected amount or other adjustment or (3) the Fortumo fee and any other amounts owed by the Merchant to Fortumo.
- Taxes. Each Party shall be liable for their own tax obligations. In case it is required by law or competent authority, Fortumo and/or the Payment Provider have the right to pay and/or withhold applicable taxes and charges (e.g. VAT and withholding tax) from the payments to the Merchant, providing the Merchant with the necessary evidence upon request.
- Disputing Payments. If the Merchant wishes to dispute any payment from Fortumo, this shall be done within thirty (30) days as of the date of receipt of such payment. Failure to do so during the aforementioned limitation period shall result in the Merchant having accepted the correctness of the payment. In the event of disputes regarding payments, the Party disputing the payments shall (a) provide details regarding the dispute and the reasons thereof; and (b) furnish the other Party with relevant proof in support of its dispute. Both Parties shall jointly determine the cause of any deviation to facilitate Fortumo to seek clarification from the Payment Providers and the data of the Payment Providers shall be conclusive evidence.
- Declined Payments. The decision to charge the End-User is at the sole discretion of the Payment Provider. The End-User’s payment may be declined by Payment Providers for several reasons, e.g. the End-User could not be identified or verified, exceeded limits, insufficient funds on the End-User’s account, the End-User’s agreement has expired, Payment Provider system disruptions etc. Fortumo is not responsible for any declined or failed payments.
- Illegal Actions. The Merchant may not use the Products or Merchant Services for committing a crime, money laundering or financing terrorism, conducting any other breach of applicable law or for calling up for others to carry out such illegal acts. The Merchant shall lose the right to the Merchant’s share generated by a Merchant Service, which violates the above, or violates the Agreement, or violates the rights of third parties or applicable laws or regulations.
- Suspension. Regardless of anything to the contrary herein, Fortumo reserves the right to suspend the Merchant’s use of the Products, withhold payments and reverse previous payments to the Merchant upon the occurrence of any of the following situations: (1) any suspected breach of the Agreement by the Merchant or suspected fraud or violation regarding End-User transactions or Merchant Services; (2) for the duration of Fortumo's investigation of the suspected breach, fraud or violation; or (3) a Payment Provider or competent authority requests from or applies to Fortumo a suspension of services, withholding or reversal of payments.
- Requirement of Prior Consent. The Merchant shall not, without Fortumo’s prior express consent: (1) sell, lease, license, distribute, provide, disclose, divulge, exploit or otherwise grant access to or make the Products available in whole or in part to any third parties; (2) create interfaces between the Products or any part or element thereof from one side and any third party systems from the other side, unless the Merchant creates such interface for its own systems in compliance with the Agreement; (3) copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile, rent, lease, loan, sell or distribute the Fortumo SDK, Products or any part or element thereof nor attempt to extract the source code thereof, nor use individual parts or elements of the Products separately of the whole, including reproducing and distributing them on separate data media, combining them with other software, including them in third party databases etc., unless it is expressly allowed under the Agreement.
- Change of Services. Fortumo may, giving prior notice thereof: (1) limit, update or cancel some or all of the functionality of the Products; (2) change the form and nature of the Products; or (3) stop providing Products (or any features therein) to the Merchant or to merchants generally.
- Confidentiality. Each Party acknowledges that it will have access to material, documents, data, systems and other information concerning the operation, business, financial affairs, products, customers, forecasts, plans, calculations, agreements etc. of the other Party that may not be accessible or known to the general public, including, but not limited to the terms of the Agreement or disputes between the Parties related to the Agreement, court or arbitration proceedings and all thereto related materials and information (“Confidential Information”). The Parties agree that Confidential Information shall remain the sole and exclusive property of the disclosing Party (“Disclosing Party”), and the receiving Party (“Receiving Party”) agrees to maintain (and to ensure that its employees and managers maintain) the Confidential Information in strict confidence and to use the Confidential Information solely for the purposes set forth in the Agreement and for fulfilling the Agreement. The Parties further acknowledge and agree that Confidential Information shall be deemed to include all intellectual property rights of the Parties. The Receiving Party may disclose the financial terms of the Agreement to its legal and business advisors and to potential investors, so long as such third parties have entered into a confidentiality agreement with the Receiving Party, the obligations of which are at least as stringent as those contained in the Terms. The Receiving Party may disclose Confidential Information if so required by law or competent authority, giving the Disclosing Party prior notice thereof. The confidentiality obligations of this clause shall not apply to information that (i) was known to or possessed by the Receiving Party prior to disclosure hereunder; (ii) is or becomes part of the public domain through no wrongful act of the Receiving Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is received without confidentiality obligations from a third party with the right to make such disclosure.
- Any Breach. If the Merchant violates the Agreement, Fortumo may, acting reasonably and in good faith: (1) suspend the provision of Services or otherwise restrict the Merchant’s right to use the Products and set a term for the Merchant to cure the breach; (2) withhold any payment of the Merchant’s share or other amounts payable; and/or (3) impose a contractual penalty in the amount of 2,000 (two thousand) euros on the Merchant. This clause does not limit the right of Fortumo to use other remedies permitted under applicable law or the Agreement.
- Third Party Actions. Fortumo may deduct from amounts payable to the Merchant or claim from the Merchant the amount of any deduction, set off, refund, claim, chargeback, withholding, reversal, fine, charge, penalty or other loss that is applied by Payment Providers or competent authorities towards Fortumo as a result of the Merchant Services, advertisements or promotions of the Merchant Services, Merchant’s (in)actions or similar circumstances attributable to the Merchant. The Merchant agrees to immediately compensate Fortumo for any of the above stipulated third party actions and loss.
- Indemnity. The Merchant shall defend, indemnify and hold harmless Fortumo and its affiliates and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all liabilities, damages, taxes, fines, penalties, costs, expenses (including reasonable attorney’s fees) and other losses arising out of or accruing from (1) any Merchant Services, (2) any breach by the Merchant of the representations, warranties, covenants, agreements or other obligations under the Agreement, industry standards or applicable laws.
TERM AND TERMINATION
- Term and Termination. The Agreement remains effective until terminated. Either Party may at any time, without cause, terminate the Agreement giving 3 (three) months prior notice thereof. Either Party may terminate the Agreement with immediate effect, if the other Party is in breach of the Agreement and has not cured the breach within 15 (fifteen) days as of notice of the breach.
- Consequences of Termination. When the Agreement is terminated, all of the legal rights, obligations and liabilities that the Merchant and Fortumo have benefited from or been subject to (or which have accrued over time) while the Agreement was in force or which are expressed or intended to continue indefinitely (e.g. clauses regarding indemnity, limitation of liability, disclaimer of warranties, confidentiality, governing law, disputes etc.), shall be unaffected by the termination. All licenses granted under the Agreement are terminated when the Agreement is terminated.
DISCLAIMER OF WARRANTIES
- The Merchant expressly agrees that the Products, and any content or features made available in connection with the Products, are used at the Merchant’s sole discretion and risk and are provided "as is" and "as available", without warranty of any kind, either express or implied, from Fortumo.
- Fortumo further expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to, the warranties and conditions of merchantability, fitness for a particular purpose and non-infringement, correctness, accuracy and reliability. Unless otherwise expressly stated herein, Fortumo does not warrant that the Products, and any content, services or features made available in conjunction with or through the Products (or the server that makes them available), will be uninterrupted or error-free, free of viruses or other harmful components or that defects therein will be corrected.
- Fortumo is not liable for the performance of or access to the Payment Providers’ billing systems, or the (in)actions of Payment Providers.
LIMITATION OF LIABILITY
- Under no circumstances, including, but not limited to, negligence, will either Party be liable for any loss of earnings, profit, reputation, data, business, or cost of procurement of substitute goods or services, or any special, indirect, incidental, consequential, punitive, or exemplary damages, or indirect loss, arising from or related to the Agreement, breach thereof, the (in)actions of either Party, or any other interactions with each other, even if the Party has been advised of the possibility of such damages.
- Fortumo’s liability in contract, tort, negligence, product liability or otherwise however arising out of or in connection with the Agreement for all events, or series of connected events, occurring in any year of the term of the Agreement shall not exceed in the aggregate 100% (one hundred per cent) of Fortumo’s earnings under the Agreement during six (6) months prior to the event giving rise to liability.
- Force Majeure. Either Party’s performance of any part of the Agreement shall be excused to the extent that it is hindered, delayed or otherwise made impossible or impractical by flood, fire, earthquake, strike or riot, failure of power or telecommunications networks, governmental or military acts, decisions, orders or restrictions, terrorist attacks or any other similar circumstances beyond the reasonable control of that Party and not caused by that Party (collectively referred to as “Force Majeure”). If any Force Majeure condition(s) occur(s), the nonperforming Party shall notify the other Party of the nature of any such condition and the extent of the delay immediately, and shall make reasonable, good faith efforts to resume performance as soon as possible.
- Governing Law. The Agreement shall be governed by the laws of the Republic of Estonia, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not be applied to the Agreement.
- Dispute Resolution. In the event of a dispute regarding the Agreement, the Parties will use their best efforts to settle the dispute amicably by mutual negotiations. Should these fail, the dispute shall be finally solved in the Tartu courthouse of the Tartu County Court in Estonia.
- Severability. If any term, condition or provision of the Agreement is invalid, unenforceable or illegal in whole or in part, that provision shall be replaced by a permissible provision as close in content and purpose as possible to the original provision. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected. All headings (including clause headings) are for reference purposes only and shall not be used for interpretation of the Agreement. In matters not regulated in the Agreement, the Parties shall abide by the laws and industry standards. Failure by a Party to exercise or enforce any provision or right under the Agreement shall not be deemed a waiver of future enforcement of that or any other provision or right.
- Assignment. Fortumo may, at its sole discretion, assign or transfer the Agreement or delegate any of the rights and/or obligations hereunder to a third party. If the Merchant attempts to assign or transfer the Agreement or delegate any of the rights and/or obligations hereunder without Fortumo's prior written consent (which shall not be unreasonably withheld), such assignment shall be void and unenforceable. For reasons of efficient provision of Services at the Fortumo group level, the provider of Services may be a Fortumo group entity other than the contracting Fortumo entity.
- Right of Representation. If you are entering into the Agreement on behalf of a legal entity, such as your employer or company, you represent that you have the legal authority to bind that entity.
- Documentation. The Parties shall promptly provide each other with documentation as may be required by the other Party in order for the other Party to fulfil its obligations under the Agreement or if required by law, competent authorities or Payment Providers.
- Nature of Legal Relationship. The Parties enter into the Agreement as independent contractors, and the Agreement shall not create a partnership, agency, joint venture or employment relationship. Neither Party will be deemed to be a representative of the other nor will either Party have any right to create any obligation on behalf of the other Party, unless otherwise stipulated herein. The Agreement does not protect or benefit a third party and no term of the Agreement shall be enforceable by any person who is not a Party to the Agreement.
- Notices. All notices or other communications under or with respect to the Agreement shall be made by e-mail or in writing to the contact details provided by each Party, each Party being liable for prompt updates to such contact details. Each Party may rely on the contact details provided by the other Party.
- Amendments. Any amendments to the Agreement must be concluded in written form, signed by both Parties, except if stipulated otherwise herein (e.g. clauses 1.3 and 1.4 of the Terms).
- Entire Agreement. The Agreement constitutes the entire agreement between the Parties and supersedes any prior agreement, whether written or oral, and all other communications and negotiations between the Parties relating to the subject matter of the Agreement.