Terms & Conditions
Last Updated: 06 December 2021.
1. AGREEMENT TO THE TERMS.
By using the Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, you should not use the Services. If you are accessing and using the Services on behalf of a company (such as an employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms.
3. ACCESS AND USE; SERVICES.
While our mission is to decrease your development time, we have a few restrictions relating to the access and use of our Services which we would need you to follow. Use the Services as intended, fairly, and with good common sense and care, and you should be just fine.
(a) Rights to our Services.
Subject to these Terms, KittyCAD hereby grants you a worldwide, limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) non-sublicensable right to use, access and/or operate the Services in accordance with these Terms and the Documentation (as defined below) (“Use”) the Services during the Term, solely for your internal business purposes in accordance with, and subject to, the limits, volume or other measurement or conditions of permitted Use for the Services as set forth in the applicable order form.
(b) Use Restrictions.
You will not at any time and will not permit any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity (each, a “Person”) (including, without limitation, Authorized Users) to, directly or indirectly: (i) Use the Services in any manner beyond the scope of rights expressly granted in these Terms; (ii) modify or create derivative works of the Services or any accompanying documentation (the “Documentation”), in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease Use of the Services to any other Person, or otherwise allow any Person to Use the Services for any purpose other than for your benefit in accordance with these Terms; (v) Use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by KittyCAD for use expressly for such purposes; or (viii) Use the Services, Documentation or any other KittyCAD Confidential Information (as defined below) for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
(c) Authorized Users.
You will not allow any Person other than an employee or contractor whom (i) you have authorized to Use the Services for purposes of operating and maintaining the Services; and (ii) signs up for an account to Use the Services in accordance with KittyCAD’s then-current account registration procedures (each, an “Authorized User”) to Use the Services. You may permit Authorized Users to Use the Services, provided that you ensure each Authorized User complies with all applicable provisions of these Terms and that you are responsible for acts or omissions by Authorized Users in connection with their Use of the Services. You will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify KittyCAD if you know or reasonably suspect that any user name and/or password has been compromised. Each account for the Services may only be accessed and used by the specific Authorized User for whom such account is created.
(d) Third-Party Services.
Certain features and functionalities within the Services may allow you and Authorized Uses to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Services. KittyCAD does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. You are solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for your use of the Third-Party Services in connection with the Services.
(e) Intellectual Property and Other Rights.
Subject to the limited rights expressly granted in these Terms, KittyCAD reserves and, as between the parties will solely own, the Services, the underlying software provided in conjunction with the Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Services or any the implementation and/or other professional services, if any, to be provided by KittyCAD to you as set forth in the relevant order form, and Documentation and Aggregate Data (as defined below), all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing (collectively, “KittyCAD IP”) and all rights, title and interest in and to the KittyCAD IP. To the extent ownership of any rights in any KittyCAD IP vests in you, such rights are hereby automatically assigned by you to KittyCAD. No rights are granted to you hereunder other than as expressly set forth in these Terms. From time to time, you or your Authorized Users may provide KittyCAD with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). You hereby grant KittyCAD a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with KittyCAD’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
4. FEES AND PAYMENT.
Money makes the world go around, and (unfortunately) we cannot offer our Services for free. Below, we provide the financial terms relevant to your use of the Services.
You will pay KittyCAD the non-refundable fees set forth in the relevant order form in accordance with the terms therein (“Fees”) and without offset or deduction. KittyCAD reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to you (which may be sent by email). Except as otherwise provided in the relevant order form, KittyCAD will issue [monthly] invoices to you during the Term, and you will pay all amounts set forth on any such invoice no later than [thirty (30)] days after the date of such invoice. If you have signed up for automatic billing, KittyCAD will charge your selected payment method (such as a credit card, debit card, gift card/code, or other method available in your home country) for any Fees on the applicable payment date, including any applicable taxes. If KittyCAD cannot charge your selected payment method for any reason (such as expiration or insufficient funds), you remain responsible for any uncollected amounts, and KittyCAD will attempt to charge the payment method again as you update your payment method information. In accordance with local law, KittyCAD may update information regarding your selected payment method if provided such information by your financial institution.
Payments due to KittyCAD under these Terms must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by KittyCAD or such other payment method mutually agreed by the parties. All payments are non-refundable and neither party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other party under these Terms. If you fail to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and KittyCAD may suspend Services until all payments are made in full. You will reimburse KittyCAD for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
You are responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by you to KittyCAD hereunder, other than any taxes imposed on KittyCAD’s income. Without limiting the foregoing, in the event that you are required to deduct or withhold any taxes from the amounts payable to KittyCAD hereunder, you will pay an additional amount, so that KittyCAD receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
5. CONFIDENTIAL INFORMATION.
Secrecy, as appropriate.
(a) As used in these Terms, “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other party (the “Receiving Party”) in connection with these Terms, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Services and the Documentation will be deemed Confidential Information of KittyCAD. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. Without limiting the foregoing, nothing in these Terms will limit or restrict KittyCAD’s ability to use or disclose any general know-how, experience, concepts and/or ideas that KittyCAD or its personnel acquire or obtain in connection with the performance of KittyCAD’s obligations hereunder.
(b) The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under these Terms; provided that KittyCAD may use and modify your Confidential Information in deidentified form for purposes of developing and deriving any data that is derived or aggregated in deidentified form from (i) any Customer Materials (as defined below), in anonymized form; or (ii) your and/or your Authorized Users’ Use of the Services, including, without limitation, any usage data or trends with respect to the Services and its component features and functionalities, in each case in anonymized form (collectively, “Aggregate Data”). The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under these Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in these Terms, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
6. CUSTOMER MATERIALS AND DATA.
You own your data but grant us the rights to use your data in connection with our Services and our business generally.
(a) KittyCAD acknowledges that, as between you and KittyCAD and except as set forth in Section 7(b), you own and retains all right, title and interest in and to all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on your behalf or your Authorized Users through the Services or to KittyCAD in connection with you and your Authorized Users’ Use of the Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by KittyCAD and made available through or in connection with the Services (collectively, “Customer Materials”).
(b) You hereby grant KittyCAD a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Services and KittyCAD’s other related products, services and technologies during the Term.
“Indemnification” is simply a promise that you will cover our losses if you do something that causes us harm. For example, if we get sued (or threats of a suit) because someone is claiming that you violated these Terms, you need to be responsible for it.
(a) KittyCAD Indemnification.
Subject to Sections 8(b) and (e), KittyCAD will defend you against any claim, suit or proceeding brought by a third party (“Claims”) alleging that your Use of the Services infringes or misappropriates such third party’s intellectual property rights, and will indemnify and hold you harmless against any damages and costs awarded against you or agreed in settlement by KittyCAD (including reasonable attorneys’ fees) resulting from such Claim.
KittyCAD’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) your breach of these Terms, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) your failure to use any enhancements, modifications, or updates to the Services that have been provided by KittyCAD; (iv) modifications to the Services by anyone other than KittyCAD; or (v) combinations of the Services with software, data or materials not provided by KittyCAD.
(c) IP Remedies.
If KittyCAD reasonably believes the Services (or any component thereof) could infringe any third party’s intellectual property rights, KittyCAD may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for you to continue Use. If KittyCAD determines that neither alternative is commercially practicable, KittyCAD may terminate these Terms, in its entirety or with respect to the affected component, by providing written notice to you. In the event of any such termination, KittyCAD will refund to you a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute your sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Services.
(d) Your Indemnification. Subject to Section 8(e), you will defend KittyCAD against Claim arising from (i) Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s intellectual property rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of your products or services; (iii) Use of the Services by you or your Authorized Users in a manner that is not in accordance with these Terms or the Documentation, including, without limitation, any alleged breach of the use restrictions in Section 3(b); and (iv) any alleged breach of these Terms, and in each case, will indemnify and hold harmless KittyCAD against any damages and costs awarded against KittyCAD or agreed in settlement by you (including reasonable attorneys’ fees) resulting from such Claim.
(e) Indemnification Procedures.
The party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than [thirty (30) days] after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
Sections 9 & 10 are capitalized because our lawyers said so. But also because we want to make sure you don’t miss them. We are not making any promises that are not contained in the agreement, and our liability is limited to your direct damages – meaning the fees that you paid for the Services.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND OTHER KITTYCAD IP ARE PROVIDED ON AN “AS IS” BASIS, AND KITTYCAD MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU, YOUR AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE KITTYCAD IP, THE SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KITTYCAD HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, KITTYCAD HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
9. LIMITATIONS OF LIABILITY.
(a) Exclusion of Damages.
EXCEPT FOR: (I) ANY INFRINGEMENT BY KITTYCAD OF THE YOUR INTELLECTUAL PROPERTY RIGHTS OR (II) FRAUD OR WILLFUL MISCONDUCT BY KITTYCAD, KITTYCAD WILL NOT BE LIABLE TO THE YOU OR YOUR AUTHORIZED USERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE KITTYCAD IP OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT KITTYCAD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(b) Total Liability.
IN NO EVENT WILL KITTYCAD’S TOTAL LIABILITY TO YOU OR YOUR AUTHORIZED USERS IN CONNECTION WITH THESE TERMS, THE KITTYCAD IP OR THE PROVISION OF THE SERVICES EXCEED THE FEES ACTUALLY PAID BY YOU TO KITTYCAD IN THE [SIX (6)] MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT KITTYCAD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
(c) Basis of the Bargain.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN KITTYCAD AND YOU, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
10. TERM AND TERMINATION.
These Terms shall apply for the term detailed in your order form. However, these Terms may be terminated if they are materially breached by either party.
The initial term of these Terms begins on the effective date and expires at the end of the Initial Term as specified in the relevant order form (the “Initial Term”). Following the Initial Term, these Terms will automatically renew for additional periods of [the same duration as the Initial Term] / [one (1) year] (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides the other with at least [thirty (30)] days’ written notice of its intent not to renew these Terms prior to the end of the then-current Term.
Either party may terminate these Terms, effective on written notice to the other party, if the other party materially breaches these Terms, and such breach remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
This Section 10(c) and Sections 1, 3(b), 3(c), 3(e), 4, 5, 6(b), 7, 8, 9, 10(d), and 12 survive any termination or expiration of these Terms and any order form.
(d) Effect of Termination.
Upon expiration or termination of these Terms: (i) the rights granted pursuant to Section 3(a) will terminate; and (ii) you will return or destroy, at KittyCAD’s sole option, all KittyCAD Confidential Information in your possession or control, including permanent removal of such KittyCAD Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in your possession or under your control, and at KittyCAD’s request, certify in writing to KittyCAD that the KittyCAD Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect your obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or, unless expressly set forth herein, entitle you to any refund.
Subject to the provisions of Section 5, each party shall have the right to publicly announce the existence of the business relationship between the parties. In addition, during the term of your Use of the Services, KittyCAD may use your name, trademarks, and logos (collectively, “Customer’s Marks”) on KittyCAD’s website and in its marketing materials to identify you as KittyCAD’s customer, and for the purpose of providing the Services to you, provided that KittyCAD shall use commercially reasonable efforts to adhere to any usage guidelines furnished by you with respect to Customer’s Marks.
Other legal stuff.
(a) Entire Agreement.
These Terms, including any applicable order form(s) and/or tester agreements, are the complete and exclusive agreement between the parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. These Terms may be amended or modified only by a written document executed by duly authorized representatives of the parties.
All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be sent via email to email@example.com. Any notices or other communications provided by KittyCAD under these Terms will be sent to you via email to your designated email address or through the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Either party’s failure to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these Terms will be effective unless it is in writing and signed by the party granting the waiver.
If any provision of these Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of these Terms will remain in full force and effect.
(e) Governing Law; Jurisdiction.
These Terms will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in San Francisco County, California and the parties irrevocably consent to the personal jurisdiction and venue therein.
Neither party may assign or transfer these Terms, by operation of law or otherwise, without the other party’s prior written consent. Any attempt to assign or transfer these Terms without such consent will be void. Notwithstanding the foregoing, either party may assign or transfer these Terms to a third party that succeeds to all or substantially all of the assigning party’s business and assets relating to the subject matter of these Terms, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, these Terms is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns.
(g) Equitable Relief.
Each party agrees that a breach or threatened breach by such party of any of its obligations under Section 5 and, in the case of you, the customer, Section 3(b), would cause the other party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
(h) Force Majeure.
Neither party will be responsible for any failure or delay in the performance of its obligations under these Terms (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
KittyCAD may use subcontractors, and other third-party providers in connection with the performance of its own obligations hereunder as it deems appropriate. Notwithstanding anything to the contrary in these Terms, with respect to any third-party vendors including any hosting (e.g. AWS or Google) or payment vendors (e.g. Stripe), KittyCAD will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of KittyCAD.
(j) Export Regulation.
You will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Services or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
(k) U.S. Government End Users.
The Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in these Terms.
(l) Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing in these Terms will be construed to establish any partnership, joint venture or agency relationship between the parties. Neither party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other party’s prior written consent.
(m) No Third-Party Beneficiaries.
No provision of these Terms is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties and their respective successors and assigns.
These Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.