Terms of Service

1.1 Term. The term of the Agreement (“Term”) will begin on the date identified in the Order (“Effective Date”) and will continue for the time-period identified in the Order, or, if no time-period is identified in the Order, for one year, unless earlier terminated in accordance with Section 1.2. Once the Order has been executed or approved as specified in the Order, unless otherwise expressly provided therein, neither party may revoke or terminate the Agreement, in whole or in part, for convenience or for any reason other than as set forth in Section 1.2.

1.2 Termination. Either party may immediately terminate the Agreement upon written notice to the other party if: (i) the other party is in default of the Agreement and fails to cure, or begin implementation of a mutually-agreed-upon plan to cure, such default within 30 days of written notice from the other party specifying the nature of such default and requiring its remedy; (ii) the other party petitions for relief under the Federal Bankruptcy Code or any involuntary petition is filed against the other party and is not dismissed within 60 days; (iii) relief under the Federal Bankruptcy Code is granted with respect to the other party as a debtor; (iv) the other party makes a general assignment for the benefit of creditors; or (v) the other party ceases doing business, assigns, or attempts to assign any portion of the Agreement to an entity other than as provided in Section 14.3.

2.1 Services and Products; Data Processing. The Order and any documentation referenced therein describes the Services or Products, the applicable fees, and any other terms agreed to by the parties. Services and Products are hereinafter referred to collectively as “Services”, unless the context requires that they be referred to individually. If the parties will be exchanging personal data for processing or other use in accordance with the Order, the parties’ responsibilities with respect to data processing will be governed by the terms of the Order (and any other terms incorporated by reference therein) and the Data Processing Addendum (DPA) to these Terms of Service, the terms of which will supplement these Terms of Service..

2.2 Data Products. In addition to these Terms of Service, any data provided pursuant to the Order from Acxiom’s commercially available U.S. data products, including InfoBase^®, Personicx, and Audience Propensities, and any derivatives thereof, such as a resultant model score, segment, or index (collectively, “Data Products”), will be subject to the terms of the Data Products Addendum (USA) to these Terms of Service, the terms of which will supplement these Terms of Service. The provision of any non-U.S. Data Products will require additional terms to be addressed in the Order or in an additional addendum to the Agreement.

2.3 Postal Optimization. For any Acxiom-provided United States postal optimization performed on a Client-provided file, Client must: (i) execute, at least annually, a United States Postal Service (USPS) NCOA^Link Processing Acknowledgment Form (PAF) acknowledging the permitted uses of NCOA^Link; and (ii) comply with the use restrictions established in the PAF. Acxiom is a non-exclusive Full-Service Provider Licensee of the USPS. The following trademarks are owned by the USPS: United States Postal Service^®, NCOA^Link®, DSF^2™, and LACS^Link™.

2.4 Excusable Delay. Acxiom’s delay or non-performance of its obligations under the Agreement will be excused to the extent caused by Client’s failure to perform its obligations under the Agreement. Acxiom will provide Client with reasonable notice of such non-performance or delay and will use commercially reasonable efforts to continue to perform. Client will continue to pay Acxiom for Services actually performed and Products actually delivered by Acxiom prior to and during any such period.

2.5 Consumer Issues.

(a) Client will accept and respond to any communication initiated by a consumer, consumer advocacy group, anti-spam advocacy group, or internet service provider (ISP) arising out of Client’s use of the Products or Services. If an express request is received from a consumer for the source of the consumer’s personal information, Client may reference Acxiom as a source of such information, provided Client has first verified Acxiom as the source. Client must: (i) promptly notify Acxiom of such request and provide Acxiom with a transcript or written description of the communication with the consumer; and (ii) if the information in question is an email address provided as part of the Products, unsubscribe the consumer as soon as practicable from receiving commercial email from Client and inform the consumer of the same.

(b) In any use of Products or Services, Client must honor all consumer elections not to receive marketing solicitations or consumer requests to exercise a right granted to the consumer by applicable law. If such election is related to email marketing, Client must unsubscribe the consumer within ten business days from receipt of the request or election. It is Client’s sole responsibility to ensure that the most current, legally required suppression information has been applied prior to marketing use of Client’s own files or of any Product or Service provided to Client.

2.6 Acxiom Locations and Personnel. All Services performed pursuant to the Agreement may be performed, in whole or in part, by any employees, agents, contractors, subcontractors, or consultants (“Personnel”) of Acxiom or its Affiliates from: (i) any facility or location that is owned or leased by Acxiom, its Affiliates, or its subcontractors; (ii) any facility or location that is owned by a third party, a portion of which is available for use by Acxiom, its Affiliates, or its subcontractors, such as through a co-location arrangement; or (iii) a third-party cloud environment. Acxiom’s Personnel will access personally identifiable information (PII) only to the extent required to perform the Services or processing assigned to such Personnel. Any act or omission of Acxiom’s Personnel will be deemed to be the act or omission of Acxiom, for which Acxiom will be liable in accordance with the terms of the Agreement. As used herein, “Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party to the Agreement. For purposes of the Agreement, “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of an entity, whether through ownership of voting securities, by contract, or otherwise.

2.7 Replacement. If any tool, Product, Service, or any part thereof, used in connection with the Order will become unavailable during the term of the Agreement, Acxiom will provide advance written notice to Client and will procure a replacement for such item(s) that will meet the delivery obligations required by the Agreement; provided, however, that any changes to specific Data Product elements provided pursuant to the Order will not fail to meet the delivery obligations of the Agreement unless: (i) such changes materially diminish Client’s ability to continue using the Data Products as a whole for the purposes described in the Agreement; and (ii) Acxiom is not able to provide replacement Data Product elements.

3.1 Pricing. Client will pay Acxiom for Services and Products in accordance with the pricing set forth in the Order. Unless otherwise specified in the Order, all charges are exclusive of taxes. Unless otherwise specified, a minimum annual price increase may be implemented using the Consumer Price Index for All Urban Consumers – Other Goods and Services as published by the U.S. Department of Labor, Bureau of Labor Statistics.

3.2 Taxes. Client will pay all taxes (including sales, use, excise, value added, goods and services, turnover taxes, business taxes, consumption taxes, gross receipts taxes, withholding taxes, and any other taxes, charges, duties, fees, and levies of a similar nature) levied in connection with the Agreement (whether included on an invoice or identified during an audit), except taxes based upon Acxiom’s net income, corporate franchise, business license, payroll withholding or property taxes on Acxiom-owned assets. Acxiom will collect taxes from Client only for taxing jurisdictions with which Acxiom has a nexus. Client will provide Acxiom with any United States state tax exemptions in a timely manner. If Acxiom does not collect taxes for any reason, Client remains responsible for remitting taxes when appropriate to the applicable taxing authority as the consumer of the goods or services. The parties will cooperate with each other in connection with any audit, inquiry, trial, or appeal regarding taxes in connection with the Agreement, including any tax determination or exemption documentation. Client is not responsible for penalties or interest arising from Acxiom’s failure to properly collect or remit taxes to the applicable tax authorities. If Client is required under the laws of any jurisdiction to withhold taxes from any of the payments made by Client pursuant to the Agreement, then: (i) the amount payable will be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this section) Acxiom receives an amount equal to the amount it would have received had no such deductions been made; (ii) Client will make such deductions; (iii) Client will pay the full amount deducted to the relevant governmental authority in accordance with applicable law; and (iv) Client will promptly provide Acxiom satisfactory evidence of such payment upon request. If applicable, Acxiom will provide evidence of its exemption from withholding taxes.

3.3 Expenses. Client will pay for all reasonable travel and expenses incurred by Acxiom in connection with the performance of Services in accordance with Client’s reimbursement policy made known to Acxiom in writing, or, in the absence thereof, in accordance with Acxiom’s reimbursement policy. Client will reimburse Acxiom for all costs incurred by Acxiom in responding to any government agency inquiry or a third-party subpoena related to Client’s activities or business.

3.4 Payment. Payment of invoiced amounts is due within 30 days of receipt of invoice (if sent via electronic transmission, Client receipt is deemed to be the date of such transmission). Acxiom will deliver auto-generated “.pdf” invoices to Client via email. Any other invoice delivery method (e.g., third-party portals) will be subject to prior review and mutual agreement of the parties, provided that Client remains responsible for any applicable processing fees that are outside the scope of Acxiom’s standard invoice delivery. If Client disputes the validity of an invoiced fee, Client must provide prompt written notice to Acxiom stating the details of any such dispute. If only a portion on an invoice is in dispute, Client will pay all undisputed amounts in accordance with the terms of this section. Acceptance by Acxiom of any partial payment does not constitute a waiver of the disputed amounts. Any undisputed amounts not paid within 30 days of receipt of invoice will accrue interest at a rate of one percent per month or the maximum lawful rate, whichever is less, with such amount accruing and determined as of the date such undisputed amount was originally due.

4.1 Work Product. Any deliverables created specifically for Client by Acxiom under the Agreement, exclusive of Acxiom Intellectual Property (“Work Product”), will be owned by Client and considered work made for hire by Acxiom for Client. To the extent that any Work Product is not considered a work made for hire, Acxiom agrees to assign all right, title, and interest in and to such Work Product to Client.

4.2 Acxiom Intellectual Property. The following “Acxiom Intellectual Property” will be and remain the sole property of Acxiom, its Affiliates, or its or its Affiliates’ licensors: (i) all software (including source code and object code) and related documentation that is commercially licensed by Acxiom or its Affiliates to their clients or licensed by Acxiom or its Affiliates from a third party; (ii) all components of Acxiom’s, its Affiliates’, or their licensors’ Products, including, without limitation, Data Products, identity resolution Products, and any other logic or process used by Acxiom or its Affiliates to match or integrate data; (iii) all systems, mechanisms, hardware configurations, or other tools created or used by Acxiom or its Affiliates to build a database or perform Services; (iv) all inventions, discoveries, works, materials, products, devices, coding, designs, specifications, processes, or other information or documentation created or acquired by Acxiom or its Affiliates outside the scope of the Agreement or prior to the performance of the Services; and (v) any intellectual property related to items (i) through (iv). Client will have no interest in, or claim to, Acxiom Intellectual Property, or any derivatives thereof or modifications or adaptations thereto, except as specifically granted herein. Acxiom or its Affiliates may reuse any ideas, concepts or know-how developed or acquired during the performance of the Agreement, exclusive of Client Confidential Information. Nothing in the Agreement will preclude Acxiom or its Affiliates from acquiring, developing, or marketing for itself or others technology performing the same or similar functions as the Work Product.

5.1 Confidential Information. During the Term, the parties may, either pursuant to an Order or as part of discussions, demonstrations, tests or analyses related to a potential business project between the parties, disclose to one another, or other entities may disclose to a party on the other party’s behalf, certain confidential information (collectively, “Confidential Information”), including: (i) with respect to Client, Client’s consumer or business data, including, without limitation, Client’s data and any data Client may license from third parties (collectively, “Client Data”), consumer or business data of Client’s third-party marketing partner(s), tapes, mailing lists, product designs, business and marketing plans, and product strategies; (ii) with respect to Acxiom, Acxiom Intellectual Property, pricing information, product designs, capabilities, specifications, solution design documents, layouts, hardware configurations, flowcharts, presentations, and analysis reports or results from the testing of any products, as well as any information of Acxiom’s or its Affiliates’ clients, prospects, or vendors that is stored and used within an Acxiom or Acxiom Affiliate’s facility; (iii) the terms or conditions of this Agreement, which will be the Confidential Information of both parties; (iv) any other materials properly marked “confidential” or “proprietary” or that a reasonable person in the industry would consider to be confidential or proprietary; and (v) any information derived from or related to the foregoing.

5.2 Obligations. Each party will use commercially reasonable efforts to prevent the unauthorized access to or disclosure of the other party’s Confidential Information, including derivative works, modifications, or adaptations. Each party will limit access to the other party’s Confidential Information to its own or its Affiliates’ Personnel strictly on a “need to know” basis; provided, however, that such Personnel have executed an agreement with such party containing confidentiality provisions at least as restrictive as those contained herein. Upon termination of this Agreement, each party will promptly destroy all of the other party’s Confidential Information then held and, upon request, certify such destruction in writing.

5.3 Injunctive Relief. The unauthorized disclosure of any aspect of Confidential Information is likely to give rise to irreparable injury which may be inadequately compensable in damages. Accordingly, either party may obtain injunctive relief against the breach or threatened breach of this Section 5, in addition to any other legal remedies that may be available, and each party consents to the obtaining of such injunctive relief.

5.4 Unauthorized Disclosure. Each party will, as soon as reasonably practical after discovery, report to the other party any unauthorized disclosure or access to the other party’s Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident and will take all reasonable measures to prevent any further unauthorized disclosure or access.

5.5 Mandated Disclosure. If a receiving party is required to provide Confidential Information of a disclosing party to any court or government agency pursuant to a written court order, subpoena, regulatory demand, or process of law (each, a “Mandated Disclosure”), the receiving party must: (i) unless prohibited by applicable law, provide the disclosing party with prompt written notice and reasonable cooperation if a protective order is sought by the disclosing party; (ii) take reasonable steps to limit any such disclosure only to the Confidential Information required to be compliant with the Mandated Disclosure; and (iii) continue to otherwise protect all Confidential Information disclosed in response to such Mandated Disclosure.

5.6 Exceptions. Notwithstanding anything in this Agreement to the contrary, Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the party receiving the information; (ii) was in the lawful possession of the party receiving the information prior to the disclosure and had not been obtained either directly or indirectly from the party disclosing the information; (iii) is lawfully disclosed by a third party without restriction on disclosure; or (iv) is independently developed by the party receiving the information without use of, or reference to, Confidential Information of the other party.

6.1 Acxiom Warranties. Acxiom warrants that: (i) it has the necessary equipment, computer capacity, software, programs, and trained personnel to properly perform the Services and provide the Products consistent with standard industry practices; (ii) it will perform the Services in a professional and workmanlike manner; and (iii) any Data Products will be, upon delivery, as current, accurate, and complete as may be reasonably achieved using the source data and the compilation and data processing methods normally employed by Acxiom or its Affiliates.

6.2 Client Warranties. For any data about an individual disclosed to Acxiom by Client or by a third party on Client’s behalf, Client warrants that it will not instruct Acxiom to process or to take any other action with such data if Client knows, or should reasonably know, that such action would violate an applicable law, Client’s own published privacy policies, or any other published privacy policies or notice and disclosure statements under which such data was collected.

6.3 Mutual Warranties. Each party warrants to the other that: (i) it has full power and authority to enter into and perform the Agreement; (ii) the execution and delivery of the Agreement have been duly authorized; (iii) the Agreement does not violate any law, statute, or regulation and does not breach any other agreement or covenant to which it is a party or is bound; (iv) its Confidential Information has been legally obtained; (v) the provision of its Confidential Information to the other does not violate any laws or agreements with third parties; and (vi) it will otherwise comply with all applicable laws, rules, and regulationsdaf.

6.4Warranty Disclaimers. EXCEPT AS STATED IN THIS SECTION 6 OR AS EXPRESSLY PROVIDED IN THE ORDER, THERE ARE NO OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ANY WARRANTIES OF ACCURACY, COMPLETENESS, OR CURRENTNESS

6.5 Suspension of Performance. Either party may suspend or discontinue the performance of the Services or the delivery of the Products if, in its reasonable judgment, the performance of the Services or the delivery of the Products would violate any applicable law, rule, or regulation. Such action will not constitute a default under the Agreement. The parties will use commercially reasonable efforts to implement an alternative method of performing the Services or delivering replacement Products. If an alternative method cannot be reasonably implemented, Acxiom will refund any fees pre-paid by Client for Services not performed or Products not delivered.

Acxiom’s sole obligation and Client’s exclusive remedy for any claim of defective Services or Products is to correct, re-perform, or re-deliver, as applicable, the Services or Products in question without charge, or, if re-performance is commercially impracticable, to refund the price paid by Client for such Services or Products. Client must provide written notice to Acxiom of any such claim in sufficient detail with any necessary backup information or documents. With respect to any Data Products, Client acknowledges that some corrections of errors in the Data Products are dependent on the availability of same from the source of the applicable data

8.1 Indirect Damages. SUBJECT TO SECTION 8.3, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2 Aggregate Liability. SUBJECT TO SECTION 8.3, Acxiom’s aggregate liability FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THE AGREEMENT will be limited to twelve (12) MONTHS’ FEES paid by Client.

8.3 Form of Action; Exclusions. The limitations in this Section 8: (i) will apply regardless of the legal theory or form under which any action is brought; and (ii) will not apply to a party’s indemnification obligations set forth in Section 9 or to damages resulting from a party’s gross negligence or intentional misconduct. For purposes of the Agreement, “gross negligence” will mean the intentional failure to perform a manifest duty in reckless disregard of the consequences. Each party will have a duty to mitigate damages for which the other party is responsible.

9.1 General. Each party agrees to indemnify and hold the other party, its agents, and its employees harmless from and against any third-party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) that may arise against the indemnified party as the result of: (i) injuries or property damage caused by the indemnifying party’s employees; (ii) the indemnifying party’s failure to comply with all applicable laws and regulations; and (iii) the misappropriation or intentional misuse of the indemnified party’s Confidential Information by the indemnifying party. The indemnifying party will have the right to exercise reasonable control over any litigation within the scope of this indemnity; provided, however, that the indemnified party will have the right to participate in any such litigation insofar as it concerns claims against it. That right to participate includes the indemnified party’s right to select and retain counsel to represent it at the indemnified party’s own expense.

9.2 Infringement.

(a) Except as provided below, each party will defend and indemnify the other from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any claim that the materials provided to it by the indemnifying party pursuant to the Agreement (including any Client-provided data or other content, Work Product, or Confidential Information) infringes a valid patent, trademark or copyright, or misappropriates a trade secret of a third party, provided that: (i) the indemnified party has provided prompt written notice of such claim and reasonable cooperation, information, and assistance in connection therewith, and (ii) the indemnifying party will have sole control and authority with respect to the defense, settlement, or compromise of any such claim.

(b) Should the Services or Products, or any part thereof, become, or in Acxiom’s opinion, be likely to become, the subject of a claim of infringement, Acxiom may, at its option and expense, either procure for Client the right to continue using the Services or Products or replace or modify the Services or Products so as to make them non infringing. If replacement or modification is not possible or is commercially unreasonable, Client will receive a pro rata refund of the fees paid to Acxiom with respect to the particular Services or Products that are the subject of such claim.

(c) Section 9.2(a) and Section 9.2(b) state the entire liability of Acxiom and the sole and exclusive remedy of Client with respect to any claim of infringement. Neither party will have any liability or obligation to the other for any infringement claim to the extent caused by or based upon: (i) the combination of materials with other products or services not furnished or authorized by the party providing the materials; or (ii) additions or modifications made to the materials after delivery that are not made by the party providing the materials or authorized by the Agreement.

9.3 Failure to Notify. No party will have any obligation to defend or indemnify the other party pursuant to this Section 9 if the indemnifying party is not notified promptly of the claim and is materially prejudiced thereby. The indemnified party will cooperate to the extent necessary in the defense of any claim within the scope of these indemnities.

Neither party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war (whether or not declared), riot, flood, civil commotion, insurrection, severe weather conditions, or any other cause beyond the reasonable control of the party delayed.

Acxiom will perform all Services and deliver all Products hereunder as an independent contractor, and nothing contained herein will be deemed to create any employment, association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties hereto or any of Client’s Affiliates or subsidiaries, or to provide either party with the right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other party.

Acxiom may include Client and Client’s logo on its client list in presentations, white papers, or reports made to clients or potential clients, or to its parent company’s shareholders or stock analysts, provided no representation, express or implied, is or will be made as to Client’s opinion of Acxiom’s Services or Products. Any proposed press releases, advertising, or other promotional materials that use the other party’s name or trademark must be sent to the other party for approval, which will not be unreasonably withheld.

Any notice or other communication required under the Agreement or applicable law will be made by electronic mail and deemed to be given upon receipt of transmission. Notices or other communications will be sent: (i) to the email address(es) of the person(s) listed in the Order as a contact for the party to be notified; (ii) to the email address(es) of the person(s) executing or otherwise formally approving the Order for the party to be notified (or, in the case of Acxiom, issuing the Order); or (iii) to such email address(es) as may be designated in writing by the party to be notified. A party may change the name or email address of the designated recipient by giving notice to the other party in writing. If any notice or other communication is given to Acxiom pursuant to this provision, then in addition to the above, Client must send a copy of such notice or communication to legalsupport@acxiom.com. Client will provide a contact in the Order for any legal or compliance issues that may arise

14.1 Applicable Law. The Agreement will be governed and construed in accordance with the laws of the State of Delaware USA, without regard to conflict of law principles.

14.2 Conflicting Provisions.In the event of conflicting provisions between these Terms of Service, including any addenda to the Terms of Service, and the Order, these Terms of Service will control and resolve the conflict, unless the Order expressly states that the provision in the Order controls or supersedes in the event of a conflict. In the event of any conflicting provisions between these Terms of Service, including any addenda to these Terms of Service, and any other terms incorporated by reference in the Order, the other terms incorporated by reference will control and resolve the conflict solely as to the the subject-matter thereof. In the event of conflicting provisions between these Terms of Service and any addenda to these Terms of Service, the addendum will control and resolve the conflict solely as to the subject-matter thereof.

14.3 Assignment. Neither party may assign its rights or obligations under the Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed; provided, however, that no consent will be required for assignment by either party: (i) to an Affiliate or other entity under common control with such party; or (ii) in connection with a direct or indirect purchase, merger, reorganization, consolidation or sale of all or a portion of the assigning party’s assets. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

14.4 No Third-Party Beneficiaries. Except as otherwise expressly provided for in the Agreement, no provision of the Agreement is intended to confer rights or other benefits to any third party

14.5 Approvals and Consents. Any approval or consent requested of either party will not be unreasonably withheld, delayed, or conditioned, unless specifically stated to the contrary in the Agreement.

14.6 Survival of Terms, Rights, and Remedies. Any provision of the Agreement which contemplates performance or observance subsequent to the expiration of the Term or any termination of the Agreement, including all provisions with respect to payment of accrued amounts, intellectual property, confidentiality, limitation of liability, and indemnification, will survive any termination of the Agreement and continue in full force and effect, and no termination will impair or otherwise affect any rights or remedies at law or in equity that arose prior to such termination.

14.7 Execution of Agreement. If the Order is of a type that is to be executed by the parties (rather than mutually approved via another method specified in the Order), then the Order may be executed in any number of counterparts, including via the exchange of .pdf copies or by the use of a mutually agreeable electronic signature authentication program, each of which may be executed by less than all of the parties hereto and will be enforceable with respect to the parties actually executing such counterparts.

14.8 Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject-matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties. No terms or conditions of either party’s invoice, purchase order, or other administrative document (unless signed or otherwise formally approved by authorized representatives of both parties and expressly referencing that it amends the Agreement) will be effective as a modification of the terms and conditions of the Agreement, regardless of the other party’s failure to object to such form.