Effective May 25, 2018 (view archived version)
If you represent a business entity or organization purchasing a ZeroFox for Business subscription, the terms governing your subscription are available here.
This ZeroFox for Everyone User Agreement (this “Agreement”) is between ZeroFox, Inc., a Delaware (USA) corporation (“ZeroFox”), and you (“you” or “Customer”).
You represent and warrant that you are at least 18 years of age, that you will only access and use the ZFE Services (as defined below) for your own personal, non-commercial purposes, and that you have the right, power and authority to enter into this Agreement. This Agreement becomes binding and effective on you upon the earliest of: (1) when you access or use the Services, (2) when you click the “I agree” (or similar) button or check box referencing this Agreement, (3) when ZeroFox accepts an Order from you, or (4) when you enter into a contract or order with a ZeroFox-authorized reseller (“Reseller”) incorporating this Agreement.
Capitalized terms not otherwise defined in this Agreement will have the respective meanings assigned to them in Section 32. ZeroFox may modify this Agreement from time to time, subject to the terms in Section 33 below.
This Agreement governs your purchase of a subscription to the cloud-hosted ZeroFox for Everyone services (“ZFE Services”) through an Order, as well as your purchase of any Support Services through the same or additional Orders. Each Order will be deemed to incorporate the terms of this Agreement and identify, as applicable, the Service Parameters, Support Services, Order Term, fees and other relevant details. If you purchase through a Reseller, such details will be identified in the Order placed with ZeroFox by the Reseller for you, and the Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on ZeroFox’s behalf.
2. ZFE Services
3. Support Services
Subscriptions to the ZFE Services do not include any committed or guaranteed Support Services. If you elect to purchase Support Services, subject to this Agreement, ZeroFox will provide those Support Services at the plan levels under your Order. Customer agrees to provide ZeroFox with reasonable information and assistance to facilitate performance of any Support Services. To the extent ZeroFox creates reports or other works in the course of providing Support Services (“Ancillary Works”), you are authorized to use the Ancillary Works in connection with the ZFE Services solely for your own personal, non-commercial purposes.
4. Customer Content
As between the Parties, Customer owns all right, title and interest in and to Customer Content, including all associated Intellectual Property Rights. Customer hereby grants to ZeroFox a non-exclusive, royalty-free, right and license during the Order Term to use, reproduce, transmit, perform, display and store Customer Content solely for ZeroFox (and subject to Section 23, its Affiliates and Ordinary Course Providers) to fulfill ZeroFox’s obligations and provide the ZFE Services and, if purchased, Support Services under the applicable Order.
5. Source Content, Source Platforms and Other Outside Material
6. Takedown Requests
If included in purchased Support Services and requested by Customer, ZeroFox will initiate Takedown Requests with the applicable Source Platform or other third-party online service provider. In such case, Customer hereby grants to ZeroFox for the Order Term a limited, revocable appointment to submit Takedown Requests on behalf of Customer and agrees to provide written authorizations upon ZeroFox’s request that ZeroFox can share with the third-party provider(s) to confirm ZeroFox’s authority to submit such Takedown Requests. Customer understands that ZeroFox does not and cannot control the processing of Takedown Requests by Source Platforms or other third-party providers, guarantee success or provide legal advice.
7. Customer Responsibilities
You will be solely responsible for: (a) complying with Applicable Laws, including Data Protection Laws, and the Acceptable Use Policy; (b) providing, installing and maintaining at Customer’s own expense all equipment, facilities and services necessary to enable access and use of the Services; (c) providing all notices and receiving all consents and authorizations from providers of Outside Material; (d) the accuracy, quality and legality of Customer Content; (e) ensuring no Customer Content includes Sensitive Personal Information; and (f) all activities conducted under its user logins. You agree to use commercially reasonable efforts to prevent unauthorized access or use of the ZFE Services, and shall contact ZeroFox promptly if any logins are lost, stolen or disclosed to an unauthorized person or you reasonably believe the ZFE Services have been compromised.
8. Customer Restrictions
No provision of this Agreement includes the right to, and you shall not, directly or indirectly: (a) enable any other person or entity to access and use the Services; (b) modify or create any derivative work based upon the Services; (c) engage in, permit or suffer to continue any copying or distribution of the Services; (d) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the ZFE Services (except to the extent such restriction is limited under Applicable Law); (e) access or use the Services, User Guide or Ancillary Works for purposes of competitive analysis or the development, provision or use of competing products or services; (f) remove, obscure or alter the Acceptable Use Policy or any proprietary notice related to the Services; (g) send or store Malicious Code; or (h) use or permit others to use the Services other than as described in the User Guide, the Acceptable Use Policy and this Agreement, or for any unlawful purpose.
9. Investigation and Suspension
ZeroFox reserves the right to investigate potential violations of Sections 7 and 8, and to monitor, restrict and remove any Customer Content or Outside Material. In the event ZeroFox believes the terms of Section 7 or 8 are being violated, in addition to any other remedies available at law or in equity (including termination pursuant to Section 19), ZeroFox will have the right to suspend your access to and use of the Services for so long as is reasonably necessary to address the potential violation. ZeroFox may report any activity that ZeroFox reasonably believes violates any law or regulation to law enforcement, regulators or other appropriate party, and may also cooperate with any investigation by such parties. For clarity, ZeroFox reserves the right, but does not assume any obligation to Customer, to take any of the actions described in this Section 9.
10. Service Improvements, Developments and Analytics
ZeroFox may make such changes to any of the Services, User Guide and/or Ancillary Works that ZeroFox deems necessary or appropriate: (a) to comply with Applicable Law or Outside ToS; (b) based on suggestions or feedback from Customer with respect to the Services, User Guide and/or Ancillary Works (“Feedback”); or (c) to enhance the competitive strength of the Services and the quality, delivery or performance of Services. Subject to this Section and Applicable Law, ZeroFox may use information related to Customer’s use of the Services (“Analytics”) to provide, evaluate, improve and promote ZeroFox’s software and services, including to provide Customer with insights and other reporting. Except where Analytics are used directly for Customer, ZeroFox shall de-identify Analytics with respect to any Personal Information and shall in no event attribute any Analytics to Customer (or any Authorized User) without Customer’s prior written consent. The foregoing shall not, however, preclude ZeroFox from using Source Content or other Outside Material that is or becomes publicly available.
11. ZeroFox Proprietary Rights
As between the Parties, ZeroFox is the sole and exclusive owner of all right, title and interest in and to the Services and User Guide and, exclusive of any Customer Content or Customer Confidential Information therein, Ancillary Works and Feedback, as well as any and all know-how, processes, methods, specifications, inventions, user interfaces, libraries and other technology and materials of any kind that are used or provided by ZeroFox to Customer in connection with the Services, in all cases together with all associated Intellectual Property Rights. No title to or ownership of the Services or any associated Intellectual Property Rights is transferred under this Agreement and ZeroFox reserves all rights not otherwise expressly granted in this Agreement.
12.1. Unless your purchase is through a Reseller, Customer shall pay to ZeroFox the amounts specified in each Order in accordance with its terms and this Agreement. Unless otherwise specified in the Order, all amounts must be paid in U.S. dollars within 30 days of receipt of each ZeroFox invoice.
12.2. If you are paying using a credit card or any digital payment method supported by ZeroFox, you authorize ZeroFox to charge your account for the Services using that payment method. You must keep all information in your billing account current to ensure that all amounts are charged to the appropriate account and are timely paid. If you notify ZeroFox to stop using a previously designated payment method and fail to designate an alternative, ZeroFox may immediately suspend your access to the Services. Any notice from you changing your billing account will not affect charges ZeroFox submits to your billing account before ZeroFox reasonably can act on your request. ZeroFox uses a third-party intermediary to manage credit card processing, and this intermediary is not permitted to use your credit card information except in connection with your authorized purchases. Notice (including email) from our third-party credit card processor declining your credit card or otherwise relating to your account will be deemed valid notice from ZeroFox.
12.3. If your purchase is part of an introductory or special-pricing offer, after the introductory offer expires, your Services will automatically renew at the applicable then-current price depending on your selection (e.g., annual, monthly, membership tier/level, etc.) until you cancel the Services. The then-current renewal price is subject to change but we will notify you in advance of any increase.
12.4. If your purchase is through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller and you acknowledge that ZeroFox may terminate all of your rights with respect to the Services if ZeroFox does not receive its corresponding payment from the Reseller.
All fees and amounts set forth in the Orders are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”). Customer shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Customer under the Orders and this Agreement (other than any Taxes on ZeroFox’s income, revenues, gross receipts, personnel or assets). If Customer is required to deduct or withhold any Taxes under Applicable Law, Customer must pay the amount deducted or withheld as required by Applicable Law and pay ZeroFox an additional amount so that ZeroFox receives payment in full of amounts due under this Agreement as if there were no deduction or withholding.
14. Renewals and Cancellation
Unless you give notice of your intent to cancel and not renew by calling (855) 936-9369, the Order will automatically renew for additional periods of the same duration as the expiring Order Term (each, a “Renewal Order Term”). However, if you purchased through a Reseller you must notify the Reseller of your intent to cancel in accordance with Reseller’s termination and cancellation policies. ZeroFox has no obligation to, and shall not, refund any fees paid by you to a Reseller or other third party.
15. Confidential Information
As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that the Discloser is obligated to keep confidential; (c) Customer Content; and (d) the terms of this Agreement. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
16. Confidentiality and Non-Disclosure
Each Party reserves any and all right, title and interest, including any Intellectual Property Rights, that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement. The Recipient shall protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event shall use less than a reasonable standard of care to protect such Confidential Information. The Recipient shall use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (b) any use or disclosure required by Applicable Law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (c) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
ZEROFOX MAKES NO WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND ZEROFOX SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEAILING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. ALL SERVICES AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WITHOUT LIMITING THE FOREGOING, ZEROFOX MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, USER GUIDE OR ANCILLARY WORKS, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, (b) OPERATE WITHOUT INTERRUPTION, (c) ACHIEVE ANY INTENDED RESULT, (d) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH OUTSIDE MATERIAL OR (e) BE ERROR FREE. ZEROFOX ASSUMES NO LIABILITY OR RESPONSIBILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM USE OF THE SERVICES.
18. Term; Survival
Unless terminated early in accordance with this Agreement, the term of this Agreement will continue through the expiration or earlier termination of the last Order to be in effect. The provisions set forth in the following Sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 8, 10, 11, 15 through 22, and 25 through 31.
19. Early Termination
ZeroFox may terminate any Order upon written notice to Customer, and ZeroFox’s sole obligation in such case will be to refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable Order for the ZFE Services on the basis of the remaining portion of the current Order Term. In addition, ZeroFox may terminate this Agreement and all Orders, effective on written notice to Customer and without refund, if Customer breaches this Agreement.
20. Effect of Termination
Upon expiration or earlier termination of an Order: (a) all rights granted to Customer with respect to Services under such Order will terminate effective as of the effective date of termination; (b) ZeroFox will have no obligation to provide Services to Customer after the effective date of the termination; and (c) Customer will pay to ZeroFox any amounts payable for Customer’s use of Services through the effective date of the termination, together with all other amounts in accordance with the Order and Section 12. Except to the extent otherwise required by Applicable Law, upon termination, ZeroFox shall have the right to delete all Customer Content and Source Content collected or discovered during the course of providing the Services in accordance with ZeroFox’s deletion policies and procedures and Customer expressly consents to such deletion.
21. Indemnification by Customer
Customer agrees to defend, indemnify and hold harmless ZeroFox, its Affiliates and their employees, agents, contractors, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to any claim, suit, action or proceeding by a third party arising out of or relating to Customer Content or any use of the Services.
22. Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (a) IN NO EVENT SHALL ZEROFOX, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (b) IN NO EVENT SHALL ZEROFOX’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO ZEROFOX BY CUSTOMER UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY (THE “CAP”). THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION, INCLUDING THE CAP, APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF ZEROFOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
23. Hosting and Other Ordinary Course Providers
In the ordinary course of its business, ZeroFox uses third-party service providers to support the provision of the Services generally, i.e., not specifically for Customer (collectively, “Ordinary Course Providers”). For example, ZeroFox currently uses Amazon Web Services in the United States as a hosting provider for the ZFE Services. In addition, ZeroFox may provide Services through one or more Affiliates. ZeroFox reserves the right to engage and substitute Ordinary Course Providers and Affiliates as it deems appropriate, but shall remain responsible to Customer for the provision of the Services and the actions and omissions of its Ordinary Course Providers and Affiliates undertaken in connection with this Agreement. For clarity, providers of Source Platforms and other Outside Material shall not be deemed Ordinary Course Providers for any purpose under this Agreement.
24. Force Majeure
ZeroFox shall not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency.
25. Independent Parties; No Third Party Beneficiaries
The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Customer may not assign this Agreement without ZeroFox’s prior written consent, and any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
27. Anti-Corruption and Export Compliance
Customer shall, in connection with this Agreement: (a) comply with Applicable Laws relating to anti-bribery and anti-corruption, which may include the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010; (b) comply with Applicable Laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”); and (c) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.
28. U.S. Government Customers
The Services, User Guide and Ancillary Works are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services and those materials. If Customer is using Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer must immediately discontinue use of the Services. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
29. Governing Law; Venue
The parties agree that both the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (“UCITA”) are specifically excluded from application to this Agreement. Except to the extent the issue arising under this Agreement is governed by United States federal law, this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Maryland, without giving effect to the choice of law rules of that State (and without application of UCITA). Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in Baltimore, Maryland, USA, and the Parties expressly consent to personal jurisdiction and venue in those courts.
Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (a) one business day after being sent by overnight courier to the physical address on the Order; (b) three business days after being sent by registered mail, return receipt requested, to the physical address on the Order; or (c) one business day after being sent by email to (i) in the case of Customer, the email address for Customer on the Order or (ii) in the case of ZeroFox, to [email protected] Either Party may change its address(es) for notice by providing notice to the other in accordance with this Section.
Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section 32.
“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party; “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“Applicable Laws” means any and all governmental laws, rules, regulations or orders that are applicable to a particular Party’s performance under this Agreement.
“Customer Content” means information, data and content originating with Customer that Customer (a) submits to the ZFE Services, including Customer-specific configurations and rules, or (b) provides to ZeroFox for the provision of Support Services.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Term” means, with respect to each Order, the initial subscription term for the ZFE Services specified in the applicable Order and all Renewal Order Terms, if any.
“Order” means, as applicable: (a) an online order for Services pursuant to this Agreement completed and submitted by you and accepted by ZeroFox, (b) a written order for Services pursuant to this Agreement entered into by you and ZeroFox, or (c) if Customer has purchased through a Reseller, a written order for Services placed by the Reseller with ZeroFox for Customer.
“Party” means each of ZeroFox and Customer.
“Personal Information” means information relating to an identified or identifiable natural person, such as name and online identifier, that is protected by Applicable Laws with respect to privacy where the individual resides (“Data Protection Law”).
“Sensitive Information” means Personal Information that is subject to specific or heightened requirements under Applicable Law or industry standards, such as government-issued identification numbers, protected health information under U.S. Health Insurance Portability and Accountability Act, nonpublic personal information under the U.S. Gramm-Leach-Bliley Act, cardholder data under the PCI Data Security Standard, and special categories of personal data and personal data relating to criminal offenses under the EU General Data Protection Regulation.
“Service Parameters” means criteria with respect to Services specified in the associated Order and User Guide, such as (a) numbers of business brands, social media accounts or domains eligible for protection through the ZFE Services, (b) Source Platforms and types of Source Content supported under the purchased subscription, and (c) the number of social or web Takedown Requests available.
“Services” means, collectively, the ZFE Services and Support Services.
“Source Content” means data, content or other material available from a Source Platform.
“Source Platform” means an app, site or platform hosted by a third party (or Customer) that allows its users to share and store data, content and other material, such as sites for social networking and microblogging and sites that support blogs, reviews, surveys and comments. Depending on the applicable Service Parameters, Source Platforms could include, for example, Facebook and Instagram.
“Support Services” means implementation, configuration, training, support, managed security, Takedown Requests and other consulting services purchased by Customer under an Order.
“Takedown Request” means a request submitted by ZeroFox to a Source Platform or other online service provider on Customer’s behalf to remove data, content or other material that violates Applicable Law, infringes Intellectual Property Rights or otherwise violates applicable Outside ToS.
“User Guide” means ZeroFox’s standard user guide for the ZFE Services.
“ZFE Services” means ZeroFox’s cloud-hosted social media and digital risk protection software-as-a-service solutions. The term ZFE Services does not include Source Platforms or other Outside Material.
33. Changes to this Agreement
ZeroFox may update or modify this Agreement from time to time. If a revision meaningfully reduces Customer’s rights, ZeroFox will use reasonable efforts to notify Customer (by, for example, sending an email to the billing contact you designate in the applicable Order or by posting through the Subscription Service). If ZeroFox modifies the Agreement during an Order Term, the modified version will be effective immediately upon the start of the next Renewal Order Term. In this case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.