Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and we may have against each other are resolved (see Section 19 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit to claims you have against us to binding arbitration, unless you opt out in accordance with Section 19(f). Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. ACCEPTANCE OF TERMS
KT Intellectual Property Holding Company, LLC, its affiliates, subsidiaries, and partners (collectively, “Pendry,” “we,” “us,” and “our”) provide our service to you, including information about our resorts and communities (collectively, “Properties”) subject to the following Terms of Service (“Terms”). The Terms cover all information, data, and services available at www.pendry.com and any other websites operated by us that link to these Terms (collectively, the “Websites”). Unless explicitly stated otherwise, any new features that augment or enhance the current Websites shall be subject to these Terms. We reserve the right to provide you with operating rules or additional terms that may govern your use of the Websites generally, unique parts of the Websites, or both (“Additional Terms”). Any Additional Terms that we may provide to you are hereby incorporated by reference into these Terms. To the extent any Additional Terms conflict with these Terms, the Additional Terms will control.
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE WEBSITES. BY ACCESSING AND/OR USING THE WEBSITES (OTHER THAN TO READ THESE TERMS FOR THE FIRST TIME) YOU ARE AGREEING TO COMPLY WITH THESE TERMS, WHICH MAY CHANGE FROM TIME TO TIME AND WILL BE DEEMED EFFECTIVE AS SET FORTH IN SECTION 21 BELOW. IF YOU USE THE WEBSITES AFTER CHANGES TO THESE TERMS BECOME EFFECTIVE SUCH USE WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE CHANGES. YOU SHOULD CHECK BACK FREQUENTLY AND REVIEW THESE TERMS REGULARLY SO YOU ARE AWARE OF THE MOST CURRENT RIGHTS AND OBLIGATIONS THAT APPLY TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS OR USE THE WEBSITES.
You agree that these Terms are supported by good and valuable consideration the receipt and sufficiency of which you hereby acknowledge. Such consideration includes, without limitation, your use of the Websites and the materials and information available on the same.
We control the Websites from our offices within the United States of America, and the Websites are intended for use only in the United States of America. We do not represent that the Websites or the materials on this Websites are appropriate or made available for use outside of the United States of America.
2. INFORMATION YOU PROVIDE
We may ask you for certain information in order to provide you with services you request, such as reservations or property information. By providing information on our Websites, such as in conjunction with a request for services, you agree to provide accurate, current and complete information about yourself as prompted (such information being the “User Data”) and maintain and promptly update your User Data to keep it accurate, current and complete. If you provide any information that is inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is inaccurate, not current or incomplete, we may deny you access to areas of the Website or our services, at our sole discretion.
When you provide us with User Data, you may receive certain commercial communications from us related to content found on the Website. You may opt out of receiving these communications at any time by sending an email to [email protected].
4. ACCOUNT PASSWORD AND SECURITY
The Websites may contain features that require registration (“Restricted Areas”). You are not required to register to use the Websites, but may not be able to access some content without registration. At the time of registration for online account access, you will select a Username and Password to be used in conjunction with your account (“Account”). You are responsible for maintaining the confidentiality of your Password, and are fully responsible for all uses of your Password and Account, whether by you or others. You agree to (a) keep your Password confidential and not share them with anyone else; (b) immediately notify Pendry of any unauthorized use of your Password or account or any other breach of security; and (c) use only your Password to access the Websites’ Restricted Areas. Pendry cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
You acknowledge and agree that Pendry is authorized to act on instructions received through use of your Password, and that Pendry may, but is not obligated to, deny access or block any transaction made through use of your Password and Account without prior notice if we believe your Password is being used by someone other than you, or for any other reason.
You acknowledge, consent and agree that Pendry may access, preserve and disclose your Account and User Data and content if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary: (a) to comply with legal process; (b) to enforce the Terms; (c) to respond to claims that any content violates the rights of third parties; (d) to respond to your requests for customer service; or (e) to protect the rights, property, or personal safety of Pendry, its users and the public.
5. NON-COMMERCIAL USE
By using the Websites, you acknowledge and agree that the Websites are for personal use only. You may copy information from the Websites for personal use, such as to view, print, or email the information, but you warrant that you will not, under any other conditions, reproduce, duplicate, copy, sell, trade, resell, modify, distribute, decompile, disassemble, or reverse engineer any portion of the Websites.
6. MODIFICATIONS TO SERVICE
Pendry reserves the right at any time to modify or discontinue, temporarily or permanently, the Websites (or any part thereof), including the Restricted Areas, with or without notice. You agree that Pendry shall not be liable to you or any third party for any modification, suspension or discontinuance of the Websites.
You agree that Pendry may, in its sole and absolute discretion and without notice or liability to you or any third party, immediately and in its sole discretion suspend terminate your access to the Websites or the Restricted Areas. Grounds for such suspension or termination shall include, but not be limited to, (a) breaches or violations of the Terms or other agreements or guidelines, (b) requests by law enforcement or government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification of the Websites (or any part thereof), (e) unexpected technical or security issues or problems, and (f) extended periods of inactivity. Termination of your Account(s) may include (x) removal of access to all offerings within the Websites’ Restricted Areas, (y) at Pendry’s sole discretion, the deletion of all of your Account information and User Data and other content associated with your Account (or any part thereof), and (z) barring further use of the Websites’ Restricted Areas. Any suspension or termination shall not affect your obligations to us under these Terms. The provisions of these Terms which by their nature should survive the suspension or termination of your Account or these Terms shall survive including, but not limited to any rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, arbitration and dispute resolution, and all of the miscellaneous provisions set forth below.
8. DEALINGS WITH ADVERTISERS AND OTHER USERS
Your correspondence or business dealings with, or participation in promotions of, advertisers and other third parties found on or through the Websites, including payment for and delivery of related goods and services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You agree that Pendry shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or third parties on the Websites.
The Websites may provide links to other World Wide Web sites or resources. Because Pendry has no control over such sites and resources, you acknowledge and agree that Pendry is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Pendry shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
You agree to indemnify, defend, and hold Pendry and its subsidiaries, affiliates, officers, employees, agents, co-branders and other partners, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Websites, any transaction resulting from use of the Websites, your connection to the Websites, your violation of these Terms, your submission, posting, or transmission of personally identifiable information or other data to the Websites, and/or your violation of any rights of another.
11. OUR PROPRIETARY RIGHTS
All title, ownership and intellectual property rights in and to the Websites are owned by Pendry or its licensors. You acknowledge and agree that the Websites contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by Pendry, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Websites, in whole or in part.
12. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE WEBSITES IS AT YOUR SOLE RISK. THE WEBSITES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PENDRY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. PENDRY DOES NOT WARRANT THE ACCURACY, CURRENCY, OR COMPLETENESS OF ANY INFORMATION RELATING TO PRICES OR AVAILABILITY.
- PENDRY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO PROVIDE ANY CONTENT OR TO STORE ANY PERSONALIZATION SETTINGS OR USER MATERIALS ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE WEBSITES IS DOWNLOADED AND USED AT YOUR SOLE DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PENDRY OR THROUGH OR FROM THE WEBSITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
13. LIMITATION ON LIABILITY
YOU UNDERSTAND AND AGREE THAT PENDRY SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PENDRY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE WEBSITES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE WEBSITES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITES; OR (v) ANY OTHER MATTER RELATING TO THE WEBSITES.
14. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
15. TRADEMARK INFORMATION
PENDRY, THE PENDRY and KNOW THYSELF are trademarks and service marks (the “Pendry Marks”) owned exclusively by Pendry and its licensors. You agree that you will not display the Pendry Marks, or use the Pendry Marks in any manner, without the prior written permission of Pendry.
16. COPYRIGHT POLICY
We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the Account of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its “Designated Agent”). Our Designated Agent may be reached via email at: [email protected].
If you are a copyright owner (or authorized to act on behalf of the copyright owner) and have a good faith belief that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, such as a specific URL address.
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that Section 512(f) of the Digital Millennium Copyright Act may impose liability for damages on any person who knowingly sends meritless notices of infringement. Please do not make false claims.
Any information or correspondence that you provide to us may be shared with third parties, including the person who provided us with the allegedly infringing material.
Upon receipt of a bona fide infringement notification by the Designated Agent, it is our policy to remove or disable access to the infringing material, notify the user that it has removed or disabled access to the material, and, for repeat offenders, to terminate such user’s access to the service.
If you believe that your content should not have been removed for alleged copyright infringement, you may send our Designated Agent a written counter-notice with the following information:
- Identification of the copyrighted work that was removed, and the location on the Website(s) where it would have been found prior to its removal;
- A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification; and
- Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
17. CHOICE OF LAW
The Terms and the relationship between you and Pendry shall be governed by the laws of the State of California without regard to its conflict of law provisions.
18. NO THIRD PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in these Terms, there shall be no third party beneficiaries to these Terms.
19. ARBITRATION AND DISPUTE RESOLUTION AGREEMENT
PLEASE READ THIS FOLLOWING CLAUSE CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
a) Initial Dispute Resolution. We are available by email at [email protected] to address any concerns you may have regarding your use of the Websites. Most concerns may be quickly resolved in this manner. We and you (each a “party” and together, the “parties”) shall use best efforts to settle any dispute, claim, question or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
b) Agreement to Binding Arbitration. If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 19(a) above, then either party may initiate binding arbitration. All claims arising out of or relating to this agreement (including its formation, performance and breach), the parties’ relationship with each other and/or you use of the Websites shall be finally settled by binding arbitration administered by the American Arbitration Association on a confidential basis in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this agreement, including but not limited to any claim that all or any part of this agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this agreement shall be governed by the Federal Arbitration Act.
THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879. TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST. A REQUEST FOR PAYMENT OF FEES SHOULD BE SUBMITTED TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO THE AAA. IF THE ARBITRATOR FINDS THE ARBITRATION TO BE NON-FRIVOLOUS, WE WILL PAY ALL OF THE ACTUAL FILING AND ARBITRATOR FEES FOR THE ARBITRATION, PROVIDED YOUR CLAIM DOES NOT EXCEED $75,000. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEYS’ FEES IN CERTAIN CIRCUMSTANCES.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAT IN COURT.
c) Class Action and Class Arbitration Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 19(b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
d) Exceptions – Intellectual Property Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief under law or in equity (including without limitation preliminary or other injunctive relief) in any court of competent jurisdiction for disputes or claims arising out of the alleged infringement of either party’s intellectual property rights.
e) Exceptions – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in small claims court for disputes or claims within the scope of that court’s jurisdiction.
f) 30 Day Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in sections 19(b), 19(c), 19(d) and 19(e) by sending written notice of your decision to opt-out to the following address: Pendry Hotels, 1 Ada Parkway, Suite 250, Irvine, CA 92618. The notice must be sent within thirty (30) days of registering to use the Websites, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
g) Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in section 19(b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in State of California, County of Los Angeles (except for small claims court actions which may be brought in the county where you reside, provided that we are subject to jurisdiction there). The parties expressly consent to exclusive jurisdiction in the State of California, County of Los Angeles for any litigation other than small claims court actions. The parties also expressly agree that, to the extent that the arbitration provisions set forth in section 19(b) do not apply, these Terms shall be construed in accordance with the laws of the State of California without regard to its conflict of laws rules that would result in the application of the laws of a jurisdiction other than the State of California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
20. HOTEL AND RESIDENCE DISCLOSURES
All renderings, photos, simulated views, graphic images, drawings and all other information depicted on this Websites are illustrative only and may not reflect the final design of the depicted Pendry property (“Hotel”), any residential projects that may be associated therewith (“Residences”), or the features, furnishings and amenities of the Hotel or Residences.
The final design of certain facilities, including certain Hotels, Residences, spas and other recreational facilities, have not been completed. Accordingly, the possibility exists that changes and/or modifications will be made to the development, design and layout.
Access to and rights to use recreational and hotel amenities within the Hotel and Residence development may be subject to payment or use fees, membership requirements, or other limitations.
The Websites and any content contained therein are not a solicitation for purchasers of Residences in any state where the offering has not been registered or where the offering does not qualify for an exemption from registration.
OBTAIN THE PROPERTY REPORT OR ITS EQUIVALENT, REQUIRED BY FEDERAL AND STATE LAW, AND READ IT BEFORE SIGNING ANYTHING. NO FEDERAL OR STATE AGENCY HAS JUDGED THE MERITS OR VALUE, IF ANY, OF THIS PROPERTY.
WARNING: THE CALIFORNIA DEPARTMENT OF REAL ESTATE HAS NOT EXAMINED THIS OFFERING, INCLUDING, BUT NOT LIMITED TO, THE CONDITION OF TITLE, THE STATUS OF BLANKET LIENS ON THE PROJECT (IF ANY), ARRANGEMENTS TO ASSURE PROJECT COMPLETION, ESCROW PRACTICES, CONTROL OVER PROJECT MANAGEMENT, RACIALLY DISCRIMINATORY PRACTICES (IF ANY), TERMS, CONDITIONS, AND PRICE OF THE OFFER, CONTROL OVER ANNUAL ASSESSMENTS (IF ANY), OR THE AVAILABILITY OF WATER, SERVICES, UTILITIES, OR IMPROVEMENTS. IT MAY BE ADVISABLE FOR YOU TO CONSULT AN ATTORNEY OR OTHER KNOWLEDGEABLE PROFESSIONAL WHO IS FAMILIAR WITH REAL ESTATE AND DEVELOPMENT LAW IN THE COUNTRY WHERE THIS SUBDIVISION IS SITUATED.
21. AMENDMENTS AND CHANGES TO TERMS OF SERVICE
We may modify or change these Terms (including any Additional Terms) in the future. You can identify the date that these Terms were last modified by looking at the effective date at the top of this document. Any modifications to these Terms will take effect upon posting to the Websites. We will notify you of any material changes to these Terms either by sending an email to the email address that you provided to us (if any) and/or by placing a notice on the homepage of the Websites. It is your responsibility to review the Terms and the Websites from time to time for any changes or Additional Terms, and we encourage you to regularly review the current version of these Terms on the Websites. Your access and use of any of the Websites following any modification of these Terms or the provision of Additional Terms will signify your assent to and acceptance of the same. If you object to any subsequent revision to the Terms or to any Additional Terms, immediately discontinue use of the Websites and, if applicable, terminate your Account. We reserve the right in our sole discretion and at any time and for any reason, to discontinue any aspect or feature of the Websites.
22. GENERAL INFORMATION
Entire Agreement. These Terms constitutes the entire agreement between you and Pendry with respect to the Website and supersedes any prior agreements, oral or written, between you and Pendry.
Waiver and Severability of Terms. The failure of Pendry to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Website or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Section Titles. The section titles in the Terms are for convenience only and have no legal or contractual