Reseller and Distributor Agreement

We are Fusion Signage Pty Ltd ACN 644 714 081 (Fusion Signage P/L, we, our, us and other similar terms). When we refer to you (you, your and other similar terms) we are referring to the entity who enters into this Agreement with us which authorises you to sell EULAs and access to our digital signage content management system, known as Fusion Signage (Fusion Signage).

This Agreement outlines the terms and conditions associated with your use and resale of a Fusion Signage EULA. It is your obligation to ensure that you have read, understood and agreed to the most recent terms available at www.fusionsignage.com.au (Website).

2.1 Accepting this Agreement

If you are engaged as a Direct Reseller, you are making an offer to us to become a Reseller and access the reseller facilities of Fusion Signage.

If you have been engaged by one of our Distribution Partner’s as a Reseller (Distribution Agent) then you acknowledge and agree that your use of Fusion Signage is contingent on your compliance with these terms and your ongoing relationship with our Distribution Partner.

You agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using Fusion Signage or reselling EULAs.

2.2 About this Agreement

Throughout the Agreement we use some capitalised words and phrases, like the word Agreement. These capitalised words and phrases are defined throughout the Agreement or in clause 18.1. They aid to clarify the terms and conditions. Please feel free to email us at contact@fusionsignage.com.au if you have any questions.

4.1 Appointment of Direct Resellers

This clause 4.1 does not apply to Distribution Agents.

Upon accepting this Agreement, we appoint you as our authorised Reseller on a non-exclusive basis, solely for the purpose of reselling EULAs to End Users on our behalf (“Authorized Scope”) and subject to the terms and conditions of this Agreement.

Any prior reseller arrangement between the parties is hereby mutually terminated and replaced with these terms.

4.2 Authority of Distribution Agents

This clause 4.2 does not apply to Direct Resellers.

Upon accepting this Agreement and for the term of your agreement with our Distribution Partner, you are authorised to resell EULAs to End Users on our behalf (“Authorized Scope”), subject to the terms and conditions of this Agreement and your agreement with the Distribution Partner.

You acknowledge and agree that to the extent of any inconsistency between this Agreement and your agreement with the Distribution Partner, this Agreement applies to the extent of that inconsistency.

Any prior arrangement between the parties is hereby mutually terminated and replaced with these terms.

4.3 Exclusions

Your authority under this Agreement is limited to the Authorized Scope. All other services you provide to End Users are not provided by us or under our authority. They must be provided pursuant to a contract between you (or the Distribution Partner where applicable) and the End User, and not on our behalf. You must not:

(a) sell Hardware on our behalf;

(b) implement, install and configure Hardware and Fusion Signage on our behalf;

(d) provide any other services on our behalf, that is beyond the Authorized Scope or in breach of the terms and conditions of this Agreement.

Nothing in this clause 4.3 prohibits you from providing the aforementioned goods or services, on your own behalf. Where you do, you acknowledge and agree that those goods and services are subject to a contract between yourself and the End User and not us.

5.1 Resale obligations

When engaging with End User’s or reselling EULAs, you must:

(a) advise End Users that use of Fusion Signage is subject to the terms and conditions of the EULA;

(b) advise End Users that they will not be able to access Fusion Signage unless they agree to the EULA;

(d) refund (or if you are a Distribution Agent, cause to be refunded) any amount paid by the End User for access to Fusion Signage if we or the End User do not accept the terms of the EULA;

(e) only advertise or promote Fusion Signage in accordance with any Brand Manual or advertising material which we provide;

(f) comply with our reasonable instructions if we instruct you to remove or amend any advertising or marketing which is inconsistent with our Brand Manual.

5.2 Prohibited Conduct

You must not:

(a) grant an End User access to Fusion Signage unless they agree to the EULA;

(b) purport to have authority to act on our behalf beyond the Authorized Scope;

(d) access End User data or make changes to their system unless you have the End Users express authority and then, only in accordance with that authority;

(e) use language or conduct yourself when reselling, marketing or advertising Fusion Signage, which might tend to offend, mislead, confuse or deceive End Users or any other person;

(f) alter, remove or tamper with the trademarks or other means of identification of Fusion Signage;

(g) make any offers, representations or give any warranties regarding Fusion Signage on our behalf, other than those expressly provided under the EULA;

(h) misrepresent any features or benefits of Fusion Signage;

(i) be a party whether directly or indirectly to the doing of any act, matter, omission or thing whereby the goodwill of our business and/or the Intellectual Property relating to Fusion Signage may be endangered, jeopardised or prejudicially affected in any manner whatsoever;

(j) gain access or attempt to gain access to parts of Fusion Signage that you are not authorised or entitled to access;

(k) in any way tamper with, hinder or modify Fusion Signage;

(l) use Fusion Signage directly or indirectly for any activity or transmit any information or material unlawfully, or which is obscene, indecent, uses offensive language, defames, abuses, harasses, stalks, threatens, menaces or offends any person or is likely to negatively impact our reputation or that of any End User;

(m) knowingly transmit any viruses or other disabling features to or via Fusion Signage;

(n) intentionally disable or circumvent any protection or disabling mechanism of Fusion Signage;

(o) install or store any software applications, code or scripts on or through Fusion Signage;

(p) use Fusion Signage in any way which could be reasonably expected to interfere with or damage our systems, any other operator's systems, or another user's enjoyment of Fusion Signage;

(q) use Fusion Signage in connection with a breach of any law in Australia or the jurisdiction in which you operate; or

(r) attempt, facilitate or assist another person to do any of the above acts.

5.3 End Users and non-exclusivity

(a) The parties acknowledge and agree that:

(i) the End Users of Fusion Signage are free to engage with any software provider, Reseller or Distribution Partner they so choose;

(ii) this Agreement is not exclusive, and you are free to engage with any other provider of software; and

(iii) this Agreement is not exclusive and we are free to engage with any other Reseller or Distribution Partner.

(b) We may refer an End User to an alternate Reseller, Distribution Partner or sell directly to that End User if:

(i) if this Agreement is terminated for any reason;

(ii) you no longer have a relationship with that End User; or

(iii) that End User indicates they do not wish to engage with you.

6.1 Payment for Direct Resellers

This clause 6.1 does not apply to Distribution Agents.

You are free to determine your own resale price(s) for EULAs. For each resale of a EULA made by you to an End User, you must pay us the Reseller Buy Price, in accordance with the Payment Terms.

6.2 Payment for Distribution Agents

This clause 6.2 does not apply to Direct Resellers.

You must determine any resale price of a EULA and remit such payment in accordance with the agreement you have with the Distribution Partner who appointed you.

6.3 Refunds

We do not offer refunds or the right to early termination other than in accordance with the Australian Consumer Law. We are not obligated to provide you, or any Distribution Partner, with a refund simply because you provided a refund to the End User.

7.1 Access

You acknowledge and agree that Fusion Signage will only be accessible using the internet, by users with a valid Account and will not operate without an internet connection.

7.2 Support

Support for Fusion Signage is provided in accordance with the support arrangements made available via our support website at https://support.fusionsignage.com.au/.

You acknowledge and agree, we are not responsible for providing support to End Users beyond the support obligations set out in the EULA.

7.3 Fusion Signage outages and system maintenance

If it is necessary to interrupt your use of Fusion Signage, we will endeavour to provide you with reasonable notice (where possible) of when, and the anticipated duration for which, Fusion Signage will be unavailable.

You acknowledge that access to Fusion Signage may be changed, interrupted or discontinued for many reasons, some of which are beyond our control, and during routine maintenance there may be updates to Fusion Signage which may change the interface and manner in which it functions.

You agree that we are not liable for any loss, foreseeable or not, arising from any temporary interruption to your access to Fusion Signage, planned or not, and any such interruptions will not constitute a breach by us of this Agreement.

8.1 Account

In order to use Fusion Signage and create an Account, you are required to provide Personal Information.

You agree to provide any information reasonably requested by us for the purpose of setting up your Account. You warrant that all of the information you provide is accurate and complete in all respects, you will inform us by updating your Account details whenever any such information changes and you will not provide false or misleading information.

8.2 Account security

Maintaining the security of your Account is important to ensuring your Personal Information, and that data which we process on your behalf, remains safe. We work hard to keep Fusion Signage secure and we ask you to contribute.

You are responsible for the activities undertaken using your Account which occur via Fusion Signage, whether such activities are authorised by you or not.

You must educate your users regarding the importance of safeguarding the security credentials when accessing your Account and ensure that they comply with the terms of this Agreement. We are not liable for any security issues or network breaches that occur as a result of your failure to impose security measures on Hardware or where you allow third parties to access your Account.

8.3 Lawful use of Fusion Signage

You undertake not to upload, store or access any data on or use Fusion Signage if such access or storage would infringe a person’s Intellectual Property right, breach any Privacy Law or breach any other law or applicable code (including any common law, statute, delegated legislation, rule or ordinance of the Commonwealth, or a State or Territory of Australia).

8.4 Right to suspend

We reserve the right to limit or suspend all or part of your access to Fusion Signage and alter your Account information, if in our reasonable opinion:

(a) you are in breach of any material terms of this Agreement, including the provisions of clause 5;

(b) your Account information is incomplete;

(d) we suspect a security breach associated with your Account.

Suspending your Account will not constitute a breach of this Agreement by us.

Certain components or features of Fusion Signage include applications, content and services that are operated by third party service providers (Third Party Services). You acknowledge and agree that, subject to any Non-excludable Conditions, we are:

(a) not responsible for the availability or accuracy of such Third Party Services nor the consequences which arise from such faults;

(b) in no way liable for any data, content or materials made available through such Third Party Services; and

(c) not liable for any damages you incur or allege to incur, either directly or indirectly as a result of your use and/or reliance upon any such Third Party Services.

11.1 Confidentiality

A party will not, without the prior written approval of the other party, disclose the other party's Confidential Information.

Notwithstanding any other provision of this clause 11, a party may disclose the terms of this Agreement to its related companies, solicitors, auditors, insurers and accountants.

Each party will take all reasonable steps to ensure that its employees, agents, and any sub-contractors engaged for the purposes of the Agreement do not make public or disclose the other party's Confidential Information.

A party will not be in breach of this clause 11 in circumstances where it is legally compelled to disclose the other party's Confidential Information.

11.2 Permitted Disclosures

We may disclose information, including, but not limited to, your Personal Information or a transmission made using Fusion Signage, in order to comply with a court order, subpoena, summons, discovery order, warrant, statute, regulation, governmental request, to protect our legal rights, prevent harm to persons, where such disclosure is related to and associated with an End User’s account, is otherwise necessary to the proper operation of Fusion Signage or if you are a Distribution Agent then we may disclose your activities associated with this Agreement to the Distribution Partner who appointed you (Permitted Disclosures).

You acknowledge and agree, we have no obligation to inform you if Permitted Disclosures are made.

The Intellectual Property in Fusion Signage will remain with us, at all times.

You must not do any of the following, assist anyone to do any of the following or permit any person over whom you have effective control to:

(a) create an adaptation or translation of all or part of Fusion Signage in any way;

(b) use Fusion Signage in a manner which may infringe any other persons’ Intellectual Property;

(c) incorporate all or part of Fusion Signage in any other webpage, site, application or other digital or non-digital format;

(d) remove any proprietary notices or labels on Fusion Signage;

(e) use Fusion Signage or any part of it for the purpose of building a competitive product or service; or

(f) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, content, architecture, or algorithms contained in Fusion Signage, other than is reasonably necessary to carry out the Authorized Scope and provide EULAs to End Users.

You must promptly inform us of any infringement or alleged or apparent infringement, of any of our Intellectual Property which you become aware of.

We aim to provide the best possible user experience, however, subject to the Non-excludable Conditions, and to the fullest extent permitted under the law, we make no warranties or guarantees that Fusion Signage is fault free, regarding Fusion Signage’s fitness for any particular purpose which we have not expressed, or regarding your access to, or the results of your access to, Fusion Signage including its correctness, accuracy, timeliness, completeness, reliability or otherwise.

14.1 Implied Conditions

We exclude all conditions, warranties and other terms which might otherwise be implied by any law, regulation, statute, common law or law of equity except any Non-excludable Condition.

14.2 Implied Conditions

Subject to the Non-excludable Conditions, we exclude all other liability for any costs, including consequential losses, suffered or incurred directly or indirectly by you in connection with this Agreement, including:

(a) loss of profits, any pure economic loss or loss of data;

(b) Fusion Signage being inaccessible for any reason;

(d) security vulnerabilities in Fusion Signage or any breach of security that results in unauthorised access to, or corruption of data;

(e) claims or actions brought against us by End Users due to any actions carried out by you beyond the Authorized Scope;

(f) fault or negligence arising from our activities or that of our service providers;

(g) any unauthorised activity in relation to Fusion Signage;

(h) the occurrence of an Event of Force Majeure; or

(i) any act or omission by you, your personnel, your associates or any related body corporate under or in relation to this Agreement.

To the fullest extent possible under the law, we limit our liability for any breach to: in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods, or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods; and in the case of services: the resupply of the services or the payment of the cost of having the services resupplied.

14.3 Indemnity

You indemnify us against all costs suffered or incurred by us, however caused, arising wholly or partially, directly or indirectly, from:

(a) your infringement of any third party Intellectual Property rights;

(b) If you are a Distribution Agent, any contract between you and the Distribution Partner who appointed you;

(d) any action or claim brought against us by an End User, arising from: your actions which were carried out beyond your Authorized Scope; or in breach of this Agreement by you.

A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 15 before commencing any legal proceedings.

If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, within the jurisdiction of the Agreement and, unless otherwise agreed between the parties, using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.

Each party must pay its own internal and legal costs in relation to complying with this clause 15. The mediator’s costs are to be shared equally.

The parties acknowledge and agree this clause 15 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.

16.1 Termination

You may terminate this Agreement with us immediately by making use of any cancellation option made available through your Account or by providing us notice in writing.

We may terminate this Agreement immediately with notice to you if: your Account remains suspended for a period of more than 30 days or if you engage in Prohibited Conduct.

Either party may terminate this Agreement if the other party commits a material breach of this Agreement (including a breach of clause 6.1) and the breach is incapable of being remedied or if the breach is capable of being remedied, the party in breach has failed to remedy the breach within 30 days after the receipt of notice to remedy.

If you are a Distribution Agent, this Agreement terminates immediately:

(a) if the Distribution Partner terminates their agreement with you, except in the case the termination is immediately followed by a reappointment authorising you to remain a Reseller of Fusion signage; or

(b) we terminate our agreement with the Distribution Partner who appointed you.

16.2 Actions upon termination

Upon termination you must immediately stop using Fusion Signage, we reserve the right to permanently erase any data associated with your Account, we revoke your authority as our Reseller and you must stop reselling EULAs and holding yourself out as associated with Fusion Signage P/L in any way.

Assignment – Neither party may assign, encumber, declare a trust over or otherwise create an interest in its rights in this Agreement without the other party’s consent.

Entire Agreement - This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this Agreement and has no further effect.

Governing law - The laws of Queensland govern this Agreement. The parties submit to the exclusive jurisdiction of courts exercising jurisdiction there.

Notices - The parties agree all notices, disclosures and other communications that are provided in accordance with this clause, satisfy any legal requirement that such communications be in writing. Any communication under or in connection with this Agreement:

(a) which we send to you, will be sent to the email address provided to us in your Account and by accepting these terms you give your consent to receive communications from us by email; and

(b) which you send, must be either delivered or posted by prepaid post to the address set out at clause 0 or sent by email to our email address set out at clause 2.2.

Relationship - Nothing in this Agreement is intended to create or be construed as creating a relationship of agency, joint venture or partnership between any of the parties.

Severability - Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change its intended effect.

Variations to this Agreement - We may vary this Agreement (including by varying the Reseller Buy Price) by giving 30 days written notice to you. If you do not accept the terms of the variation you may terminate this Agreement in accordance with clause 16.

18.1 Definitions

Unless the terms and conditions of the Agreement state otherwise, the following expressions used in this Agreement have the following meanings:

Account or Reseller Portal Account means the username and access credentials used when you access Fusion Signage.

Agreement means these terms and conditions and any document incorporated into them by reference.

Authorised Scope:

(a) in the case of Direct Resellers, takes its meaning from clause 4.1; and

(b) in the case of Distribution Agents, takes its meaning from clause 4.2.

Brand Manual means any policy or guideline which we provide from time to time setting out the use of our advertising and marketing materials, trademarks or details of Fusion Signage.

Confidential Information means information that is by its nature confidential, including but not limited to information relating to either party’s personnel, policies, practices, clientele, business strategies, Intellectual Property rights, the system operations associated with Fusion Signage and security credentials. But does not include information already rightfully known to the receiving party at the time of disclosure by the other party or in the public domain other than as a result of a disclosure in breach of its obligations of confidentiality under this Agreement.

Direct Reseller means a Reseller who has been engaged directly through us.

Distribution Agent means a Reseller appointed by a Distribution Partner.

Distribution Partner means a third party, appointed by us who has been granted authority to appoint Resellers as their agents, for the purpose of reselling EULA’s.

Event of Force Majeure means an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, a ransomware attack or other malicious code.

End User means the end-users of Fusion Signage that design, create, manage, display and update their User Content on Screens in their businesses.

EULA means the Fusion Signage terms of use applicable to End Users, that are made available on our Website and at the time the End User signs up to Fusion Signage.

Hardware means the Screens and any other components used to operate Fusion Signage, other than the components of the Fusion Signage system controlled and operated by Fusion Signage P/L.

Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, domain names, circuit layouts, computer code, confidential information, copyright, designs, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.

Non-excludable Condition means any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded.

Payment Terms means the due date specified on our invoice to you for the sale of EULAs.

Personal Information means information or an opinion about an identifiable individual (not a company), whether or not that information or opinion is true or in a material form.

Privacy Law means both the privacy laws in the jurisdiction in which you operate and the Privacy Act 1988 (Cth) incorporating the Australian Privacy Principles.

Privacy Policy means the privacy policy available on our Website as amended by us from time to time.

Prohibited Conduct takes its meaning from clause 5.2.

Reseller means a person authorised to resell EULA’s including both Direct Resellers and Distribution Agents.

Reseller Buy Price means the price quoted by us to you, which is payable by you to us, for each sale of Fusion Signage made by you to an End User.

Screens means an individual component of the Hardware on which the User Content is displayed.

Term takes its meaning from clause 3.1.

Us, we or our means Fusion Signage Pty Ltd ACN 644 714 081.

User Content means content, including, without limitation, text, photos, images, audio, video, code, dynamic content such as time, date, weather, news, or websites and any other materials to be displayed on a Screen.

Website means the website located at https://fusionsignage.com.au/ and any of its subdomains.

You or your takes its meaning from clause 0.

18.2 Interpretation

Unless the terms and conditions of the Agreement explicitly state otherwise, the Agreement will be interpreted as follows:

(a) a reference to a party includes that party's permitted assigns, administrators, successors, executors, legal representatives and any novated party;

(b) unless used for the usual grammatical purpose, inverted commas around a term indicate industry jargon that will be interpreted according to how that term would be understood by an individual with expertise in the relevant industry;

(c) "including", "includes" or any derivation of those words does not limit the matter in question to the things specifically mentioned in the applicable context;

(d) where a term is defined, other grammatical forms of that term will be taken to have the same meaning;

(e) headings are for convenience and will not affect interpretation;

(f) words in the singular will be taken to include the plural and also the opposite;

(g) when any kind of legislative instrument is referenced, the reference will be taken to be that instrument as updated or substituted for by the legislative body; and

(h) a reference to a party's conduct includes omissions as well as acts.

We are Fusion Signage Pty Ltd ACN 644 714 081 (Fusion Signage P/L, we, our, us and other similar terms). When we refer to you (you, your and other similar terms) we are referring to the entity who enters into this Agreement with us which authorises you to, appoint your own Resellers, sell EULAs and access our digital signage content management system, known as Fusion Signage (Fusion Signage).

This Agreement outlines the terms and conditions associated with the appointment of Resellers and your use and resale of a Fusion Signage EULA. It is your obligation to ensure that you have read, understood and agreed to the most recent terms available at www.fusionsignage.com.au (Website).

2.1 Accepting this Agreement

When you:

(a) access Fusion Signage using your Distributor Account;

(b) appoint a Reseller; or

you agree to comply with and be legally bound by the terms and conditions of this Agreement. If you do not agree to these terms, you have no right to continue using Fusion Signage, appoint Resellers or reselling EULAs.

2.2 About this Agreement

4.1 Appointment of Distributors

Upon accepting this Agreement, we appoint you as our authorised Distributor on a non-exclusive basis and we grant you the right to appoint your own agents as Resellers. Your and your Resellers authority extends solely to the purpose of reselling EULAs to End Users on our behalf (“Authorized Scope”) and subject to the terms and conditions of this Agreement.

Any prior distributor or reseller arrangement between the parties is hereby mutually terminated and replaced with these terms.

4.2 Appointment of Resellers

By appointing a Reseller, you acknowledge and agree that you are liable for the actions of your Resellers and that you are solely responsible for collecting the and remitting the Distributor Buy Price to us.

When appointing a Reseller you must provide a copy of, or link to the Reseller Terms and Conditions to the Reseller and must not appoint a Reseller unless they agree to the Reseller Terms and Conditions.

You acknowledge and agree that in the case of an inconsistency between this Agreement or the Reseller Terms and Conditions (Our Terms) and your agreement with the Reseller, Our Terms apply to the extent of any inconsistency.

4.3 Exclusions

Your authority under this Agreement is limited to the Authorized Scope. All other services you or your Resellers provide to End Users are not provided by us or under our authority. They must be provided pursuant to a contract between you (or the Reseller where applicable) and the End User, and not on our behalf. You and your Resellers must not:

(a) sell Hardware on our behalf;

(b) implement, install and configure Hardware and Fusion Signage on our behalf;

(d) provide any other services on our behalf, that is beyond the Authorized Scope or in breach of the terms and conditions of this Agreement.

5.1 Resale obligations

When engaging with End User’s or reselling EULAs, you and your Resellers must:

(a) advise End Users that use of Fusion Signage is subject to the terms and conditions of the EULA;

(b) advise End Users that they will not be able to access Fusion Signage unless they agree to the EULA;

(d) refund (or via your Reseller, cause to be refunded) any amount paid by the End User for access to Fusion Signage if we or the End User do not accept the terms of the EULA;

(e) only advertise or promote Fusion Signage in accordance with any Brand Manual or advertising material which we provide;

(f) comply with our reasonable instructions if we instruct you to remove or amend any advertising or marketing which is inconsistent with our Brand Manual.

5.2 Prohibited Conduct

You and your Resellers must not:

(a) grant an End User access to Fusion Signage unless they agree to the EULA;

(b) purport to have authority to act on our behalf beyond the Authorized Scope;

(d) access End User data or make changes to their system unless you or your Reseller has the End Users express authority and then, only in accordance with that authority;

(e) use language when reselling, marketing or advertising Fusion Signage, which may offend, mislead, confuse or deceive End Users or any other person;