1. Access. Access to Search Ads is provided at Apple's sole discretion and is available only to a Content Provider that has one or more valid agreements with Apple or Apple affiliates relating to a Content Provider whose materials are offered on Apple software applications (e.g., App Store) or other persons or entities as determined by Apple in its sole discretion.
2. System Requirements. Use of Search Ads requires compatible hardware, internet and/or mobile access, certain software, and may require obtaining updates or upgrades from time to time. Fees may apply to Content Provider’s system requirements. Because use of Search Ads involves hardware, software, and internet and/or mobile access, Your ability to use Search Ads may be affected by the performance of these factors. High-speed internet and/or mobile access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are Your responsibility.
3. Other Agreements. Any other agreements in effect between Apple and You (collectively, the "Other Agreements") are separate from these Terms of Service. These Terms of Service will in no event be deemed to be the terms of the Other Agreements and vice versa. No breach of these Terms of Service will constitute a breach of the Other Agreements and vice versa.
5. Account and Password. As a registered user of Search Ads, You must establish an account ("Account"). You are solely responsible for maintaining the confidentiality and security of Your Account. You may not reveal Your Account information to anyone else, allow anyone to use Your Account, or use anyone else's Account without authorization. You are entirely responsible for all activities that occur on or through Your Account, and You agree to immediately notify Apple of any unauthorized use of Your Account or any other breach of security. Apple shall not be responsible for any losses arising out of the unauthorized or other improper use of Your Account.
6. Advertising Services.
a. Overview. Upon acceptance of these Terms of Service, You may use Search Ads to set up, manage and pay Apple for advertising campaigns ("Campaigns") in which Apple will deliver advertising content ("Ad Content") to users of Apple software applications and Apple devices (the "Properties") (collectively, the "Services").
b. Targeting. You understand and agree that Ad Content may be delivered to all Properties authorized by Apple to display Ad Content, subject to Your selection of (I) ad creative, (II) ad trafficking and/or targeting decisions (e.g., keywords), (III) properties that the Ad Content may direct viewers (e.g., app downloads, URLs, landing pages), and (IV) the related URLs and redirects and the services and products advertised on such URLs and redirects (collectively, "Targeting"), for which You are solely responsible, and You authorize and consent to all Targeting deliveries. Apple and its affiliates may make available to You certain optional Services to assist You with the selection and generation of Targeting. You are not required to authorize use of these optional Targeting features and, as applicable, may opt-in or opt-out of usage of these features, but if You use these features then You will be solely responsible for the Targeting. Targeting services are provided and may be modified, suspended or terminated at Apple’s sole discretion.
c. Beta, Ad Experiments, Promotions. You acknowledge that Apple or its affiliates may participate in "beta," "ad experiments" or promotion program features. You may not disclose any information regarding such program features or the terms or existence of any non-public feature.
d. Advertiser Data. Some features on Search Ads allow You to provide information about Your customers, products, and services to Apple ("Advertiser Data") in order to use Targeting. Search Ads may use Your Advertiser Data for the sole purpose of fulfilling Your targeting request. You understand and agree that You are solely responsible for the security and confidentiality of Your Advertiser Data (subject to the Apple Warranty herein), that You will only use the Advertiser Data via the Services for lawful, permitted purposes and that You will remove the Advertiser Data if You no longer intend to use such data in connection with a Campaign.
e. Right to Reject Ad Content. Apple reserves the right to reject or cancel any Ad Content, Campaign or Targeting at any time, for any reason whatsoever (including belief by Apple that placement of Ad Content may subject Apple to criminal or civil liability or is adverse to Apple's business interests). You also understand and agree that some Content Provider or materials owned by the Content Provider or advertiser products and/or services may not be eligible for promotion through a Campaign set up on Search Ads. The fact that Apple has not rejected any Ad Content shall not in any way waive, reduce, limit or otherwise affect Your responsibilities and obligations under these Terms of Service.
f. Limited License to Ad Content. You hereby grant to Apple a non-exclusive, royalty-free, worldwide, fully paid license to store, use, reproduce and display the Ad Content (which shall be deemed to include all content, including text, audio, video, images, deliverables, digital files, web pages, trademarks, brand features or any other intellectual property contained therein or accessible therefrom) for purposes of delivering the Services and as expressly permitted hereunder.
g. Content Provider Warranty. You warrant that: (I) You have full power to enter into and carry out Your obligations under these Terms of Service, and upon Apple's request, You shall immediately demonstrate such power and/or authorization to Apple's satisfaction, and understand and acknowledge that Your failure to do so will be deemed a material breach of these Terms of Service; (II) You hold the necessary rights to permit all uses of the Ad Content by Apple specified hereunder; (III) You hold all necessary rights, permissions, and consents to use the Advertiser Data and to permit all uses of the Advertiser Data by Apple as part of the Services and have bound to these Terms of Service third parties, if any, for which You advertise in connection with these Terms of Service; (IV) You have complied with all applicable laws, regulations, and applicable guidelines in connection with the collection and use of the Advertiser Data; (V) You will remove any Advertiser Data if and to the extent You no longer have all necessary rights, permissions, or consents to use such data; (VI) You shall not, and shall not authorize any party to, generate automated, fraudulent or otherwise invalid clicks, impressions or other actions; (VIII) You will not knowingly breach or circumvent any program security measure; and (VIII) none of the Ad Content will: (A) infringe on any third party's copyright, patent, trademark, trade secret or any other intellectual property or proprietary rights; (B) violate any law, statute, ordinance or regulation, including, without limitation, the laws and regulations governing export control; (C) be defamatory or trade libelous; (D) be pornographic or obscene; or (E) contain malware, spyware, viruses, Trojan horses, worms, time bombs, ransomware or other similar harmful or deleterious programming routines.
h. Apple Warranty. Apple represents and warrants that: (I) it has full power to enter into and carry out its obligations under these Terms of Service; and (II) the Services shall be completed in a professional manner. Your sole remedy for any breach of the foregoing warranties is set forth in Section 8(e) of these Terms of Services.
i. Payment for Services.
I. As consideration for the Services, You agree to pay Apple, and agree that Apple may charge Your payment method, for the fees for any Campaign that You purchase as set forth in Search Ads, net of any discounts or promotions offered to You by Apple, and any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with the Services or Your Account. You are responsible for the timely payment of all fees and for providing Apple with a valid payment method for all fees. You agree that Apple may charge Your payment method at any time after any portion of the Services are actually delivered; provided that if Apple elects to offer You credit, Apple will invoice You based on actual delivery during the applicable invoice period, with payment due net 45 days from the invoice date. Late payments shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, whichever is less). All payment and reporting related to the Services will be denominated in the currency that You select within the Search Ads platform.
II. Your use of the Services requires the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS, AND THAT YOU ARE AUTHORIZED TO ENTER INTO SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON SEARCH ADS. Apple reserves the right to close Your Account or, unless otherwise prohibited by the Other Agreements, any other Apple account and request an alternative form of payment if a payment method is fraudulently obtained or used on Search Ads. In order to access and retain Your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.
III. You are responsible to pay all applicable taxes or levies imposed by any government entity, including, without limitation, withholding, sales, use, goods, and services ("GST"), and value added tax, in connection with Apple's performance of the Services other than taxes based on Apple's net income from performing the Services.
(a) If you are registered, or required to be registered, for GST in Australia, You agree that You will pay any GST that is payable on the Services under Division 83 of the A New Tax System (Goods and Services Tax) Act 1999. You further agree that any payments to Apple will not be reduced by any withholding or similar taxes.
(b) If you are considered a New Zealand resident, or if your business operates within New Zealand jurisdiction, You hereby represent that You are registered for GST in New Zealand under the Goods and Services Tax Act 1985 and agree that you will pay any GST that is payable on the Services herein. You acknowledge and agree that Apple may request at any time, upon which time you agree to provide an information necessary to confirm Your registration for GST in New Zealand, including, but not limited to, Your GST registration number or Your New Zealand business number. You further agree that any payments to Apple will not be reduced by any withholding or similar taxes.
(c) If Your principal office or headquarters is located in Japan, You shall reverse charge any Japanese consumption tax that is payable on the Services. Apple, in its discretion, may invoice You for any applicable taxes or levies (except for GST that is subject to the reverse charge mechanism under Division 83 of the A New Tax System (Goods and Services Tax) Act 1999, or Japanese consumption tax that shall be reverse charged by You, if Your principal office or headquarters is located in Japan), and You agree to pay any such taxes or levies. You further agree that any payments to Apple will not be reduced by any withholding or similar taxes.
(d) Apple, in its discretion, may invoice You for any applicable taxes or levies, and You agree to pay any such taxes or levies. You agree that any payments to Apple will not be reduced by any withholding or similar taxes.
IV. You agree to notify Apple via email of any invoice dispute within thirty (30) days from the date of receipt of the invoice (the "Invoice Dispute Period"). Invoice disputes shall be emailed to firstname.lastname@example.org and shall include detailed reason(s) for the dispute. To the fullest extent permitted by law, you waive all claims relating to the Services and fees unless claimed or asserted within the Invoice Dispute Period. For the avoidance of doubt, if you fail to dispute an invoice within the Invoice Dispute Period, you acknowledge that the invoice will be considered payable in full and "as is." In the event that you contract with a third party to process invoices on your behalf, you will use commercially reasonable efforts to provide such third party the requisite information and/or authorization to facilitate timely payment to Apple. Furthermore, you agree that your obligation to make timely payments and/or to notify Apple of invoice disputes in a timely manner will neither be lessened nor excused due to the actions of such third party.
V. To the fullest extent permitted by law, You waive all claims relating to the Services and fees unless claimed or asserted within sixty (60) days after the completion of the Campaign associated with such Services or fees.
VI. You acknowledge and agree that fees are based solely on the Reporting Metrics (as defined herein) associated with a Campaign. To the fullest extent permitted by law, refunds (if any) are at Apple's sole discretion, and only in accordance with Section 8(e) of these Terms of Service.
VII. At Apple's option, Apple may elect to offer You credit. In order to utilize the credit option, You will be required to submit a completed credit application to determine eligibility for credit hereunder. Apple may extend, revise or revoke credit at any time. Apple is not obligated to deliver any Ad Content in excess of any credit limit and/or budget order.
VIII. Invoices shall be based on actual delivery during a calendar month billing cycle and number of invoices may vary per Campaign. For the avoidance of doubt, Apple shall generate invoices using Apple’s Results Metrics as the sole binding measurement of Apple's performance on delivery of any Services governed hereunder.
IX. In the event that You fail to make timely payment or otherwise breach these Terms of Service or any warranties set forth herein, You will be responsible for all expenses (including attorneys' fees and costs) incurred by Apple in collecting such amounts. Apple reserves the right to suspend performance of its obligations under these Terms of Service and/or restrict Your access to Search Ads in the event that You fail to make timely payment hereunder or otherwise breach these Terms of Service or any warranties set forth herein, effective immediately upon notice from Apple.
X. You acknowledge and agree that any payment method information that You provide to Apple may be shared by Apple with companies who work on Apple's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Apple and servicing Your account. You agree that Apple has the right, without liability to You, to disclose any payment method information to law enforcement authorities, government officials, and/or a third party, as Apple believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms of Service (including, without limitation, Apple's right to cooperate with any legal process relating to Your use of Search Ads and/or a third-party claim that Your use of Search Ads is unlawful and/or infringes such third party's rights).
j. Marketing Permission. You agree that Apple may send You marketing communications regarding the Services offered by Search Ads. Apple may request, and You agree to not unreasonably deny, permission to use the Ad Content, including all trademarks and logos included in the Ad Content, for promotional purposes in Apple marketing materials. Apple must approve in writing any press release or announcement that refers or relates to these Terms of Service, the Ad Content or Your relationship with Apple.
k. Apple Marks. You shall not use Apple's trademarks, service marks, trade names, logos or other commercial or product designations for any purpose without first obtaining Apple's prior written consent.
l. Reporting Metrics. You acknowledge that reporting metrics provided by Apple (the "Reporting Metrics") are the definite and binding measurements of Apple's performance on delivery of the Services, and that no other reporting metrics, third party or otherwise, shall be permitted in connection with the Services. Apple makes no guarantees with respect to Reporting Metrics of any kind, including, without limitation, impressions, conversions, and taps, in connection with the Services.
n. Compliance with Specifications, Content Guidelines and Policy Guidelines. You agree to comply with the specifications provided by Apple to enable proper display of Ad Content in connection with the Services, including, without limitation, technical specifications and policy and content guidelines (each as may be amended from time to time by Apple). You are solely responsible for the proper content, format, functioning, and keeping up-to-date Ad Content submitted by You or otherwise used in connection with the Services. You acknowledge that changes made to Your App Store submission (e.g., price, description, etc.) may impact your Ad Content and that such changes in the App Store can take up to sixteen (16) hours to be reflected in Search Ads. You are responsible for all costs and expenses incurred in connection with development and certification of Your Ad Content.
o. Relationship of the Parties. These Terms of Service create an independent contractor relationship between You and Apple. No employment relationship, partnership or joint venture is created by these Terms of Service, and neither Apple nor You shall hold itself out as the agent of the other, except as set forth in these Terms of Service.
p. Confidentiality. You agree that the terms and conditions of these Terms of Service, the nature and fact of Your business relationship with Apple, Apple's provision of, and the results from the use of, the Services, and all discussions related thereto will be considered confidential information ("Confidential Information"). In addition, any nonpublic information which one party ("Discloser") discloses to the other party ("Recipient") in the course of their communications solely regarding the Services set forth in these Terms of Service will be considered Confidential Information, including, without limitation, Apple intellectual property, including code, tools and technology used in connection with Search Ads, the Properties and the Services (the "Apple IP"), Reporting Metrics, nonpublic product plans, marketing plans, whether such information is clearly designated as "Confidential" in writing, or at the time of disclosure, if disclosed orally or visually, a reasonable person would understand the information to be confidential. Notwithstanding the foregoing, Confidential Information shall not include information that: (I) is now or subsequently becomes generally available to the public through no fault or breach on the part of the Recipient; (II) Recipient can demonstrate to have had rightfully in its possession prior to disclosure to Recipient by Discloser; (III) is independently developed by Recipient without use of any Confidential Information; and (IV) Recipient rightfully obtains from a third party who has the right to transfer or disclose it to Recipient without limitation. In addition, Confidential Information shall not include any free and open source software ("FOSS") included in Search Ads and accompanied by licensing terms that do not impose confidentiality obligations on the use or disclosure of such FOSS. Nothing in these Terms of Service will obligate either party to disclose any Confidential Information.
q. Obligations Regarding Confidential Information. Recipient agrees to protect Discloser's Confidential Information, using at least the same degree of care that it uses to protect its own confidential and proprietary information of similar importance, but no less than a reasonable degree of care. Recipient agrees to use Discloser's Confidential Information for the sole purpose of fulfilling its obligations under these Terms of Service and under no circumstances for its own or any third party's benefit. Recipient will not disclose, publish or disseminate Confidential Information to anyone other than those employees and consultants who have a need to know in order to accomplish such purpose and who are bound by these Terms of Service, which prohibits unauthorized disclosure or use of Confidential Information. Recipient will be responsible for any violation of the terms of this section by its employees or consultants. Recipient may disclose Confidential Information to the extent required by law, provided Recipient makes reasonable efforts to give Discloser notice of such requirement prior to such disclosure and takes reasonable steps to obtain protective treatment of the Confidential Information.
r. Ownership. Content Provider retains all right, title and interest, including all intellectual property rights, in any Ad Content submitted by You, provided that the Ad Content does not incorporate any Apple Confidential Information or Apple IP. Apple retains all right, title and interest in the Apple IP.
s. Personal Data Privacy and Security.
7. Intellectual Property.
a. Acknowledgement of Ownership. You agree that Search Ads contains proprietary information and material that is owned by Apple and/or its licensors, and is protected by applicable intellectual property and other laws and that You will not use such proprietary information or materials in any way whatsoever except for use of Search Ads in compliance with these Terms of Service. No portion of Search Ads may be reproduced in any form or by any means.
b. Copyrights. All copyrights in and to Search Ads are owned by Apple and/or its licensors.
c. Trademarks. Apple, the Apple logo, App Store, iTunes, Search Ads and other Apple trademarks, service marks, graphics, and logos used in connection with Search Ads are trademarks or registered trademarks of Apple Inc. in the U.S. and/or other countries. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
8. Disclaimer of Warranties; Limitation of Liability.
a. APPLE DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF SEARCH ADS WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME APPLE MAY REMOVE SEARCH ADS (OR PARTICULAR PRODUCTS OR SERVICES THEREIN) FOR INDEFINITE PERIODS OF TIME, OR CEASE TO OFFER SEARCH ADS IN ITS ENTIRETY, AT ANY TIME, WITHOUT NOTICE TO YOU.
b. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, SEARCH ADS IS AT YOUR SOLE RISK. SEARCH ADS AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH SEARCH ADS ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. YOU UNDERSTAND AND AGREE THAT PRICING FOR THE SERVICES IS BASED ON AN AUCTION MODEL, WHICH MAY VARY BASED ON NUMEROUS FACTORS, INCLUDING, WITHOUT LIMITATION, PROPRIETARY ALGORITHMS USED BY APPLE.
c. IN NO CASE SHALL APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF SEARCH ADS OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF SEARCH ADS, INCLUDING, WITHOUT LIMITATION, ANY ERRORS OR OMISSIONS IN ANY PRODUCT OR SERVICE, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY PRODUCT OR SERVICE POSTED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA SEARCH ADS, EVEN IF ADVISED OF THEIR POSSIBILITY.
d. APPLE DOES NOT REPRESENT OR GUARANTEE THAT SEARCH ADS WILL BE FREE FROM NETWORK FAILURES, LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION AND APPLE DISCLAIMS ANY LIABILITY RELATING THERETO.
e. IN THE EVENT APPLE FAILS TO DELIVER YOUR CAMPAIGN IN ANY RESPECT, THE SOLE LIABILITY OF APPLE TO YOU AND YOUR SOLE REMEDY SHALL BE LIMITED TO EXTENSION OF THE CAMPAIGN UNTIL THE CONTRACTED METRICS ARE DELIVERED. NOTWITHSTANDING THE ABOVE, APPLE CANNOT ASSURE THAT ANY AUCTION-BASED ADS WILL BE DELIVERED.
9. Indemnity. BY USING SEARCH ADS, YOU AGREE TO INDEMNIFY AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR BREACH OF THESE TERMS OF SERVICE, ANY REPRESENTATIONS OR WARRANTIES MADE BY YOU HEREIN, OR YOUR OTHER IMPROPER, UNAUTHORIZED OR UNLAWFUL USE OF SEARCH ADS, INCLUDING, WITHOUT LIMITATION, ANY ALLEGATION THAT ANY AD CONTENT OR ADVERTISER DATA DISPLAYED ON OR THROUGH OR DELIVERED TO A PROPERTY (I) MISAPPROPRIATED, VIOLATED OR INFRINGED ANY THIRD PARTY'S PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, MASK WORK OR ANY OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT; (II) DEFAMED, BREACHED THE CONFIDENTIALITY OR VIOLATED THE PRIVACY OF ANOTHER; (III) CONSTITUTED FALSE, DECEPTIVE, OR UNFAIR ADVERTISING OR SALES PRACTICES; OR (IV) FAILED TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE OR LOCAL LAW OR REGULATION.
10. Notices. Apple may send You notice with respect to Search Ads by sending an email message to the email address listed in Your Account contact information, by sending a letter via postal mail to the contact address listed in Your Account contact information, or by a posting on the Search Ads platform. Notices shall become effective immediately. All notices to Apple relating to these Terms of Service will be deemed given (a) when delivered personally, (b) three business days after having been sent by commercial overnight carrier with written proof of delivery, and (c) five business days after having been sent by first class or certified mail, postage prepaid, to this Apple address: Advertising Platforms, Apple Inc., 1 Infinite Loop, Mail Stop 319-5MP, Cupertino, CA 95014, Attention Advertising Platforms Legal Counsel. A copy of such notice shall also be provided to Your primary Search Ads contact, if any.
11. Modification or Amendment of Terms of Service. Apple reserves the right, at its discretion, to modify or amend these Terms of Service upon notice to You in accordance with Section 10 above. Such modifications or amendments are effective immediately upon notice and incorporated into these Terms of Service, and Your continued use of Search Ads shall be deemed acceptance thereof.
12. Termination. If You fail, or Apple suspects that You have failed, to comply with any of the provisions of this Agreement, Apple, at its sole discretion, without notice to You may: (I) terminate this Agreement and/or Your Account, and You will remain liable for all amounts due under Your Account up to and including the date of termination; (II) terminate the license to the software; and/or (III) preclude access to the Services (or any part thereof).
Apple reserves the right to modify, suspend, or discontinue Search Ads (or any part or feature thereof) at any time, with or without advance notice to You, and Apple will not be liable to You or to any third party should it exercise such rights.
13. Governing Law. You expressly agree that the laws of the State of California, excluding its conflicts of law rules, govern these Terms of Service and Your use of Search Ads, and that the exclusive jurisdiction for any proceeding relating in any way to Your use of Search Ads will be the Northern District of California. You hereby waive the right to object to the foregoing choice of law, personal jurisdiction or venue.
14. These Terms of Service constitute the entire agreement between You and Apple and govern Your use of Search Ads, superseding any prior agreements between You and Apple. You may not assign these Terms of Service, including, without limitation, by operation of law or merger, without Apple's prior written approval, and any attempt to assign these Terms of Service without such prior written approval is void. If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Apple's failure to enforce any right or provisions in these Terms of Service will not constitute a waiver of such provision, or any other provision of these Terms of Service. Apple will not be responsible for failures to fulfill any obligations due to causes beyond its control.