Coronavirus Be Prepared Contractual Impacts and How To Address Them

Kilpatrick Townsend & Stockton LLP
Contact

The Coronavirus threat has become a major source of news, concern and irritation for businesses, governments and individuals alike. The resulting impacts to business, the global economy and stock markets are readily apparent. Over the past several weeks we have been approached by clients in both the commercial and public (government) contracting arenas to assist them in addressing concerns and contract performance issues associated with Coronavirus and the potential impacts that this epidemic may have on projects and contracts alike. This raises the question of what to do?

WHAT IS A FORCE MAJEURE?

The primary argument that one can use in circumstances such as those surrounding the Coronavirus epidemic arises from the doctrine of force majeure (“fm”). If successful, this doctrine acts to excuse performance or delays in performance while allowing the party claiming a fm to avoid incurring some, if not all, liability for delays or carry costs under circumstances such as the Coronavirus. Black’s Law Dictionary (8th Ed.) defines “force majeure” as “[a]n event or effect that can be neither anticipated nor controlled. The term includes both acts of nature…and acts of people….” This definition provides the basis for explicit force majeure clauses and may also support a common law recognition of such conditions where no such clause exists in the subject contract.

While force majeure clauses are often narrowly construed and read, the circumstances associated with current epidemic seem to fall squarely within the intent of such provisions. Starting in China, a major player in the global supply chain for materials, equipment and supplies, the Coronavirus has spread around the globe. When first discovered, China responded by ordering broad quarantines, closing down ports and precluding free movement among its provinces. This, in turn, has impacted shipping to ports and harbors, export of goods, prevented workers from getting to their work places, and has had a clear ripple effect around the globe. Shipping ports were impacted by the virus, with significant losses of dock workers to the virus. This, in turn, has slowed down manufacturing and delivery of goods and equipment, with no end in sight. Many contractors, vendors and suppliers are dependent upon these manufacturers and suppliers in the impacted regions for those items necessary to perform various contracts. These quarantines carry the real possibility of delay to their contracts.

The foregoing description appears to fall within a number of possible force majeure events, including, acts of god and acts of a government, neither of which are within the control of the contracting parties.

Generally speaking, in order to have a force majeure event (or defense) resulting in an inability to perform, three elements must be met:

1. Unforeseeability: The event must be unforeseeable such that it could not be contracted away (this may not be beneficial in the case where the force majeure clause in question provides a specific listing of events constituting an fm and is not broadly worded);

2. Causation by an outside source or party; and

3. The event is unavoidable.

While each case is fact specific, the current pandemic may provide a basis for arguing excusable delay, if one can show that they were truly impacted by this event. In many cases this issue manifests itself in an inability or lack of availability or material and a delay in the shipment of materials from Asia to other locations. The forced shutdown of manufacturing facilities, the ban on inter-provincial travel and shipping have all acted to preclude the timely overseas delivery of goods and materials.

FORCE MAJEURE CLAUSES – SOME EXAMPLES

Commercial Agreements:

Many commercial agreements recognize the possibility of force majeure events and the excusability of the resulting delay. For example, in the context of construction, the American Institute of Architects A101TM states:

§ 8.3 DELAYS AND EXTENSIONS OF TIME[[1]]

§ 8.3.1 Excusable delays are delays in the progress of the Work which at the time of the delays were critical path activities as shown on the most recently approved Progress Schedule and which prevent the Contractor from achieving Substantial Completion before the expiration of the Contract Time, caused by conditions which could not reasonably be anticipated by, are beyond the control of, and are without the fault or negligence of the Owner, as set forth in Section 8.3.2, the Contractor or anyone for whose acts the Contractor is responsible. Excusable delays do not include any delays caused in whole or in part by any Subcontractor, Sub-subcontractor or supplier which are considered unexcused delays. There shall be no compensation whatsoever for excusable delays. Excusable delays may, but do not necessarily, include:

1. weather delays as further defined in Section 8.3.6;

2. acts of government and regulatory agencies and officials (other than the County in its capacity as Owner);

3. catastrophic events such as fire, flood and unavoidable casualties; and

4. strikes or labor disputes.

Government Contracts:

Likewise, the Federal Acquisition Regulations (“FAR”) recognize the possibility of excusable delays arising out of a force majeure event. FAR Clause 52.249-14 “Excusable Delays”, states in relevant part:

(a) Except for defaults of subcontractors at any tier, the Contractor shall not be in default because of any failure to perform this contract under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the ContractorDefault includes failure to make progress in the work so as to endanger performance.

(b) If the failure to perform is caused by the failure of a subcontractor at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Contractor and subcontractor, and without the fault or negligence of either, the Contractor shall not be deemed to be in default, unless –

(1) The subcontracted supplies or services were obtainable from other sources;

(2) The Contracting Officer ordered the Contractor in writing to purchase these supplies or services from the other source; and

(3) The Contractor failed to comply reasonably with this order.

(c) Upon request of the Contractor, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the delivery schedule shall be revised, subject to the rights of the Government under the termination clause of this contract.

As the foregoing language makes even more clear than the commercial example, acts of God, government, epidemics or quarantine issues can constitute force majeure events. This closely mirrors the fact pattern above.

The Common Law:

While there may be some argument to recognize an implied force majeure doctrine in contracts that lack a formal clause, there are other arguments which may provide a more supported foundation from which to argue.

The law has recognized that there is a doctrine of impossibility of performance, where it must is virtually, if not actually, impossible to perform due to supervening events.

A lesser standard arises from the doctrine of commercial impracticability. Typically, this looks to the question of whether the event was unexpected (unusual or non-customary); was the risk of the event allocated by the contract or trade practice; and did that event make the performance impracticable?[2] In other words, it makes no sense commercially to mandate performance. Both are very fact intensive analyses and carry high burdens of proof.

BEYOND FORCE MAJEURE

In addition to force majeure considerations, government contractors need to also understand whether they need to prioritize government orders, track costs of impact, and amend existing subcontracts. The Defense Priorities and Allocation System (DPAS) allows certain agencies such as the U.S. Department of Homeland Security, which includes the Federal Emergency Management Agency, and the Department of Defense to issue DPAS-rated orders. DPAS-rated orders “jump” to the front of the line of commercial orders and contractors receiving such orders are required to accept except in certain instances that are identified in regulations. Failing to satisfy DPAS-rated orders can result in criminal liability.

Cost impacts of disruption may also be recoverable by contractors. However, in order to recover any such costs, contractors must maintain appropriate records accounting for the additional costs. Without these records, contractors may not be able to satisfy the burden required to recover cost impacts.

Many contractors also utilize subcontractors on their government contracts. Subcontracts between a prime and sub are largely treated as commercial contracts. Accordingly, contractors should examine their existing contracts to determine if they include appropriate provisions that would apply to the outbreak. If not, contractors should look at options for modifying their subcontracts to include such provisions.

WHAT TO DO

1. DO NOT PANIC: First and foremost, it is critical that you do not panic. Epidemics such as the Coronavirus seem to occur with some regularity (e.g., the flu). Companies should have in place policies and procedures for addressing these types of situations, including requiring employees to work remotely and to not come to work if feeling ill or exhibiting a fever. As relates to your obligations to other parties (contracting parties) there are typically explicit clauses and common law duties and rights that address these sorts of situations at both the commercial and government levels.

2. REVIEW YOUR CONTRACTS: Does your contract have a fm clause? If so, is it broadly or narrowly worded (does it list specific fm events or is it openly worded)? Does the clause’s scope cover your fm event, here the Coronavirus? 

3. ENSURE ALL NOTICES ARE TIMELY MADE: More likely than not, if you are impacted by a fm event, the contract (and common sense) requires that the contractor provide notice to its upper (and perhaps lower) tier contracting parties. A good recommendation is that if a force majeure event may impact your work or deliverables even if it has not yet, notice to the other parties should be given as soon as reasonably possible. Even notice of the potentiality of a future impact can often play a key role should that “future event” come to pass. It often allows a party to manage expectations while also developing a record to support a later argument.

4. DO WHAT YOU CAN TO MITIGATE THE IMPACTS: Attempting to order materials or equipment from alternative suppliers or vendors may be a possibility. At least performing the requisite due diligence and having the option available is prudent  Seeking recompense for any cost increases may or may not be realistic (each case is different), but mitigation of your damages and impacts by reprocurement can often have a positive effect on the Project/contract’s outcome. Likewise, making sure that your workforce is protected, avoids contact with potential “carriers” of the virus (or flu, or other illness) is key. Even if one is not impacted by overseas occurrences, it is possible that one “domestic carrier” can infect a significant part of one’s domestic workforce. Having policies in place to protect the business and its workforce from sick personnel is key. This includes educating your employees on what to look for, what precautions to take to minimize spread of the virus/flu/illness and other (often common sense) approaches.

CONCLUSION

Globalization and the current state of the planet (global warming, international travel and shipping) and other “modern convenience” may also result in increased risk of illness, flooding, weather, and other “acts of God.” Being prepared to address these issues as best as one can, even if the particular event is not foreseeable, should result in reduced risk to contracting parties and the populace overall. While not every event is foreseeable or avoidable, contractual and common law defenses may exist under the right circumstances to allow a party to a contract relief from delay and damages to other parties. Recognizing those circumstances, contracting for them as best as possible, and being proactive both to mitigate against them and to notify your fellow-contracting party are all good strategies to consider.

[1] Copyright American Institute of Architects 2017.

[2] See e.g., Transatlantic Fin. Corp. v. United States, 363 F.2d 312, 315 (D.C. Cir. 1966)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kilpatrick Townsend & Stockton LLP | Attorney Advertising

Written by:

Kilpatrick Townsend & Stockton LLP
Contact
more
less

Kilpatrick Townsend & Stockton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.