Terms of Use
Last Updated: September 18, 2023
PFG Ventures, L.P. (“PFG,” “we,” or “us”) may provide you with certain websites, software, applications, and content (“PFG Hosted Services”). Other products or services may be provided to you through independently-owned and operated PFG franchisees or third parties (each, A “Seller”), under which your sole and exclusive rights and remedies may pertain to such Seller for the purchase or receipt of any product or service purchased through the PFG Hosted Services.
PLEASE READ THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS CAREFULLY BEFORE USING THE PFG HOSTED SERVICES. THESE TERMS GOVERN YOUR USE OF THE PFG HOSTED SERVICES IN GENERAL. BY USING THE PFG HOSTED SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS.
ANY DISPUTE BETWEEN YOU AND US IS SUBJECT TO A CLASS ACTION WAIVER AND MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION (SECTION 7. BELOW) AS IT AFFECTS YOUR RIGHTS UNDER THIS CONTRACT.
1. These Terms of Use Are a Contract Between You and Us
A. Binding Contract. These terms of use (“Agreement”) are a contract between you and PFG Ventures, L.P., as an Ohio limited partnership doing business at 8800 E. Pleasant Valley Road, Independence, Ohio 44131. Other than as expressly stated herein, this contract has no third-party beneficiaries.
B. Agreement. You represent to PFG that you have read, understood, and expressly agree to be bound by this Agreement and the terms, conditions, and notices contained or referenced herein, whether you have created an account (and agree to this Agreement at the time you made that account) or whether you simply browse, use, or access a PFG Hosted Service offered directly by PFG or through a third party or independently owned and operated franchisee (and agree to this Agreement when you browse, use, or access any aspect of the PFG Hosted Service). If you disagree with the Agreement, you may not use any PFG Hosted Service.
C. Supplemental Terms. This Agreement governs the PFG Hosted Service in general. More specific and/or supplemental terms and conditions may apply to some PFG Hosted Services, including but not limited to, a particular software, application, promotional code, service or other activity; availability of certain merchandise, content, programs, or other activities; conditions or other limitations to the PFG Hosted Services for users under certain ages; and/or specific terms or restrictions that may accompany certain territories, programs, content, products, websites, applications or other software. Any supplemental terms and conditions are in addition to this Agreement, and in the event of a conflict, the supplemental terms will prevail over this Agreement. If you do not agree to the applicable supplemental terms and conditions disclosed, you may not use the PFG Hosted Services. Purchases of products or services are provided solely and exclusively by a Seller on a hosted website, electronic store, application, or other medium to transact business “Other Platforms.” Each Seller may have different and/or additional terms and conditions that you agree to comply with regarding use of such Other Platforms.
D. Amendments. We may need to change any portion of this Agreement from time to time and for many reasons, including to reflect updates to the PFG Hosted Services or changes in law. If we make a change to this Agreement, it will be effective thirty (30) days following our posting of the amended terms through the PFG Hosted Service or the third party that makes products or services available to you on the Other Platforms. You are responsible for periodically reviewing this Agreement for updates and amendments. By continuing to use the PFG Hosted Services, you will be deemed to have agreed to and accepted any amendments. If you do not agree to any change to this Agreement, you must discontinue using the PFG Hosted Services. Our customer service representatives or any independently owned and operated franchisee or third party are not authorized to modify any provision of this Agreement, either verbally or in writing.
E. Accounts. Some PFG Hosted Services permit or require you to create an account to participate or to secure additional benefits. You agree that any information you provide and maintain is accurate, current, and complete, including your contact information for notices and other communications from us and your payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password, account information, or another person’s name or likeness, or provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of the information you provide. Use must be 18 years of age to use the PFG Hosted Services and to purchase any products or services on the Other Platforms.
F. Passwords and Security. You agree that you will not share your account or account information with others. You are responsible for taking reasonable steps to maintain the confidentiality of your username and password and for all activities under your account that you can reasonably control. You agree to promptly notify us of any unauthorized use of your username, password, or other account information or any other security breach that you become aware of involving your account or PFG Hosted Services.
G. Electronic Notice. You consent to receive notices, including agreements, disclosures, and other communications, electronically from us at the email address you provided. You agree that these electronic notices satisfy any legal requirements that such communications be in writing.
H. Termination or Suspension. We may terminate or suspend your access to any PFG Hosted Services and/or terminate this Agreement subject to the survival of terms as provided below if required by law or if we have objective reason to believe you have used the PFG Hosted Services in violation of any provision of this Agreement or any supplemental terms, and/or if you engage in or encourage the infringement or any other illegal conduct as it relates to your use of the PFG Hosted Services.
2. License Grant and Restrictions
The PFG Hosted Services, including, but not limited to, the electronic store platform, programming, hosting of certain products and services, scripts, code, images, and artwork, are our copyrighted, patented, or trademarked property or the copyrighted, patented or trademarked property of our licensors and all copyrights, trademarks, service marks, trade names, trade dress, patents and other intellectual property rights in the PFG Hosted Services are owned by us or our licensors (who may be third-party beneficiaries of this contract) and protected by the copyright, trademark, patent and other laws of the United States and international treaties.
A. License. If a PFG Hosted Service or third party providing PFG Hosted Services subject to this Agreement is configured to enable the use of software, content, virtual items, or other materials owned or licensed by us, we grant you a limited, non-exclusive, non-sublicensable, non-transferable license to access and use in the United States or Canada such software, content, virtual item or other material for your use only, only for as long as that PFG Hosted Service is made available to you by us, or an authorized third party, and only in accordance with this Agreement and/or the specific terms that apply to that PFG Hosted Service, with no right to reproduce, distribute, communicate to the public, make available to the public, or transform any PFG Hosted Service, in any media format or channel now known or hereafter devised (except as may be expressly described or contemplated within the PFG Hosted Service). This is a license agreement and not an agreement for the sale or assignment of any rights in the PFG Hosted Services. Except as we expressly agree in writing, no element of the PFG Hosted Services may be used or exploited in any way other than as part of the authorized service made available to you. We do not transfer title to any portion of the PFG Hosted Services, websites, software, applications, content, virtual items, or other materials and/or services to you. Likewise, the purchase of a license to use any PFG Hosted Service does not create an ownership interest in the PFG Hosted Services, websites, software, applications, content, virtual items, or other materials and/or services.
B. Restrictions on Your Use of PFG Hosted Services. You agree that as a condition of your license, you will not:
i. circumvent or disable any content protection system or digital rights management technology used in connection with any PFG Hosted Service;
ii. copy any portion of any PFG Hosted Service (except as expressly permitted by us);
iii. rebroadcast, transmit, or perform any PFG Hosted Service;
iv. create derivative works of any PFG Hosted Service or any part thereof, except as and only to the extent that any foregoing restriction is prohibited by applicable law;
v. move, decompile, reverse-engineer, disassemble, or otherwise reduce to human-readable form the PFG Hosted Services and/or the video player(s), underlying technology, any digital rights management mechanism, device, or other content protection or access control measure incorporated into the video player(s);
vi. modify the PFG Hosted Services, including, but not limited to, by removing identification, copyright, or other proprietary notices from the PFG Hosted Services, or by framing, mirroring, or utilizing similar techniques;
vii. access or use the PFG Hosted Services in a manner that suggests an association with our products, services, or brands;
viii. bypass, modify, defeat, tamper with, or circumvent any of the functions or protections of the PFG Hosted Services;
ix. access, monitor or copy, or permit another person or entity to access, monitor, or copy, any element of the PFG Hosted Services using a robot, spider, scraper, or other automated means or manual process without our express written permission;
x. damage, disable, overburden, or impair the PFG Hosted Services;
xi. use the PFG Hosted Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement; and
xii. allow third parties to violate the above restrictions.
C. Violation. Any attempt to perform any of the restricted actions listed above is a violation of PFG’s rights and/or the intellectual property rights holder.
D. Export Controls. You may not access or use any PFG Hosted Service in violation of United States export control and economic sanctions requirements. By acquiring services, content, or software through the PFG Hosted Services, you represent and warrant that your access to and use of the services, content, or software will comply with those requirements.
3. Usage Rules
A. Changes to the PFG Hosted Services. The PFG Hosted Services are constantly evolving and will change over time. We reserve the right to make such changes or, if necessary, discontinue some or all of the PFG Hosted Services. If required by law, we may also need to suspend, restrict, or terminate your access to PFG Hosted Services.
B. Third-Party Services or Platforms. The PFG Hosted Services may integrate, be integrated into, or be provided in connection with third-party websites, services, applications, platforms, and/or content. We do not control those third-parties or the products they make available. You should read the terms of use agreements and privacy policies that apply to such third-party products. If you purchase a product or service through a Seller, such Seller shall be a third-party beneficiary of this contract. However, these third-party beneficiaries are not a party to this contract. You agree that your access to the PFG Hosted Services using these devices also shall be subject to the usage terms set forth in the applicable third-party beneficiary’s terms of service. You represent to PFG that you have read and agreed to those terms.
C. Internet, Browser, and System Requirements. You may need a high-speed Internet connection and/or minimum system and/or browser requirements to access and use certain aspects of the PFG Hosted Services.
D. Mobile Networks. When you access the PFG Hosted Services through a mobile network, your network or roaming provider’s messaging, data, and other rates and fees will apply. Downloading, installing, or using certain services may be prohibited or restricted by your network provider, and not all services may work with your network provider or device.
E. Consent to Messages. When you use the PFG Hosted Services, you may be given the opportunity to consent to receive communications from us through email, text, and/or mobile push notifications. Standard text and calling rates will apply. You agree that texts, calls, or prerecorded messages may be generated by automatic telephone dialing systems. You can opt out of promotional communications by following the “Unsubscribe” directions for emails, through the settings of the PFG Hosted Service, or, if via text message, by responding STOP. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE PFG HOSTED SERVICES.
F. App Permissions. When you use the PFG Hosted Services, you may grant certain permissions to us for your device and/or accounts. Most mobile device platforms provide additional information regarding these permissions and how, if possible, to change your permission settings. By downloading, installing, or using the PFG Hosted Services, you agree to receive automatic software updates (as applicable).
G. Informational and Entertainment Purposes. You understand that the PFG Hosted Services do not constitute legal, financial, business, professional, medical, or healthcare advice or diagnosis and cannot be used for such purposes.
H. Malware. You agree not to knowingly or recklessly introduce a virus or other harmful component or otherwise tamper with, impair, or damage any PFG Hosted Service or connected network or interfere with any person or entity’s use or enjoyment of any PFG Hosted Service Product. You agree not to use any software or device that allows automated purchasing, expedited purchasing, or other manipulation, and you agree not to cheat or otherwise modify a PFG Hosted Service to create an advantage for one user over another.
4. Paid Transactions
A. Identity of Seller. All product and service sales and all content hosting by you are made by Sellers identified at the time of sale. If you have questions about your order, please contact the Seller at the address provided, and they will assist you. Sellers operate all digital storefronts on the PFG Hosted Services, and, in that case, different or additional sale terms may apply, which you should read when they are presented to you. No electronic storefront sales are made to you by PFG whatsoever.
B. The Order Process. We only host the order process, and we are not responsible for the order, any product or service, or additional terms and conditions by any Seller. You can review and confirm your order, including delivery address (if applicable), payment method, and product details prior to submitting your order. You will be sent a notice when your order is accepted by the Seller, and such acceptance will be deemed complete and, for all purposes, to have been effectively communicated to you at the time the notice is sent. At such time, the contract for sale will be made and become binding on both you and the Seller.
Each Seller reserves the right to refuse or cancel any order prior to delivery. Some situations that may result in your order being canceled include system or typographical errors, inaccuracies in product or pricing information or product availability, limited supplies, or problems identified by our credit or fraud departments. Additional verification or information before accepting an order by a Seller may be required.
F. Payments and Billing. When you provide payment information to a Seller, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will notify the Seller of changes to the payment information. The Seller reserves the right to utilize third-party payment card updating services to obtain current expiration dates on credit cards and debit cards.
H. Pricing; Taxes. Each Seller may revise the pricing for the products or services such Seller offers. When you place your order, the Seller estimates the applicable tax and includes that estimate in the total for your convenience. Except to the extent required under applicable tax laws, the actual tax amount that will be applied to your order and charged to your payment method is based on calculations on the date of shipment, regardless of when the order was placed.
I. International Shipping; Customs. When ordering goods for delivery to countries other than the country where the Seller is located, you may have to pay import duties and taxes levied. You must bear these and any additional charges for customs clearance. For goods shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; manuals, instructions, and safety warnings may not be in destination country languages; the goods and accompanying materials may not be designed in accordance with destination country standards, specifications, and labeling requirements; and the goods may not conform to destination country voltage (requiring the use of an adapter or converter). You are responsible for assuring the goods can be lawfully imported to the destination country. When ordering from a Seller, the recipient is the importer of record and must comply with all laws and regulations of the destination country.
5. Disclaimers and Limitation on Liability
THE PFG HOSTED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE DISCLAIM ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES NOT EXPRESSLY SET OUT IN THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.
PLEASE REFER TO THE HELP SECTION OF THE APPLICABLE PFG HOSTED SERVICE FOR ASSISTANCE IF A PFG HOSTED SERVICE IS NOT WORKING PROPERLY IF A HELP SECTION IS AVAILABLE. It is your responsibility to ensure you follow instructions, have the minimum system requirements, update software as recommended, and consult our customer service resources if you encounter a problem with the PFG Hosted Services.
We shall not be liable for delay or failure in performance for causes beyond our control or any other damage that does not result from a breach of our obligations under this Agreement.
We are not liable for business losses. If you use the PFG Hosted Services, we will have no liability to you for any loss of profit, loss of business, business interruption, loss of business opportunity, or similar loss.
WE ARE NOT RESPONSIBLE FOR ANY LACK OF FUNCTIONALITY OR FAILURE TO PROVIDE ANY PART OF THE PFG HOSTED SERVICES, OR ANY LOSS OF CONTENT OR DATA THAT IS DUE TO: YOUR EQUIPMENT, DEVICES, OPERATING SYSTEM, OR INTERNET CONNECTION; OR YOUR FAILURE TO COMPLY WITH SPECIFIED COMPATIBILITY REQUIREMENTS.
WE SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND PROPERTY DAMAGE, EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL WE BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL.
IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED ONE THOUSAND U.S. DOLLARS (U.S. $1,000).
6. Submissions, User Generated Content, DMCA Takedown Notices
A. Submissions and Unsolicited Ideas Policies. Our company policy prohibits us from accepting or considering unsolicited creative ideas, suggestions, or materials. In connection with anything you submit to us – whether or not solicited by us – you agree that creative ideas, suggestions, or other materials you submit are not made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation or consideration of any type.
B. User-Generated Content. The PFG Hosted Services may ask for or allow you to communicate, submit, upload, or otherwise make available text, chats, images, audio, video, entries, or other content (“User-Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. Whether a PFG Hosted Service is made available by us or in connection with PFG Hosted Services, appears on a hosted website, service, and/or platform, or is integrated with a third-party website, service, application, and/or platform, you may not submit or upload User-Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
In most instances, we do not claim ownership of your User-Generated Content; however, you grant us a non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, transform, adapt, translate, create derivative works based upon, publicly perform, publicly communicate, make available, and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the PFG Hosted Services and on third-party websites, services, applications, and/or platforms), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, without attribution (to the extent this is not contrary to mandatory provisions of applicable law), and without the requirement of permission from or payment to you or any other person or entity. You agree that submission of User-Generated Content does not establish any relationship of trust and confidence between you and us and that you have no expectation of compensation whatsoever (except as may be stated explicitly in the provisions of the PFG Hosted Services in connection with the submission, or arising from it).
You represent and warrant that your User-Generated Content conforms to this Agreement and that you own or have the necessary rights and permissions, including, without limitation, all copyrights, music rights, and likeness rights (with respect to any person) contained in the User Generated Content, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User-Generated Content in all manners contemplated by this Agreement; and you agree to indemnify and hold us harmless from any claims or expenses (including attorneys’ fees) by any third party arising out of or in connection with our use and exploitation of your User-Generated Content resulting from your breach of this Agreement. You also agree to waive and not to enforce any moral rights, ancillary rights, or similar rights in or to the User-Generated Content against us or our licensees, distributors, agents, representatives, and other authorized users, and agree to procure the same agreement to waive and not to enforce from others who may possess such rights.
To the extent that we authorize you to create, post, upload, distribute, publicly display, or publicly perform User-Generated Content that requires the use of our copyrighted works, we grant you a non-exclusive license to create a derivative work using the specifically referenced copyrighted works as required for the sole purpose of creating such a work, provided that such license shall be conditioned upon your assignment to us of all rights worldwide in the work you create for the duration of copyright in the User-Generated Content, in all formats and media known or unknown to date, including for use on PFG Hosted Services and on third party sites and platforms. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
We may monitor, screen, post, remove, modify, store, and review User-Generated Content or communications sent through a PFG Hosted Service at any time and for any reason, including to ensure that the User-Generated Content or communication conforms to this Agreement, without prior notice to you. We may terminate your account and access to the PFG Hosted Services if your User-Generated Content violates this Agreement, including unlawful postings or content, without prior notice to you. We are not responsible for and do not endorse or guarantee the opinions, views, advice, or recommendations posted or sent by users.
C. Claims of Copyright Infringement. Notifications of claimed copyright infringement and counter-notices must be sent to our designated agent:
Attn: PFG
Designated Agent
PFG Ventures, L.P.
8800 E. Pleasant Valley Road
Independence,
Ohio 44131
Phone: +1 216-520-8400
Email: dkordel@proforma.com
We are only able to accept notices in the languages in which this Agreement is made available by us.
We will respond expeditiously to claims of copyright infringement committed using the PFG Hosted Services that are reported to our designated copyright agent in accordance with the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”) or, as applicable, other laws.
7. BINDING ARBITRATION AND CLASS ACTION WAIVER
PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor PFG will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitrations or proceedings.
As provided below, you and PFG agree to arbitrate all disputes between you (including any related disputes involving PFG, its subsidiaries, or its affiliates) that are not resolved informally, except disputes relating to the ownership or enforcement of intellectual property rights. “Dispute” includes any dispute, action, or other controversy, whether based on past, present, or future events, between you and us concerning the PFG Hosted Services or this Agreement, whether in contract, tort, warranty, statute, regulation, or other legal or equitable basis. You and PFG empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of these terms or the formation of this contract, including the arbitrability of any dispute and any claim that all or any part of this Agreement is void or voidable.
A. In the event of a dispute, you or PFG must send to the other party a notice of dispute, which is a written statement that sets forth the name, address, and contact information of the party giving the notice, the facts giving rise to the dispute, and the relief requested. You must send any notice of dispute to PFG Ventures, L.P., 8800 E. Pleasant Valley Road, Independence, Ohio 44131, USA, Attention: Legal. We will send any notice of dispute to you at the contact information we have for you. You and PFG will attempt to resolve a dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After that sixty (60) day period and not before, you or we may commence an arbitration proceeding.
B. If you and PFG do not resolve a dispute by informal negotiation, the dispute shall be resolved by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY. The arbitration will be administered by JAMS Mediation, Arbitration, and ADR Services (“JAMS”) in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions about how to initiate an arbitration are available at www.jamsadr.com or 1-800-352-5267. Arbitration may be conducted in person, through the submission of documents, by phone, or online. Proceedings that cannot be conducted through the submission of documents, by phone, or online will take place in Cleveland, Ohio. You and PFG agree to submit to the exclusive jurisdiction of the federal or state courts located in Cleveland, Ohio, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
In accordance with the JAMS Rules, the party initiating the arbitration (either you or PFG) is responsible for paying the filing fee.
Except as provided above with respect to jurisdiction in Cleveland, Ohio, nothing in this arbitration provision shall be construed as consent by PFG to the jurisdiction of any other court with regard to disputes, claims, or controversies unrelated to the PFG Hosted Services or this Agreement.
8. Additional Provisions
A. Choice of Forum. You agree that any action at law or in equity arising out of or relating to this Agreement that is not subject to arbitration shall be filed, and that venue properly lies only in the state or federal courts located in Cleveland, Ohio, United States of America and you consent and submit to the personal jurisdiction of such court for the purposes of litigating such action.
B. Choice of Law. This Agreement is governed by and construed in accordance with the laws of the State of Ohio and the laws of the United States, without giving effect to any conflict of law principles.
C. Severability. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
D. Survival. The provisions of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination, including but not limited to the restrictions, disclaimers, limitations, our rights to use submitted content, and rules regarding dispute resolution in Section 2, 3, 5, 6 and 7 as well as the general provisions in this Section 8.
E. Waiver. No waiver of any provision of this Agreement by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.