Last Revised: September 29, 2015
These Terms constitute a binding agreement between you and Upward.net and are deemed accepted by you each time that you use or access the Service. If you do not accept the Terms, do not use the Service.
These Terms contain an Arbitration provision, which will, with limited exception, require you to submit disputes against Upward.net and its affiliates to binding and final arbitration. You will only be permitted to pursue claims against Upward.net on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief on an individual basis.
1. General Service Information
Any use of the Service must comply with the Terms and all applicable laws, rules and
regulations. Users who violate these Terms may have their access and use of the Service
suspended or terminated in our sole discretion.
By providing us with your email address, you consent to our using that email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers; if you do not want to receive email messages, you can opt out or change your email preferences on your account page or by following the opt-out instructions in the email you received at any time.
You acknowledge that Upward.net does not have control over the quality, timing, or legality of the information uploaded to the Service by Job Seekers. In addition, you acknowledge that we do not have control over the integrity, responsibility or actions of Job Seekers. We do not refer or recommend Candidates or Employers, nor do we make any representations about the integrity, responsibility or actions of Candidates or Employers whether in public, private or offline interactions.
2. User Accounts
You may control your account information and how you interact with the Service by changing
the settings in your account. When creating your account or uploading information to the Service
through your account, you represent and warrant that you will provide accurate and complete
You are solely responsible for the activity that occurs on your account and must keep your account password secure. Please use a "strong" password (consisting of a combination of upper and lower case letters, numbers and symbols) with your account and notify us immediately of any breach of security or suspected unauthorized use of your account. We will not be liable for any losses caused by unauthorized use of your account.
Again, you are responsible for all activity, acts or omissions by any of your personnel or agents that create an Account to use the Services (an "Authorized User"). Accounts may not be shared between different personnel. You shall ensure that Authorized Users comply with these Terms, and shall promptly notify us of any suspected or alleged violation, including any unauthorized use of any password or account or any other known or suspected breach of security. You shall cooperate with respect to: (i) any investigation by Upward.net of any suspected or alleged violation of these Terms and (ii) any action by Upward.net to enforce these Terms. We may suspend or terminate an Authorized User's access to the Services in the event that we reasonably determines that such Authorized User has violated these Terms or appears likely to do so. Furthermore, you shall be liable to Upward.net for any violation of these terms by an Authorized User.
3. Prohibited Conduct
In using the Service you agree not to: (i) copy, distribute, or disclose any part of the Service in
any medium, including without limitation by any automated or non-automated "scraping"; (ii)
use any automated system, including without limitation "robots," "spiders," "offline readers,"
etc., to access the Service in a manner that sends more request messages to the our servers than a
human can reasonably produce in the same period of time by using a conventional on-line web;
(iii) transmit spam, chain letters, or other unsolicited email; (iv) attempt to interfere with,
compromise the system integrity or security or decipher any transmissions to or from the servers
running the Service; (v) take any action that imposes, or may impose an unreasonable or
disproportionately large load on our infrastructure; (vi) upload invalid data, viruses, worms, or
other software agents through the Service; (vii) collect or harvest any personally identifiable
information from the Service, except as expressly permitted by the features of the Service; (viii)
use the Service for any commercial solicitation purposes; (ix) impersonate another person or
otherwise misrepresent your affiliation with a person or entity, conducting fraud, hiding or
attempting to hide your identity; (x) interfere with the proper working of the Service; (xi) access
any content on the Service through any technology or means other than those provided or
authorized by the Service; or (xii) bypass the measures we may use to prevent or restrict access
to the Service, including without limitation features that prevent or restrict use or copying of any
content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service or stop providing the Service or features of the Service, to you or to Users generally. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of the Terms. Upon termination for any reason or no reason, you continue to be bound by these Terms.
Users may post content such as job and company information, application information, logos, trademarks, comments, questions, and other content or information ("User Content"). You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post may not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. We reserve the right to reject and/or remove any User Content that we believe violates these provisions. For the purposes of these Terms, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any User Content that you submit, that our use of your User Content in accordance with these Terms will not violate any law or infringe the rights of any third party, and that to the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
Upward.net takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you allege to incur as a result of User Content.
4. License to User Content
5. End User License Grant
Subject to the Terms, you are hereby granted a non-exclusive, limited, non-transferable, non-sub-
licensable, freely revocable, license to use the Service. We reserves all rights not expressly
granted herein to the Service and our Content, as defined below. We may terminate this license
at any time.
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the "Upward.net Content"), and all Intellectual Property Rights related thereto, are the exclusive property of Upward.net and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Upward.net Content or materials on the Service for any purpose not expressly permitted by the Terms and are strictly prohibited.
Any feedback, comments, or suggestions you may provide regarding us or the Service are entirely voluntary and we are free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
6. Paid Services
By using our paid services, you agree to the pricing and payment terms for the applicable Service, as we may update them from time to time. Upward.net may add new services for additional fees and charges, or amend fees and charges for existing services, at any time. Any change to the Fee Schedule shall become effective in the billing cycle following notice of such change to you as provided in these Terms. You billing cycle will begin on the date you sign up for a paid Service and you will be billed every thirty (30) days thereafter until your membership is changed, suspended or terminated by either party.
You may cancel your User account at any time, however there are no refunds for cancellation. In the event that we suspend or terminate your account or these Terms due to your breach of these Terms, you recognize and agree that you will not receive a refund or be able to exchange for any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account or for anything else.
Payment Information; Taxes
All information that you provide in connection with a purchase or other monetary transaction with the Service must be accurate, complete and current. You agree to pay all charges incurred by users or your credit card, debit card or other payment method used in connection with a purchase or monetary transaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes relating to such purchases or monetary transactions. Delinquent payments will bear interest at the rate of one and one half percent per month or the highest rate permitted by law from the payment due date until paid in full. You will be responsible for all reasonable expenses, including attorneysâ fees, incurred in the collection of a delinquent amount, unless such amount is due to billing inaccuracy.
7. General Use
You are solely responsible for ensuring that your use of the Service is in compliance with
applicable law. You represent and warrant that you will not use the Service to post any position
containing inaccurate, false, or misleading information; includes any screening requirement or
criterion in connection with a job posting where such requirement or criterion is not an actual
and legal requirement of the posted job; involves any franchise, pyramid scheme, "club
membership", distributorship, or multi-level marketing opportunity; requires applicants to pay to
apply, pay for training, pay for training materials, or pay for samples. You also agree not to use
the Service to post or promote any position that is compensated on a commission basis only,
unless clearly stated in your posting.
When you create an Account to post a job opening, in addition to posting on our websites, we will make reasonable efforts to distribute your job posting to the third-party services indicated on the Service, as we may update them from time to time ("Providers"). You acknowledge and accept that we do not control the Providers and we provide no guarantee that your job post will be accepted by a particular Provider. You understand that Providers may reject your posting for any reason. You agree that we are not liable to you or any third party in the instance where your posting is rejected or not posted by Providers. By posting your job, you give us permission to distribute your post to current and future Providers. You acknowledge and agree that Upward.net is not responsible and explicitly disclaims all liability for Providers, including without limitation their availability, operations, features and functionality.
You understand and agree that we may, without liability or penalty, remove any Job Listing, content, communication or information posted which, in our sole judgment, violates or may violate: these Terms; any applicable law, rule or regulation; may adversely affect Upward.net; is false, inaccurate, misleading, deceptive, fraudulent, libelous, defamatory, immoral, offensive, obscene, pornographic, disruptive, threatening, abusive or illegal; or which may violate or lead to the violation of the rights of, or harms or threatens the safety and privacy of any third party.
Resume Database Access
If you are accessing our Resume Database, then subject to these Terms, we hereby grant you a limited, revocable, non-transferable, non-exclusive right to access the Resume Database from the Service for the limited purpose of viewing and/or downloading a single copy of available paper resumes solely for use by you as an Employer. When you access the Resume Database as an Employer, you represent and warrant that you will comply with the following rules regarding Resume Database access:
- The Resume Database shall only be used by an Employer User for the purpose of seeking employees for Employer.
- The Resume Database shall not be used to send unsolicited mail or e-mails, make unsolicited phone calls or send unsolicited faxes regarding promotions and/or advertising of Employerâs or a third partyâs products or services.
- Employer shall implement appropriate physical, technical, and administrative measures to protect the data within the Database from loss, misuse, unauthorized access, disclosure, alteration or destruction.
- Employer shall respect the privacy choices of Job Seekers who have uploaded their information to the Resume Database.
- The Resume Database shall not be used in any way that, in our sole discretion, adversely affects our business, the performance of the Service, or interferes with the ability, of others to access the Resume Database.
Although the integrity and security of your personal information is important to us, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
10. DMCA Notice and Trademark Infringement
Upward.net respects the intellectual property rights of others and it is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe something on this website has infringed your intellectual property rights, please provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the owner;
- Identification of the work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and provide a link (where available) to where it is located on the Service;
- Information reasonably sufficient allow us to contact you, such as your address, telephone number, and, e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the owner or are authorized to act on behalf of the owner.
The above information must be submitted to the DMCA Agent at the following:
Attn: Legal Department
Address: Upward.net LLC, 548 Market St., Suite 30363, San Francisco, CA 94104-5401
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES. In accordance with the DMCA and other applicable law, our policy is to terminate, in appropriate circumstances, Users who are deemed to be repeat infringers. We may also limit access to the Service and/or terminate the accounts of any User who infringers the intellectual property rights or others, whether or not there is repeat infringement.
11. Third-Party Links and Services
You agree to defend, indemnify and hold harmless Upward.net LLC and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any section of the Terms, including, without limitation, any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damage that arises as a result of User Content submitted via your account; or (vi) any other party's access to and use of the Service via your User Account. We shall provide notice to you promptly of any such claim, suit or proceeding.
13. Disclaimer of Warranty
TO THE FULLEST EXTENT POSSIBLE BY LAW, UPWARD.NET DOES NOT WARRANT
THAT ANY SITE OR THE SERVICE WILL OPERATE ERROR-FREE OR THAT ITS
SERVERS ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS.
IF YOUR USE OF THE SERVICE RESULTS IN THE NEED FOR SERVICING OR
REPLACING EQUIPMENT OR DATA OR ANY OTHER COSTS, UPWARD.NET IS NOT
RESPONSIBLE FOR THOSE COSTS. THE SERVICE IS PROVIDED ON AN "AS IS" BASIS
WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT
PERMITTED BY LAW, UPWARD.NET DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. UPWARD.NET
MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS,
OR TIMELINESS OF THE MONSTER CONTENT, SERVICES, SOFTWARE, TEXT,
GRAPHICS, AND LINKS.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY AN EMPLOYER OR THIRD PARTY THROUGH THE OUR SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND AN EMPLOYER OR THIRD-PARTY PROVIDER OF PRODUCTS OR SERVICES.
14. Disclaimer of Consequential Damages
TO THE FULLEST EXTENT POSSIBLE BY LAW, IN NO EVENT SHALL UPWARD.NET, ITS SUPPLIERS, OR ANY THIRD PARTIES MENTIONED ON THE SERVICE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITY OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT UPWARD.NET IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL
UPWARD.NET, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR
LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER
INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE,
THIS SERVICE. UNDER NO CIRCUMSTANCES WILL UPWARD.NET BE RESPONSIBLE
FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING
OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT
OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UPWARD.NET ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY. IN NO EVENT SHALL UPWARD.NET, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING $100.00.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF UPWARD.NET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
The Service is controlled and operated from the United States. We make no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable United States local and federal laws, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
16. Arbitration Agreement and Opt-Out
Unless you opt-out pursuant to the opt-out procedures set forth herein, you agree that any and all
disputes or claims that have arisen or may arise between you and Upward.net or its affiliates,
whether relating to the Service, these Terms (including any alleged breach thereof), or otherwise
(each a "Dispute"), shall be resolved exclusively through final and binding arbitration, rather
than a court in accordance with this Arbitration Agreement. Your rights will be determined by a
neutral arbitrator, not a judge or jury. YOU UNDERSTAND THAT ABSENT THIS
AGREEMENT TO ARBITRATE, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), including the AAA's Supplementary Procedures for Consumer-Related Disputes, each available at www.adr.org, or such other alternative dispute resolution body and arbitration rules that may be mutually agreed upon by you and Upward.net. Your arbitration fees and your share of arbitrator compensation shall be governed by such rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in herein, you and Upward.net may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
You and Upward.net agree that any arbitration shall be limited to the Dispute between Upward.net and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class- action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Informal Negotiations and Arbitration
You and Upward.net agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
17. 30 Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section by sending written notice of your decision to opt-out to our contact information listed at the bottom of this Agreement. The notice must be sent within thirty (30) days of your registering to use the Service, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
18. Governing Law and Location
These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Upward.net, without restriction.
20. Relationship of the Parties
Nothing in these Terms shall be construed as making either party the partner, joint venturer, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound.
We may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as we determine in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. Upward.net is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us.
22. Entire Agreement/Severability/No Waiver
These terms, together with any amendments and any additional agreements you may enter into with Upward.net in connection with the Service, shall constitute the entire agreement between you and Upward.net concerning the Service. If any provision of these Terms are deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of the Terms shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.