These Terms and Conditions constitute an agreement (“Agreement”) between you (“you”, “your”, “user” or “Partner Client”) and AINEO Networks (“CIRCLE Cloud Communications”or “CIRCLE”) for virtual business telecommunication services and any related products or services (“Services”). This Agreement governs both the Services and any assigned toll free and/or local number account (“Account”) used in connection with the Services.
Any of the following actions constitute your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization or registration of the Services, either on the telephone, facsimile, or through the CIRCLE website (CircleIP.com) or through any of the CIRCLE domains such as QuickPhone and QuickerWeb.com websites and subdomains are collectively referred to herein as, the “Site”); or (ii) through the use of your Account and password (defined below); or (iii) your use of the Site.
All Materials (defined below), Services, Accounts and content, including but not limited to policy information, text, software, music, sound, photographs, video, graphics, the arrangement of text and images, commercially produced information, and other material contained on the Site or through the Services (“Content”), are provided by CircleIP.com unless indicated otherwise. All intellectual property rights in the Materials, Content, Services and Accounts (including copyrights, trademarks, service marks, trade secrets and patents) are the property of CIRCLE and AINEO Corporation. CIRCLE retains all copyrights in the individual pages, and their components, and collective works available at the Site.
The Materials, Content, Services and Accounts are copyrighted and are protected by national and worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way without CircleIP.com’s prior written permission.
Trademarks and copyrights including CircleIP.com, the QuickPhone characters and elements and the CircleIP.com logo are the property of AINEO. All other names and trademarks are the property of their respective holders.
2. Single Copy License
You may download one copy of the materials (the “Materials”) and/or Content found on this Site for use with the Services and/or Accounts. This is a license, not a transfer of title, and is subject to the following restrictions: unless you receive prior written consent from CIRCLE and unless you receive any required regulatory approvals, you may not: (a) modify the Materials, Content, Services or Accounts or use them for any commercial purpose or any public display, performance, sale or rental; (b) decompile, reverse engineer, or disassemble software, Materials, Content, Services or Accounts; (c) remove any copyright or other proprietary notices from the Materials, Content, Services or Accounts; (d) unless otherwise provided herein, transfer or resell the Materials, Content, Services or your Account to another person. You agree to prevent any unauthorized copying of the Materials, Content, Services and Accounts.
The term of this Agreement begins on the date CIRCLE activates Services for your Account. This Agreement will continue from starting month to concluding month noted in purchase order or online purchase until terminated by either party pursuant to the terms hereof.
4. Order Acceptance Policy
Your submission of your order on the Site or receipt of an email or fax order confirmation signifies acceptance by CIRCLE of your order and the provision of your Account. CIRCLE may verify orders to prevent fraud. Should CIRCLE suspect the placement of a fraudulent order (even after you have received an email confirmation of acceptance of your order and the provision of your Account), may contact you by email or telephone regarding such suspected fraudulent order and, in sole discretion, interrupt, restrict or terminate your Account without notice to you by CircleIP.com.
5. Use of Services and Account
Certain pages on the Site or the access to the Services and/or your Account may be accessed only by use of a password You are solely responsible for all uses of the Site and/or the Services and/or your Account with your password. You should change your password once each month. If your Services or Accounts are fraudulently used, you agree to immediately notify us of such unauthorized use. CIRCLE has the right to interrupt, restrict or terminate Services to your Account, without notice to you, if we suspect fraudulent or abusive activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures CIRCLE prescribes.
You are responsible for paying all charges to your Account for Services, including but not limited to, long distance and special number charges (such as 0990), regulatory and government fees, and for all taxes and surcharges, including regulatory recovery fees, imposed on you or us as a result of your use of the Services.
Each service plan, for both toll-free and local numbers, has (i) a fixed monthly service fee (this service fee, which is posted on the Site, is the basic charge associated with your Service. This fee includes the calling charges defined by your Service plan (ii) and free inbound phone calls as well as internal phone calls. (iii) An additional minute rate as posted on your agreement as well as available via invoice.
CIRCLE may charge initiation fees and additional fees for optional features, add-ons, and other added products and Services. Such fees are posted on the Site. CIRCLE reserves the right to change its pricing and/or billing practices in its sole discretion. CIRCLE may introduce new products and Services at special introductory pricing. Introductory pricing may change at discretion by CIRCLE. CIRCLE bills usage charges in six (6) second increments with an eighteen (18) second minimum, or as otherwise stated by your Service plan. IN ORDER TO ENABLE INTERNATIONAL CALLING ON YOUR ACCOUNT YOU MAY NEED TO PAY AN INITIAL DEPOSIT OF 30,000 JPY. THIS DEPOSIT WILL BE USED TO PAY CHARGES AS THEY ARE INCURRED ON YOUR ACCOUNT.
CIRCLE reserves the right, in its sole discretion, to block access to certain international countries and locations that are frequently implicated in fraudulent calls (“Blacklisted Destinations”). At your request, CIRLCE may provide you access to Blacklisted Destinations on the following conditions:
It is your responsibility to ensure that your account is not used in any fraudulent scheme to make calls or faxes to Blacklisted Destinations. CIRCLE will rely entirely on you to identify such fraud. You agree that you shall continuously monitor your account for, and immediately notify CIRCLE of, fraudulent or improper use.
In the event your account is used fraudulently in connection with the Blacklisted Destinations, CIRCLE reserves the right to immediately and irrevocably deny your account access to the Blacklisted Destinations.
You agree to indemnify and hold harmless CIRCLE and its affiliates, agents, resellers, and other providers from any damages, losses, liabilities, claims, expenses, and costs (including, without limitation, reasonable attorneys’ fees) arising from or relating to fraudulent or improper calls or faxes to Blacklisted Destinations.
Service plans are charged once a month or upon the accrual of usage-based fees which results in charges that exceed the Threshold Amount for your account, whoever comes first. The Threshold Amount is set by CIRCLE and may vary based on your plan of service, usage and account history.
Customers with past due balance on previous or multiple accounts will be charged the full balance due upon opening a new account or updating their payment method on file.
7. Billing and Payment
Any applicable initiation fees and monthly recurring charges are billed in advance of the month of usage. You will also be billed for additional outbound minutes you used (which exceeded the number of calling minutes in your plan); either on the month following such usage or when the usage results in a charge that exceeds your Threshold Amount as defined in Section 6 whichever comes first. Usage charges are billed in arrears. Unless otherwise agreed to in writing, you are to pay for all charges by bank transfer. Accounts will automatically be billed monthly. You will advise us of any changes to your bank account, such as account number, billing address, or expiration date changes. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and pro-rations. Time is of the essence for payment. Therefore, you agree to pay us interest at the lesser of (a) 18% per annum or (b) the highest amount allowed by law for any amounts unpaid as of the due date. Acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any of our rights to collect the full amount due under this Agreement. Notice of any disputes must be in writing and received by us at our address within thirty (30) days after the invoice date or you will waive any objection.
You may terminate this Agreement at any time with thirty (30) days notice in accordance with the immediately following procedure. You are responsible for remaining months in agreement as placed in original order. You must give such notice of termination by “Submitting a Ticket” to our Billing Department. You can “Submit a Ticket” on the Support Center page of the Site at http://QuickerWeb.com. Upon receipt of your Ticket, indicating your desire to terminate this Agreement, we will generate a Cancellation Ticket to cancel your Account. We will send to you, by e-mail, a Cancellation Ticket Number to confirm that your termination notice was received. If you do not receive a Cancellation Ticket Number, your termination notice may not have been received by us. You may contact our Customer Support Department at 03-4550-6800 to verify the generation of a Cancellation Ticket Number. Your termination request will be fulfilled within 1 (one) business day. Because minutes are paid in arrears, a final payment for minute usage will be processed on your next billing date after termination.
We may terminate this Agreement at any time without notice as provided in Section 24 herein.
If you fail to pay any amount owed to us within 5 days after the due date, or if you have in the past failed to pay amounts due us or an affiliate of CIRCLE, or if you breach any representation to us or fail to perform any of the promises you have made in this Agreement, or if you are subject to any proceeding under a Bankruptcy procedure or similar laws, you will be in default and we may, in our sole discretion and with or without prior notice, restrict or terminate Services and/or terminate this Agreement, in addition to all other remedies available to us.
Upon termination of this Agreement and/or your Services, your right to use the Services immediately ceases. You shall have no right and we will have no obligation thereafter to forward any unread or unsent messages to you or any third party. We may require reactivation charges to renew Services after termination or suspension.
Upon termination, you are responsible for paying all amounts and charges owing under this Agreement.
Accounts will be terminated if we are not able to confirm an order by phone and do not receive any replies from the account holder.
9. Account Changes
You may change Service features or Service plans by notifying us in writing or by telephone. All requests need to provide name, address, account number, and administrative password or be submitted from the original email address on file.
10. Ownership of Local Number
CIRCLE Cloud Communications is the owner of any local telephone number assigned to you by CIRCLE or transferred by you to CircleIP.com (“Local Number”). Some phone numbers ported to CIRCLE may be transferable outside of CIRCLE after usage. Prior to termination of your Account for any reason, you may request to transfer your ported Local Number to another carrier. If you fail to transfer your Local Number to another carrier prior to terminating your Account, then following the termination of your Account, your Local Number becomes property of CIRCLE. If you initiate the transfer during a free trial period, you will be required to convert your account to a paid account while waiting for the transfer to complete. It is your responsibility to have your Local Number transferred to another carrier prior to canceling your Account.
11. Modification to Prices or Billing Terms
CIRCLE reserves the right, at any time, to change its prices and billing methods for Materials, Content, Services and Accounts, effective immediately upon posting on the Site or by e-mail delivery to you. CIRCLE will never modify or change terms without notifying you.
12. Modification; Assignment
CIRCLE may change or modify this Agreement from time to time, but any such change (a) will be made in good faith, and (b) if significant (as determined in the sole discretion of CIRCLE), will only be made after first providing you with notice of the change. You can review the most current version of this Agreement at any time at our Site (CircleIP.com). If you do not agree to a significant change, you may terminate this Agreement by giving us written notice within 15 days of receipt of our notice of such significant change. No hand-marked changes on this Agreement or any amendment by you will be valid unless we accept the changes in writing. Delivery by facsimile transmission (fax) of a copy of a modification of this Agreement shall be effective as delivery of an original.
We may assign all or part of our rights or duties under this Agreement in connection with a sale of all or substantially all the assets of CIRCLE to a third party without notice to you; provided any such third party shall be obliged to honor the terms of this Agreement. You may not assign this Agreement without our prior written consent.
14. NO WARRANTIES
THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS ARE PROVIDED “AS IS.” WE MAKE NO WARRANTIES REGARDING THE MATERIALS, CONTENT, SERVICES AND ACCOUNTS WHATSOEVER AND DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OR TRADE. WE DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties. If you rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by CIRCLE, your sole remedy for such reliance is against the third person making such representation or warranty.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL CircleIP.com, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF OR RELATING TO (i) YOUR INABILITY TO USE THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (ii) YOUR MISUSE OF THE MATERIALS, CONTENT, SERVICES OR ACCOUNTS; (iii) NONPERFORMANCE OR A FAILURE OF THE SERVICES CAUSED BY ACTS OR OMISSIONS OF ANOTHER SERVICE PROVIDER, (iv) EQUIPMENT OR SOFTWARE FAILURE OR MODIFICATION; (v) TELECOMMUNICATIONS OR COMPUTER EQUIPMENT FAILURES, OR (vi) ACTS OF NATURE, OR OTHER CAUSES BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL APPLY EVEN IF CIRCLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CIRCLE ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT YOUR ACCESS TO AND USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNTS (1) WILL BE UNINTERRUPTED OR ERROR FREE; (2) IS FREE OF VIRUSES, UNAUTHORIZED CODE, OR OTHER HARMFUL COMPONENTS; (3) IS SECURE; OR (4) WILL MEET YOUR SATISFACTION. YOU ARE RESPONSIBLE FOR TAKING ALL PRECAUTIONS YOU BELIEVE NECESSARY OR ADVISABLE TO PROTECT YOU AGAINST ANY CLAIM, DAMAGE, LOSS OR HAZARD THAT MAY ARISE BY VIRTUE OF YOUR USE OF THE SITE, MATERIALS, CONTENT, SERVICES AND ACCOUNT.
IN NO EVENT SHALL CIRCLE, ITS PARENTS, SUBSIDIARIES, AFFILIATES AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM USE OF THE SERVICES, OR ANY EQUIPMENT USED IN CONNECTION WITH THE SERVICES.
IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, CIRCLE SHOULD HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS, HARM OR DAMAGE, YOU AND CIRCLE AGREE THAT IN NO EVENT SHALL LIABILITY OF CIRCLE TO YOU FOR ANY REASON EXCEED OUR SERVICE CHARGES DURING THE AFFECTED PERIOD GIVING RISE TO SUCH LIABILITY.
YOU AND CIRCLE AGREE THAT THIS SECTION 17 OF THE AGREEMENT, “LIMITATION OF LIABILITY”, IS AN AGREED ALLOCATION OF RISK BETWEEN YOU AND CIRCLE. YOU ACKNOWLEDGE THAT, ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, CIRCLE WOULD NOT PROVIDE THE SITE, MATERIALS, CONTENT, SERVICES, OR ACCOUNTS TO YOU.
THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS CIRCLE, ITS PARENTS, SUBSIDIARIES, AFFILIATES, AND THEIR RESPECTIVE MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, AGENTS AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS’ FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM, INCURRED AS A RESULT OF, OR IN ANY MANNER RELATED TO (A) YOUR USE OF THE SERVICES, (B) ANY OTHER PERSON’S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF CircleIP.com OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS INDEMNIFICATION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
17. Quality Of Service
CIRCLE service is provided both over the internet as well as dedicated CIRCLE IP gateways and network connections. Although nearly all broadband is sufficient, CIRCLE cannot guarantee quality of service to sites using “best effort” Internet access, wireless access, or international locations with spotty or unreliable Internet connectivity. In the event a site loses connectivity, CIRCLE shall not be responsible for any loss related to your unreceived phone calls, faxes, and other communications. In general, connectivity via internet is your responsibility. Choosing stable internet service providers, installing reliable network equipment that prioritizes voice packets over data, implementing certified LAN cabling systems and using CIRCLE certified and recommended telephones and applications are all important for giving your users the best experience. By using CIRCLE services and datacenters, you recognize that you are using a cloud based telecommunications service that is reliant on the quality of internet access and network equipment you are using. You also recognize that companies and equipment on the internet between you and your services at the CIRCLE Datacenters could be hampered, throttled, or even blocked by these companies or equipment. CIRCLE engineering and Partner Care will help with potential quality issues that might arise and may recommend proven alternative local or national services or equipment to give your team the best user experience.
18. Maintenance, Upgrades, & Datacenter
CIRCLE nationwide datacenters are monitored and maintained around the clock. As CIRCLE services are hardware and software based; datacenter maintenance, updates, and upgrades will be necessary from time to time. Maintenance services are performed off hours Japan standard time (normally early Sunday or late Saturday). During these times, system access may be intermittent. These procedures will never be performed during Japan business hours (9AM-1800OM), except upon request of individual corporate users.
Chances of system outages are extremely low. However, in the event that CIRCLE service is inaccessible due to CIRCLE data center issues, CIRCLE at it’s sole discretion may provide additional value-added services at no charge or credit time system was unavailable to your next monthly bill.
CIRCLE IS A BUSINESS PHONE SERVICE. CIRCLE IS CLOUD BASED AND NOT A “DIAL-TONE” PROVIDER. IN THE EVENT OF AN EMERGENCY WHILE USING YOUR SERVICES, HANG UP AND DIAL “119”, “110” OR THE APPROPRIATE EMERGENCY SERVICE PROVIDER. YOU MUST USE THE TELEPHONE SERVICE PROVIDED BY YOUR LOCAL CARRIER TO MAKE A 119/110 CALL. Calls to emergency services will only bring help to one of CIRCLE’s datacenters.
20. Force Majeure
Either party shall be excused from any delay or failure in performance hereunder, other than the payment of moneys, caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of nature, earthquake, fire, flooding, riots, terrorism, war or government requirements.
CIRCLE may also monitor or record calls passing through its networks and systems for troubleshooting and/or service quality control checks required for the rendition of the services provided to its customers.
22. Cooperation With Government Authorities
If necessary and in accordance with applicable law, CIRCLE may be required to cooperate with national authorities to protect this Site, Materials, Content, Services, Accounts, visitors, customers, CIRCLE, its parents, subsidiaries, affiliates and their respective members, managers, directors, officers, employees, stockholders and agents and operational providers, from the unauthorized use of this Site, Materials, Content, Services and Accounts.
23. Links to Other Materials
The linked sites are not necessarily under the control of CircleIP.com. CircleIP.com is not responsible for the content of any linked site or any link contained in a non-affiliated linked site. CIRCLE reserves the right to terminate any link or linking program at any time. CIRCLE has selected the links for your convenience. The selection or omission of links is not intended to endorse any particular companies or products. If you decide to access any of the third party sites linked to this Site, you do so entirely at your own risk. Any links to any portion of the Site shall be the responsibility of the linking party, and CIRCLE shall not be responsible for notification of any change in name or location of any information on the Site.
Except as otherwise provided in this Agreement, notices and other communications under this Agreement shall be in writing and shall be delivered, mailed by first-class mail, postage pre-paid or sent by facsimile or electronic mail, addressed, (a) if to you, at the address as kept in our files or at such other address as you shall have furnished to us in writing, or (b) if to us at 13-4 Kodenmacho Nihonbashi, Chuo-ku, Tokyo 103-0001 JAPAN, attention Partner Care Team. Your notice must specify your name and Account. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if sent by facsimile, when sent and receipt is telephonically confirmed or (iii) if given by any other means (including, without limitation, by air courier), when delivered at the address specified above. Oral notices shall be deemed effective on the date reflected in our record
25. Governing Law, Jurisdiction and Venue
This Agreement shall be governed by and construed in accordance with the laws of Japan and under the jurisdiction of Tokyo District Court.
You and CIRCLE agree that any suit, action or proceeding arising out of or relating to this Agreement shall be instituted only in Japan. You and CIRCLE each waive any objection you or CIRCLE may have now or hereafter to the laying of the venue of any such suit, action or proceeding, and irrevocably submit to the jurisdiction of any such court in any such suit, action or proceeding.
26. General Information
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.
27. Reasonable Use Policy
All CIRCLE Hosting.com plans 1) May only be used for normal business use, 2) Are provided only for live dialog between two individuals, 3) Include international calling, which is available at an additional per minute rate. CIRCLE plans may not be used for any of the following prohibited uses:
Trunking or forwarding your CIRCLE number to another phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.
Spamming or blasting (e.g., sending 100 or more bulk and/or junk voicemail or faxes simultaneously).
Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 9900 numbers, sports-line numbers, etc.).
Auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls).
CIRCLE reserves the right without prior notice to disconnect or suspend your Service if CIRCLE determines that your use of the Service violates this Reasonable Use Policy or if you consistently exceed 50,000 minutes per month or 50 concurrent calls at any time. CIRCLE reserves the right to terminate voice calls exceeding 6 hours duration and fax calls exceeding 3 hours duration without notice. CIRCLE reserves the right to add to, modify or amend the Reasonable Use Policy at any time for any reason in its sole discretion.
This Agreement constitutes the entire agreement between CircleIP.com and you with respect to your use of CIRCLE Site, Materials, Content, Services and your Account, and it supersedes all prior or contemporaneous communications and proposals, whether oral or written, between CIRCLE and you with respect thereto.
The failure of CircleIP.com to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.