Pastimes d/b/a GamerMats ("GamerMats" or "We") empowers the world's artists to earn money from their artwork by making it immediately available for sale without giving up control of their rights. Artists first, we understand the importance of representing one's work with quality and respect, and we also believe it is essential that all GamerMats users respect the copyright and other intellectual property rights of others. Whether an artist, a customer, or even if you're just browsing, please respect the intellectual property rights of all the works you see or buy on GamerMats. Please be aware that when you post your work to GamerMats, it will be publicly available for the world to view, or buy as a product. IT IS YOUR RESPONSIBILITY TO MAKE SURE THAT YOU ARE UPHOLDING YOUR LEGAL RESPONSIBILITIES AND NOT VIOLATING ANYONE’S RIGHTS OR BREAKING ANY LAWS BY PUBLISHING OR OFFERING YOUR WORK FOR SALE THROUGH GAMERMATS.
CONTENT, COPYRIGHT & INTELLECTUAL PROPERTY POLICIES
You understand that all information, images, pictures, data, text, music, sound, photographs, graphics, video, messages, or other materials submitted, posted, published, displayed, performed, or offered for sale through the GamerMats Services ("Content"), whether publicly posted or privately transmitted, is protected by copyright and other intellectual property rights.
You understand that you will be exposed to Content and may purchase Products from a variety of GamerMats users and that you rely on the Content and purchase Products at your own risk. GamerMats does not prescreen Content or Products and is not responsible for examining or evaluating any Content or Products offered through the GamerMats Services, including without limitation, their accuracy, usefulness, or safety, or for determining whether the party offering the Content or Products for sale has obtained all required rights to do so. Without limitation of the foregoing, while we try to offer reliable data, we cannot promise that the Content on the Site will always be accurate and up-to-date. You further understand and acknowledge that you may be exposed to Content that is offensive, indecent or objectionable and that we may not be able to confirm the identity of other registered users or prevent them from acting under false pretenses or in a manner that infringes the rights of any person. YOU HEREBY WAIVE ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST GAMERMATS WITH RESPECT TO ANY ACTIVITIES, CONTENT, PRODUCTS, ACTIONS OR INACTIONS OF ANY THIRD PARTY IN CONNECTION WITH THE GAMERMATS SERVICES, INCLUDING WITHOUT LIMITATION, ANY ILLEGAL, DEFAMATORY, OFFENSIVE, OR UNAUTHORIZED CONDUCT BY ANY OF THE GAMERMATS SERVICES’ USERS.
As between you and GamerMats, you own all and retain all rights in your Content. You hereby grant GamerMats and its affiliates a worldwide, royalty-free, nonexclusive, assignable license, with right of sublicense, to use, publicly display and publicly perform, publish, reproduce, modify, and distribute your Content in any format or medium now known or later developed for the purpose of promoting your Content, producing and promoting your Products, and providing the other GamerMats Services to you.
YOU, AND NOT GAMERMATS, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR CONTENT THAT YOU MAKE AVAILABLE AND ALL PRODUCTS YOU OFFER FOR SALE THROUGH THE GAMERMATS SERVICES, INCLUDING WITHOUT LIMITATION, THAT YOU OWN OR HAVE OBTAINED ALL REQUIRED INTELLECTUAL PROPERTY AND OTHER RIGHTS IN YOUR CONTENT, INCLUDING WITHOUT LIMITATION, THE RIGHT TO MANUFACTURE, DISTRIBUTE AND SELL PRODUCTS THAT INCLUDE YOUR CONTENT.
You represent and warrant that:
- you own all intellectual property rights in your Content or that you have obtained all copyrights, trademark rights, rights of publicity and other rights required for you to make your Content available through the GamerMats Services, to manufacture, distribute and sell Products that include your Content and to grant GamerMats the rights granted to it in these Terms;
- your Content and the manufacture, distribution and sale of Products that include your Content does not and will not infringe the intellectual property rights or other rights of any person or entity, including without limitation any copyright, moral rights, trademark, patent, right of publicity or right of privacy;
- your Content does not contain material that is false, inaccurate, misleading, incomplete, defamatory or libelous obscene, pornographic, indecent, harassing, threatening, harmful, invasive of privacy, in violation of anyone’s rights, including their privacy or publicity rights, abusive, inflammatory or otherwise objectionable;
- your Content is accurate, is not misleading or deceptive and does not offer or disseminate fraudulent goods, products, services, schemes, or promotions.
GamerMats reserves the right to prescreen your Content (but has no obligation to do so), to review and remove your Content from the Site, to suspend or cancel your account, and to cancel the GamerMats Services provided to you at any time in its sole discretion. GamerMats has a zero tolerance policy for intellectual property infringement. If you submit Content or offer Products for sale that GamerMats, in its sole discretion, believes may infringe another party’s intellectual property rights, GamerMats may immediately terminate your account, in addition to any other remedies it may have.
Procedure for Reporting Infringements of Copyright under the Digital Millennium Copyright Act, 17 U.S.C. 512 ("DMCA") or Infringements of Other Intellectual Property Rights:
GamerMats has a zero tolerance policy for infringement of copyrights and other intellectual property rights. If you believe in good faith that any Content or Products made available through the GamerMats Services infringes upon your intellectual property rights, you may submit a notice of claimed infringement to us (a "NOCI") by providing the following information in writing to our designated Intellectual Property Rights Agent (listed below) ("Designated Agent"):
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or other intellectual property right that has been allegedly infringed;
- Identification of the works claimed to have been infringed, or if this is a single notification of a copyright infringement claim covering multiple copyrighted works on the Site, as permitted under the Digital Millennium Copyright Act, 17 U.S.C. 512 ("DMCA"), a representative list of such works on the Site;
- Identification of the Content or Product that is claimed to be infringing or to be the subject of infringement activity and that is to be removed or access to which is to be disabled, including information reasonably sufficient to permit GamerMats to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, including address, telephone number and e-mail address;
- A statement that the complaining party has a good faith belief that the use of the Content or Product is not authorized by the copyright owner or other intellectual property rights owner, its agent, or the law; and
- A statement made under penalty of perjury that the information in the NOCI is accurate and that the complaining party is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
GamerMats's Designated Agent can be contacted here or at the following address:
Attention: NOCI Request
8502 West Golf Road
Niles, IL 60714
You acknowledge that if you fail to comply with all of the above notice requirements of this Section, your NOCI may not be valid.
When a complete and proper NOCI is received by the Designated Agent, it is GamerMats's policy to expeditiously investigate the claim and take appropriate action, as determined by us in our sole discretion. Such action may include without limitation: (1) removing or disabling access to the Content, Product or other material identified in the NOCI; (2) notifying the applicable GamerMats user that we have removed or disabled access to such material; (3) cancelling orders for Products that include the Content identified in the NOCI; or (4) terminating such GamerMats user’s account.
Only notices of suspected intellectual property rights infringement should be sent to the Designated Agent. For all other requests for technical support, feedback, comments, and other communications, please contact Member Support.
Procedure to Supply a Counter-Notice to the Designated Agent:
If you, as the GamerMats user, believe that the Content or Product that was removed or to which access was disabled or for which orders were cancelled is not infringing, or if you believe you have obtained all required rights from their owners, the owners’ agent, or pursuant to the law, you may send a counter-notice containing the following information to the Designated Agent:
- your physical or electronic signature;
- Identification of the Content or Product that has been removed or to which access has been disabled and the location at which the Content, Product or other material appeared before it was removed or access to it was disabled;
- A statement, under penalty of perjury, that you have a good faith belief that the Content or Product was removed or disabled as a result of mistake or a misidentification of the Content or Product to be removed or disabled; and
- your name, address, telephone number, e-mail address and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside the United States, for any judicial district in which GamerMats may be found, and that you will accept service of process from the person who provided the NOCI to GamerMats or such person’s agent. If a counter-notice is received by the Designated Agent, GamerMats may send a copy of the counter-notice to the original complaining party informing the complaining party that GamerMats may replace the removed Content or Product, cease disabling it and/or reinstate cancelled orders in 10 business days following receipt of the counter-notice unless the complaining party notifies the Designated Agent that it has filed an action seeking a court order to restrain the GamerMats user from engaging in infringing activity relating to the Content or Product that was the subject of the NOCI.
GRANT OF RIGHTS AND USER CONDUCT
So long as you comply with these Terms, GamerMats hereby grants you a limited, non-exclusive, revocable, non-transferable license, without right of sublicense, to use the GamerMats Services solely for their intended purpose. GamerMats is founded on respect for others, and we take this very, very seriously. While using the Services you agree to:
- provide and maintain and update your account information and to keep it true, accurate, current, and complete at all times;
- ensure that your access to the GamerMats Services is not illegal or prohibited by laws that apply to you;
- take your own precautions to ensure that the process that you employ for accessing the GamerMats Services and any Linked Website (defined below) does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system.
You agree that you shall not, and shall not instruct, permit, allow or induce any person, directly or indirectly:
- post Content or Products in an inappropriate category or areas of the GamerMats Services;
- fail to deliver payment, services or Product for collaborations posted by you unless a clear typographical error is made or you cannot authenticate the recipient's identity;
- interfere with another GamerMats user's Content or Products;
- circumvent or manipulate our fee structure, the billing process, or fees owed to GamerMats;
- take any action that may undermine any ratings system that GamerMats may use;
- transfer your GamerMats account and user identification to another party without our prior written consent;
- distribute viruses or any other technologies that may harm GamerMats or the interests or property of GamerMats users;
- use, reproduce, copy, modify, adapt, create derivative works from, publish, print, transmit, distribute, perform, display, sell, license, rebrand, or otherwise transfer (i) any portion of the GamerMats Services or Content made available through the GamerMats Services other than your own Content, without the owner’s express written permission; or (ii) any GamerMats copyrights or trademarks;
- remove any copyright, trademark or other proprietary rights notices contained in or on the GamerMats Services or any Content other than your own Content;
- harvest or otherwise collect information about other users of the GamerMats Services, including email addresses, without their consent;
- impersonate any person or entity, including, but not limited to, a GamerMats official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- frame, mirror, or otherwise simulate the appearance or function of the GamerMats Services or any other person’s Content or forge headers, icons or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or other proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available through the GamerMats Services any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
- upload, post, email, transmit or otherwise make available through the GamerMats Services any material that contains adware, malware, spyware , software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
- "stalk" or harass or harm another person.
The Site is controlled and offered by GamerMats from its facilities in the United States of America and data related to the GamerMats Services is hosted in the United States. If you access or use the GamerMats Services from other jurisdictions, you do so at your own risk. GamerMats makes no representations that the GamerMats Services are appropriate or available for use in other locations. You are responsible for knowing and complying with the laws of your jurisdiction. If such laws conflict with your use of the GamerMats Services, you are not permitted to use them.
REGISTRATION AND ACCOUNT INFORMATION
In order to make available Content or Products through the GamerMats Services, whether for sale or not, you must create a GamerMats account. When creating a user account, you must provide accurate, complete and updated registration information. You may not select a user name that is vulgar, offensive, obscene or attempts to impersonate another person. You may never use another person's GamerMats account without permission from that user. You are solely responsible for all the activity that occurs through your account, including the activities of others and regardless of whether such activities are authorized, and for keeping your account password secure. You agree to notify GamerMats immediately of any breach of security or unauthorized use of your account. Although GamerMats will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of GamerMats or others due to such unauthorized use. We reserve the right to require you to alter your password if we believe your password is no longer secure. GamerMats reserves the right to refuse to provide you with an account or cancel your account in its sole discretion.
You acknowledge and agree that GamerMats may access, retain and disclose your account information and your Content if required to do so by law or in a good faith belief that such access, retention or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms; (iii) respond to a NOCI; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of GamerMats, its users or the public.
FEES AND SERVICES
When you sell a Product, or use one of the GamerMats Services for which we charge a fee, you will be charged the then-current applicable fee, which we may change in our sole discretion from time to time. We may also choose to temporarily change the fees for GamerMats Services for promotional events or new services. Changes to our fees are effective after we provide you with at least fourteen (14) days' notice using the process set forth in the Notice provisions below. For information about our current fee structure and payment terms, please refer to the information available on the Site and made available through your account page once your identity has been verified.
Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes, including any sales taxes, associated with your use of the GamerMats Services and sale of Products.
DISCLAIMER OF WARRANTIES AND LIABILITY
THE GAMERMATS SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE", AND WITH ALL FAULTS. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO OR THAT THE GAMERMATS SERVICES WILL BE ERROR FREE OR THAT ALL TRANSACTIONS WILL BE COMPLETED, THE OPERATION OF THE GAMERMATS SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. ACCORDINGLY, TO THE EXTENT LEGALLY PERMITTED, WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, NONINFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. YOU ASSUME ALL RISKS ASSOCIATED WITH YOUR USE OF THE GAMERMATS SERVICES.
WE ARE NOT AND SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF MONEY OR PROFITS, GOODWILL, DATA, CONTENT OR REPUTATION, OR ANY PROPERTY DAMAGE OR PERSONAL INJURY WITHOUT REGARD TO THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTIONS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE GAMERMATS SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. YOU WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST US ARISING OUT OF YOUR USE OF THE GAMERMATS SERVICES.
REGARDLESS OF THE PREVIOUS PARAGRAPH, IF WE ARE FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (I) THE TOTAL FEES YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND (II) $100.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE SCOPE AND DURATION OF OUR WARRANTIES AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
You acknowledge that any agreement you make with another party through the GamerMats Services is strictly between you and such party and GamerMats is not a party to that agreement. If you have a dispute with another such party, you hereby release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, liabilities, demands and damages (actual and consequential) of every kind and nature, known or unknown, arising out of or in any way connected with such dispute. You agree that GamerMats has no control over and does not guarantee the delivery of the advertised collaborations and that GamerMats shall be released from any and all damages resulting from the failure to receive any benefits of an anticipated collaboration.
If you use any of our trademarks in reference to our products or services, you must include a statement attributing that trademark to us and must comply with our guidelines regarding the use of our trademarks. You must not use any of our trademarks in or as the whole or part of your own trademarks; in connection with activities, products or services which are not ours; in a manner which may be confusing, misleading or deceptive; or in a manner that disparages us or our information, products or services (including the GamerMats Services).
The GamerMats Services may contain links to other websites that are not owned or controlled by us ("Linked Websites"). Those links are provided for convenience only and may not remain current or be maintained. We do not screen Linked Websites and are not responsible for the content, security, operation, or use of any Linked Websites or the products or services that may be offered or obtained through them. Further, We are not responsible for the content or privacy practices associated with Linked Websites and it is your responsibility to review those policies before accessing those sites. If you access a Linked Website, you do so at your own risk.
Our links with Linked Websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent we may explicitly stipulate to the contrary on the GamerMats Services. You expressly relieve us from any and all loss, damages or other liabilities you incur as a result of your use of any Linked Website.
ACCESS AND INTERFERENCE
Much of the information available through the GamerMats Services is updated on a real-time basis and is proprietary or is licensed to GamerMats by our users or third parties. All intellectual property rights in the GamerMats Services (including without limitation, the software and systems underlying the GamerMats Service, and all text, graphics, logos, icons, sound recordings and software) are owned by or licensed to us and we reserve all rights in them. You agree that you will not use any robot, spider, scraper or other automated means to access the GamerMats Services for any purpose without our express written permission.
Additionally, you agree that you will not:
- take any action that imposes or may impose (as determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- interfere or attempt to interfere with the proper working of the GamerMats Services or any activities conducted through them; or bypass any measures we may use to prevent or restrict access to the GamerMats Services; or
- decompile, disassemble or otherwise reverse engineer the GamerMats Services or any portion thereof, or otherwise attempt to derive the source code or other trade secrets embodied in the GamerMats Services.
TERMINATION OF ACCOUNT
GamerMats may suspend or terminate your access to all or any part of the GamerMats Services or your account at any time, with or without cause, with or without notice, effective immediately. Without limitation of the foregoing, GamerMats may terminate your access to the GamerMats Services if you are determined to be, in GamerMats's sole discretion, a repeat infringer of these Terms. GamerMats may, but shall not be obligated to, give you one warning if you have violated these Terms prior to terminating your account.
You may terminate these Terms at any time by terminating your use of the GamerMats Services.
On termination of these Terms for any reason, the rights and licenses granted to you hereunder will immediately terminate and the provisions of these Terms that by their nature and context are intended to survive termination shall survive, including, without limitation, the following provisions: Content, Copyright & Intellectual Property Policies, Account Information, Disclaimer of Warranties and Liability, Release, Linked Websites, Access and Interference, Privacy, Indemnity, No Agency, Ability to Accept Terms, Notices, Resolution of Disputes, and General. GamerMats shall have no liability to you for any damages, loss of profits or other claims arising from the termination or suspension of your access to the GamerMats Services or your account.
Without limitation of the foregoing, GamerMats shall have the right to retain copies of your Content in its archives for its internal business purposes and legal purposes.
MODIFICATIONS TO THE GAMERMATS SERVICES AND TERMS
GamerMats reserves the right to monitor, modify or discontinue the GamerMats Services, and to block, modify, publicly comment on, or delete any Content submitted to the GamerMats Services by any party, at any time without notice in its sole discretion; provided however, that GamerMats has no obligation to update, store, maintain or correct any information or Content on the GamerMats Services.
You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from and against any and all claims, demands, liabilities, damages, losses, fines, and expenses (including but not limited to, reasonable attorneys' fees and other professional fees and costs of investigation), arising from or in any way related to (a) your Content or your use of the GamerMats Services, including without limitation, your sale of any Products; (b) your (or anyone using your account’s) breach of these Terms; or (c) your violation of any law or the rights of any third party, including without limitation, any intellectual property rights or privacy rights. You may not settle any claim in any manner that binds GamerMats without our express prior written consent. GamerMats may withhold any amounts due to you pending the resolution of any claim subject to this indemnity and may apply such amounts to the resolution of such claim.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Alternatively, we may give you legal notice by mail to the address provided during the PayPal verification process. In such case, notice shall be deemed given three days after the date of mailing.
RESOLUTION OF DISPUTES
If a dispute arises between you and GamerMats, you and GamerMats agree that the parties will resolve any such claim (a "Claim") in accordance with one of the subsections below or as GamerMats and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may have arising out of or related to these Terms or your use of the GamerMats Services must be filed within one (1) year after the claim or cause of action arose.
Law and Forum for Disputes - These Terms shall be governed in all respects by the laws of the State of Delaware as they apply to agreements entered into and to be performed entirely within the State of Delaware between Delaware residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against GamerMats must be resolved by a court located in the state of Delaware, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within the state of Delaware for the purpose of litigating all such claims or disputes and waive any objection to such jurisdiction, including forum non conveniens.
Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, it shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions (the specific manner shall be chosen by the party initiating the arbitration); b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Improperly Filed Claims - All claims you bring against GamerMats must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, GamerMats may recover attorneys' fees and costs up to the greater of (i) its actual attorneys' fees and costs; and (ii) $1,000, provided that GamerMats has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You may not assign or transfer your rights or obligations under these Terms. Any purported transfer or assignment in violation of the foregoing will be invalid. We may assign these Terms and our rights and obligations under them upon notice to you in accordance with the Notices Section. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure or delay to exercise or enforce any right or provision of these Terms or any rights under applicable law shall not constitute a waiver of any of those provisions or rights.