Terms of Service

Last Updated: December the 10th, 2019

These terms of service, together with our Privacy Policy which can be found at https://octave.io/, (collectively, the “Terms of Service”), govern your or the entity on whose behalf you are agreeing to these Terms of Service ("Customer")’s access to and use of the Services (as defined below) provided by OCTAVE SAS-SIRET 840 342 174 RCS EVREUX. or any of its affiliates (collectively, "octave.io"), and Customer's access to and use of octave.io's website ("Website").

These Terms of Service take effect on the earlier of: when Customer issues to octave.io any purchase order for the Services ("Order"), or when Customer clicks the “I accept” button or check box presented with these Terms of Service (the "Effective Date"). You represent and warrant that you have full legal authority to bind Customer to these Terms of Service.

In the event that these Terms of Service conflict with the provisions of any Order, the provisions of these Terms of Service shall prevail unless octave.io and Customer expressly agree otherwise in writing and this is signed by both parties.

octave.io may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting notice of such changes on its website, or by any other reasonable means. Customer’s continued use of the Services after octave.io’s provision of a notice of an updated version of the Terms of Service shall constitute Customer’s consent to such updated Terms of Service.

1. Customer Access to and Use of the Services

Customer may access and use the Services and the Website solely subject to and in accordance with these Terms of Service. Customer will comply with all applicable laws, rules, and regulations in connection with Customer's use of the Services and the Website. As used in these Terms of Service, the term "Services" means the automated data warehouse services made available by octave.io to Customer together with any other product or service that may be provided by octave.io to Customer from time to time under these Terms of Service.

2. Customer Account

Customer shall be solely responsible for (i) its employees’, subcontractors’ or anyone else engaged by Customer (collectively, "Representatives"), access to and use and security of: (i) Customer’s account associated with the Services (“Account”), (ii) data and other content uploaded by Customer and/or its Representatives for processing by the Services (“Customer Data”), and (iii) results of the Services (“Customer Results”, and together with the Customer Data, “Customer Content”).

3. Customer Content

As between the parties, Customer or its licensors owns all right, title and interest in and to Customer Content. Customer consents to the access and use of Customer Content by octave.io and its Third Party Service Providers, solely to provide the Services and in accordance with these Terms of Service, including the Privacy Policy. In addition, Customer grants octave.io the right to use Customer's name, mark and logo on the Website and in any octave.io publication or marketing materials, to identify Customer as a octave.io customer. Any other use of Customer’s name, mark or logo shall require the express written consent of Customer.

4. Responsibility for Customer Content and Copyright Protection

Customer shall be solely responsible for the legality and appropriateness of all Customer Content and for compliance with all laws and regulations applicable to Customer Content, including without limitation any import, re- import, export, or re-export control laws or regulations, copyright laws or regulations, and privacy or data protection laws and regulations that apply specifically to Customer and which are not generally applicable to personal data. Without derogating from the generality of the foregoing, octave.io does not monitor Customer Content, and Customer is solely responsible for monitoring Customer Content and for properly handling and processing notices sent to Customer (including any of its affiliates) by any person claiming that Customer Content violates such person's rights including notices pursuant to the Digital Millennium Copyright Act.

5. No Sensitive Data

Customer represents and warrants to octave.io that Customer shall not upload or otherwise transfer to the Services any Customer Data that may constitute a special category of data pursuant to any applicable information security, data protection, privacy and/or other statute, act, law, regulation or directive, such as sensitive personal data (including without limitation personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade- union membership, criminal convictions, health, or sex life) or any Customer Data that constitute protected health information (as defined in the United States HIPPA or other similar statutes) or any bank account, credit card, social security or other identifying governmental numbers as set forth in the Graham-Leach Bliley Act or other similar statutes.

6. Personal Data Protection

The provisions of the Privacy Policy which can be found at http://octave.io/privacy and relating to the protection of Personal Data (as defined in the GDPR) under the EU General Data Protection Regulation ("GDPR"), and possibly other data protection laws, shall apply to any Personal Data which may be included in Customer Content. The terms of the Privacy Policy are incorporated herein by reference and shall constitute an integral part of these Terms of Service.

7. Availability of the Services

octave.io will make commercially reasonable efforts to maintain a 90% uptime. You may not be able to access or use the Service(s) (a) during planned downtime for upgrades and maintenance to the Service(s) (of which We will use commercially reasonable efforts to notify You in advance through Our Service(s)) (“Community”), or (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of “force majeure”, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks. We will use commercially reasonable efforts to schedule Planned Downtime for weekends and other off-peak hours.

8. Customer Content Security

Without limiting Section 24 or Customer's obligations under Sections 4 and 5, octave.io will implement commercially reasonable security measures designed to protect the Customer Content against accidental or unlawful loss, alteration, access or disclosure.

9. Third Party Services

Certain components of the Services may be services provided by third party service providers (respectively, "Third Party Services" and "Third Party Service Providers"). Subject to and in accordance with the terms of the Privacy Policy, Octave.io may, in Octave.io’s sole discretion, retain and/or replace Third Party Services and/or Third Party Service Providers from time to time.

10. Third Party Cloud Infrastructure

Customer acknowledges and agrees that, in connection with the Services, Customer's data will be stored on the cloud infrastructure of a Third Party Service Provider (the "Cloud Infrastructure Provider"). Therefore, Customer agrees at all times to access and use the Services according to and in compliance with the provisions of both these Terms of Service and the Cloud Infrastructure Provider Terms, and in a manner, that does not cause octave.io to be in breach of the Cloud Infrastructure Provider Terms. For purpose of these Terms of Service, "Cloud Infrastructure Provider Terms" means the legal terms of the Cloud Infrastructure Provider governing the use of the cloud infrastructure, including those legal terms located at https://www.ovh.com/fr/support/contrats/ , as in effect from time to time. OCTAVE.IO DOES NOT EXTEND ON BEHALF OF THE CLOUD INFRASTRUCTURE PROVIDER ANY WRITTEN OR ORAL WARRANTY OR GUARANTEE, NOR MAKE ANY REPRESENTATION OR CLAIM, WITH RESPECT TO THE CLOUD INFRASTRUCTURE OR THE DATA STORAGE SERVICES. AS PART OF THE PROVISION OF THE CLOUD INFRASTRUCTURE, THE CLOUD INFRASTRUCTUR PROVIDER SHALL BE RESPONSIBLE FOR IMPLEMENTING APPROPRIATE MEASURES TO ENSURE THE SECURITY OF CUSTOMER CONTENT, WHEN CUSTOMER CONTENT IS IN ITS POSESSION OR UNDER ITS CONTROL. NOTWITHSTANDING ANY OTHER TERM IN THESE TERMS OF SERVICE, OCTAVE SHALL BE LIABLE TOWARDS CUSTOMER AND THIRD PARTIES (INCLUDING DATA SUBJECTS) FOR THE CLOUD INFRASTRUCTURE, INCLUDING THE IMPLEMENTATION OF MEASURES AS DETAILED ABOVE, ONLY IF AND TO THE SAME EXTENT THAT THE CLOUD INFRASTRUCTURE PROVIDER IS LIABLE TOWARDS OCTAVE FOR THE PROVISION OF SUCH INFRASTRUCTURE.

11. BILLING, PLAN MODIFICATIONS AND Payments

11.1. Subscription Charges: Unless otherwise specified terms, except for freemium plan, all charges associated with Your Account (“Subscription Charges”) are due in full and payable in advance, in accordance with Section 11.2, when You subscribe to the Service(s). Unless specified quote, the Subscription Charges are based on the Plans. You choose and are payable in full until You terminate Your Account in accordance with Section 12. You will receive a receipt upon each payment. You may also obtain a payment receipt from within the Service(s). 11.2. Payment methods: You may pay the Subscription Charges through Your credit card, or other accepted payment method as specified in a Form. For credit card payments, Your payment is due immediately upon Your receipt of Our invoice. You hereby authorize Us or Our authorized agents, as applicable, to bill Your credit card upon Your subscription to the Service(s) (and any renewal thereof). 11.3. Renewal: Your subscription to the Service(s) will renew automatically for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service(s) for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences. You acknowledge and agree that, unless You terminate Your Account in accordance Section 12, Your credit card will be charged automatically for the applicable Subscription Charges 11.4. We use a third party service provider to manage credit card and other payment processing; provided, that such service provider is not permitted to store, retain or use Your payment account information except to process Your credit card and other payment information for Us. You must notify any change in Your credit card or other payment account information by updating Your Account through billing section 11.5. Refunds: Unless otherwise specified in these Terms or a Form or a Service Plan, all Subscription Charges are nonrefundable. No refunds shall be issued for partial use or non-use of the Service(s) by You 11.6. Upgrades and Downgrades: You may upgrade Your Account or downgrade within a Service Plan or between two Service Plans in accordance with the provisions below. Upgrades: You may upgrade Your Account at any time during Your Subscription Term. When You upgrade the new Subscription Charges become immediately applicable and Your credit card will be charged automatically. Downgrades: You may downgrade Your Account at any time during Your Subscription Term but before its renewal in accordance with Section 11.3 above. However, if You choose to modify Your Subscription Term after the Effective Date, You will not be able to downgrade Your Account during Your new Subscription Term as provided herein earlier. You agree that all downgrades in accordance with this Section 11.3 will be applicable only from the subsequent term. If You plan to downgrade Your Account, please use the “contact us” button in the octave.io apps. You understand that downgrading Your Account may cause loss of features or capacity of the Service(s). You agree that We will not be liable for any loss due to such downgrading of Your Account. You must ensure that You always opt for the Service Plan that suits Your business requirements. 11.7. Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying the Taxes that would be levied against You by government authorities. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced. 11.8. User Benefits: We may, at Our sole discretion, offer You certain benefits such as discounts on Subscription Charges, extension in Subscription Term for no extra payments from You, with regard to the Service(s). These benefits are specific to Your Account and the Service(s) identified while offering these benefits. They are not transferrable. The benefits may have an expiry date. If they do not have an expiry date, they will expire upon completion of twelve (12) months from their date of offer.

12. Right to Terminate or Suspend Services

If octave.io believes in its sole discretion that there may have been or may be a violation of Customer’s warranties or obligations under these Terms of Service, octave.io is authorized in its sole discretion and without any liability to monitor Customer's compliance, to immediately suspend or terminate the provision of Services to Customer, and/or to block the transmission of Customer Content which in octave.io’s reasonable opinion could violate applicable law, violate the rights of others, or subject octave.io to liability. In addition, if octave.io believes in its sole discretion that any Customer Content may have been or is at risk of being accessed by a third party without authorization, octave.io may take such Customer Content offline until the intrusion is resolved.

13. Term

Unless otherwise set forth in the applicable Order or octave.io's online "Billing Info", these Terms of Service will commence on the Effective Date and will remain in effect throughout the term(s), including any renewal term(s), specified in the applicable Order or online "Billing" (collectively, the “Term”), unless earlier terminated in accordance with these Terms of Service. At the conclusion of the Term, these Terms of Service will automatically renew for additional terms as detailed online or in the respective order form (each an “Additional Term”, and along with the Initial Term, the “Term”) unless earlier terminated as set forth in these Terms of Service.

14. TERMINATION

Customer may terminate these Terms of Service by providing written notice through CONTACT US button in the octave.io apps. Once written notice is provided, the cancellation will take effect upon the last day of the current Term. octave.io may terminate these Terms of Service immediately and without liability upon providing notice to Customer: (i) if octave.io believes that Customer has violated any provision of these Terms of Service or applicable law, (ii) if octave.io is threatened with a legal claim related to the provision of the Services, (iii) if octave.io’s relationship with a Third Party Services Provider terminates or requires octave.io to change, suspend or terminate the Services, (iv) if octave.io believes providing the Services could create a substantial economic or technical burden or material security risk, (v) in order to comply with applicable law or requests of governmental entities, or (vi) if octave.io determines that the use of the Services by Customer or octave.io's provision of any of the Services has become impractical or unfeasible. Customer may terminate these Terms of Service by providing written notice through CONTACT US button in the octave.io apps. Once written notice is provided, the Cancellation will take effect upon the last day of the current Term.

15. Effect of Termination

Upon termination of these Terms of Service, octave.io will provide Customer with reasonable access to, and the ability to extract, Customer Content for a period of 7 days of the effective date of termination. Following such 7 day period, octave.io will delete Customer Content and Customer's access to the Services.

16. Customer Representations and Warranties

Customer represents and warrants to octave.io that: (i) Customer has the requisite power and authority to enter into these Terms of Service and to perform all of its obligations under these Terms of Service, (ii) all Account information Customer has provided octave.io for the purpose of receiving the Services is complete and accurate, and Customer shall update its Account information to maintain the accuracy thereof throughout the Term, (iii) if Customer makes use of software not provided by octave.io, Customer has a written license agreement permitting Customer to use such software in connection with the Services, and octave.io shall have no responsibility for any liability or any problems caused to the Services in connection with Customer’s use of any such software, and (iv) Customer is and will remain throughout the Term in compliance with all applicable information security, data protection, privacy and/or other statutes, acts, laws, regulations and directives relating to its use of the Services.

17. octave.io Representations and Warranties.

octave.io represents and warrants to Customer that octave.io has the requisite power and authority to enter into these Terms of Service and to perform all of its obligations under these Terms of Service.

18. octave.io’s Ownership

octave.io or its licensors own and reserve all rights, title and interest in and to the Services, the Website, octave.io’s trademarks and service marks and all modifications to any of the forgoing, and all related worldwide intellectual property rights, whether registered or not and whether registerable or not.

19. Customer's License

In consideration for Customer’s full and punctual payment of the Fees (as defined below) and subject to Customer’s ongoing compliance with these Terms of Service, octave.io hereby grants Customer a limited, non-exclusive, non-transferable and non-sublicenseable license to access and use the Services.

20. RESTRICTIONS

Customer may not use the Services in any manner or for any purpose other than for its own internal use and as expressly permitted by these Terms of Service. Customer may not, and may not attempt to, and will not allow third parties to: (i) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services, (ii) reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Services, (iii) create multiple Accounts to simulate or act as a single Account or otherwise access the Services in a manner intended to avoid incurring Fees or otherwise breach these Terms of Service, (iv) resell, sublicense, or otherwise allow a third party's access to the Services, (v) copy any ideas, features, functions or content of the Services (other than Customer Content), or use the Services to create a competitive product or service, (vi) remove, alter or obscure any proprietary notices contained on or within the Services or the Website, (vii) monitor the availability, performance or functionality of the Services, or (viii) gain or attempt to gain unauthorized access to octave.io’s systems or network. Customer shall be fully responsible for its Representatives’ adherence to these Terms of Service. As a condition to making the Services available to Customer, Customer undertakes that it will not assert, authorize, assist or encourage any third party to assert against octave.io or its licensors, affiliates or users, any infringement or other claim in connection with the Services.

21. Suggestions

Should Customer provide octave.io with any ideas, feedback or suggestions (“Suggestions”) regarding the Services, including without limitation, bug fixes or improvements, octave.io will irrevocably own all right, title and interest in and to the Suggestions and will be free to use the Suggestions without any liability or payment to Customer and without Customer’s prior written consent. Customer hereby irrevocably assigns to octave.io all right, title and interest in and to Suggestions and agrees to provide octave.io with such reasonable assistance required in order to document, perfect and maintain octave.io’s rights in and to the Suggestions, at octave.io’s cost.

22. Confidentiality.

Customer agrees to hold in confidence and not to use or disclose any of octave.io’s Confidential Information except solely for the purpose of Customer’s authorized use of the Services in accordance with these Terms of Service. “Confidential Information” means the pricing terms contained in these Terms of Service and any and all non-public data or information, including all third party data or information, disclosed by or on behalf of octave.io to Customer in connection with the Services.

23. Disclaimer of Warranties

EXCEPT AS EXPRESSLY SPECIFIED IN THESE TERMS OF SERVICE, THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. OCTAVE, ITS LICENSORS, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, MAKE NO EXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND IN CONNECTION WITH THE SERVICES OR THE THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY, REPRESENTATION OR GUARANTEE THAT THE SERVICES OR THE THIRD PARTY SERVICES WILL BE UNINTERRUPTED, ERROR FREE, FREE OF HARMFUL COMPONENTS, OR THAT ANY DATA OR RESULTS, INCLUDING WITHOUT LIMITATION CUSTOMER CONTENT, WILL BE SECURE OR NOT LOST OR DAMAGED. WITHOUT DEROGATING FROM THE GENERALITY OF THE FOREGOING, OCTAVE, ITS LICENSORS, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THE RISKS INHERENT IN INTERNET CONNECTIVITY AND BIG DATA ANALYSIS AND PROCESSING THAT COULD RESULT IN THE LOSS OF CUSTOMER'S OR THIRD PARTIES' PRIVACY, DATA, RESULTS, CONFIDENTIAL INFORMATION AND PROPERTY. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT INTENDED FOR USE IN CONNECTION WITH THE OPERATION OF NUCLEAR FACILITIES, AIR TRAFFIC CONTROL OR LIFE SUPPORT SYSTEMS, WHERE THE USE OF OR FAILURE OF THE SERVICES COULD LEAD OR CONTRIBUTE TO DEATH, PERSONAL INJURY OR ENVIRONMENTAL DAMAGE.

24. Limitation of Liability.

IN NO EVENT SHALL OCTAVE, ITS LICENSORS, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR CLAIMS OF THIRD PARTIES, REGARDLESS OF THE CAUSE OF ACTION (INCLUDING WITHOUT LIMITATION CONTRACT OR TORT), EVEN IF ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS OF SERVICE, THE MAXIMUM AGGREGATE LIABILITY OF OCTAVE, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, ADVISORS, REPRESENTATIVES, LICENSORS, RESELLERS AND THIRD PARTY SERVICE PROVIDERS, TO CUSTOMER AND ALL THIRD PARTIES, UNDER ANY CAUSE OF ACTION, SHALL NOT EXCEED THE FEES ACTUALLY RECEIVED BY OCTAVE FROM CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT AND THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. CUSTOMER ACKNOWLEDGES THAT THIS FOREGOING LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THESE TERMS OF SERVICE AND ABSENT SUCH LIMITATION OCTAVE WOULD NOT PROVIDE THE SERVICES TO CUSTOMER OR ENTER INTO THESE TERMS OF SERVICE.

25. Indemnification.

Customer will defend, indemnify, and hold harmless octave.io and its licensors, and each of their respective officers, directors, employees, advisors and representatives, from and against any claims, damages, losses, liabilities, costs, fines and expenses (including attorneys’ fees) arising out of or relating to: (i) Customer’s actual or alleged breach of any provisions of these Terms of Services, the Cloud Infrastructure Provider Terms or of any applicable law, (ii) any activities held under Customer’s Account, including by unauthorized third parties; or (iii) Customer Content or the combination of Customer Content with other applications, content or processes, including any claim involving actual or alleged infringement or misappropriation of third party rights arising out of or in connection with Customer Content and including any actual or alleged claim that appropriate consents were not obtained from data subjects to the collection or processing of their personal data. octave.io shall notify Customer of any claim subject to indemnification, provided that octave.io's failure to do so shall not affect Customer obligations hereunder, except to the extent that octave.io's failure to promptly notify Customer materially delays or prejudices Customer ability to defend the claim. At octave.io's option, Customer will have the right to defend against any such claim with counsel of Customer’s choosing (subject to octave.io's written consent) and to settle such claim as Customer deem appropriate, provided that Customer shall not enter into any settlement without octave.io’s prior written consent and provided that octave.io may at any time elect to take over control of the defense and settlement of the claim upon written notice to Customer.

26. Privacy.

octave.io collects information about you or Customer through Customer's subscription to the Services and visit to and interaction with the Website. By subscribing to the Services and/or by visiting and interacting with the Website, you and Customer agree that octave.io may retain, use, and publish such collected information in accordance with the octave.io Privacy Policy which can be found at https://octave.io/privacy.

27. Force Majeure.

In the event that either party shall be delayed or prevented from the performance of any obligation hereunder by reason of strike, labor trouble, inability to procure materials, power failure, government or judicial order, riot, insurrection, declared or undeclared war, terrorist act, weather or other Act of God, or any other reason beyond such party’s control, then performance of such party’s obligations under these Terms of Service shall be excused for the period of such delay. The party affected by Force Majeure shall provide notice to the other party of the commencement and termination of the Force Majeure.

28. Government Rights.

In the event that either party shall be delayed or prevented from the performance of any obligation hereunder by reason of strike, labor trouble, inability to procure materials, power failure, government or judicial order, riot, insurrection, declared or undeclared war, terrorist act, weather or other Act of God, or any other reason beyond such party’s control, then performance of such party’s obligations under these Terms of Service shall be excused for the period of such delay. The party affected by Force Majeure shall provide notice to the other party of the commencement and termination of the Force Majeure.

29. No Third Party Beneficiary.

These Terms of Service do not create any third party beneficiary rights in any individual or entity that is not a party to these Terms of Service.

30. Miscellaneous.

These Terms of Service, together with our Privacy Policy to the extent applicable and entered into between Customer and octave.io, constitute the entire agreement between Customer and octave.io. These Terms of Service shall be governed by the internal laws of the state of France without regard of its conflict of laws rules, and the parties hereby submit to the exclusive jurisdiction of the courts of Evreux, France in connection with any dispute in connection with these Terms of Service, provided that octave.io shall be entitled to institute an action in any court of competent jurisdiction to obtain injunctive relief or otherwise protect or enforce its intellectual property rights or interests. All rights are cumulative. octave.io may freely assign any of its rights and obligation under these Terms of Service. Customer may not assign these Terms of Service without the prior written consent of octave.io. No delay or failure to take any action with respect to any breach of these Terms of Service shall constitute a waiver of such breach or any subsequent or other breach. All waivers must be in writing to be effective. If any provision of these Terms of Service is declared invalid or unenforceable, the remaining provisions of these Terms of Service shall not be affected thereby, and shall remain in full force.