Terms of service

The following Terms of Service (“Terms”) govern the use of the PriceLabs tool and software platform that provides revenue optimization, data analytics and other services for the accommodations industry (collectively the “Services”), and the website at pricelabs.co (the “Site”).  

By registering for, accessing or using the Site and/or Services, you agree to be bound by these Terms, which form a binding legal agreement between you and PriceLabs, Inc. (“PriceLabs,” “we,” “us” or “our”).  You also agree to be bound by the terms of our Privacy Policy, available on our website, which explains the use we are authorized to make of your personal information.  For the avoidance of doubt, PriceLabs does not share confidential user information with any other user.  By agreeing to these Terms, you consent to our collection, use, storage, and disclosure of information associated with your use of the Site and Services in accordance with the Privacy Policy.

If the individual accepting these Terms is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to these Terms and the Privacy Policy, in which case the terms “you” and “your” shall refer to such entity. If the individual accepting this agreement does not have such authority, or does not agree with these Terms or the Privacy Policy, such individual must not accept these Terms and may not use the Site or Services.

NOTE: THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION AND CLASS ACTION/JURY TRIAL WAIVER, THAT REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS. PLEASE READ THOSE PROVISIONS CAREFULLY BEFORE ACCEPTING THESE TERMS.

A. Eligibility

You must be at least 18 years of age to use the Services.  You further affirm that (a) you are not a resident of (and will not use the Services in) a country that the U.S. government has embargoed for use of the Services, nor are you named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations, and (b) you are fully able and competent to enter into the Terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. 

B. Registration

You will be required to create an account to use the Services.  You agree to provide complete and accurate information when registering to use our Services and to keep that information updated.  You are responsible for maintaining the confidentiality of your user name and password (“User Credentials”) and for notifying us immediately of any loss or suspected unauthorized use of or access to your account or User Credentials.  You are responsible for all activities on your account whether authorized or not.

 C. Subscription and Fees

You may subscribe to the Services by registering and paying the applicable subscription fee as per our billing terms described here.  Each subscription will specify the specific Services ordered and will continue month-to-month, unless we both agree to a longer term (“Subscription Term”).  Each Subscription Term shall automatically renew for a Subscription Term of equal length until you cancel the subscription on or before the end of the then current Subscription Term, unless otherwise terminated in accordance with these Terms.

You agree to provide a valid credit card or other approved payment mechanism for paying subscription fees and other charges.  You authorize us to charge your credit card or other payment mechanism for any subscription fees and charges that you may incur in connection with your account or use of the Services.

We reserve the right to change the fee structure and fees charged for the Services at any time. We will provide you with thirty (30) days advance notice of changes to the fee structure and fees. By continuing to use of the Services following that 30-day notice period, you agree to the updated fee structure and fees. You acknowledge that if you object to the proposed change(s), your sole remedy is to cancel your subscription.

D. Access Rights

Subject to your compliance with these Terms and terms and conditions hereof, PriceLabs hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Site, Services and any Services Content solely for your own internal business purposes and solely during the applicable Subscription Term.  “Services Content” means any pricing analytics, information or other content that is generated by the Services or your use thereof.  Except for the rights expressly granted to you in these Terms, all other rights in the Site and Services are reserved by PriceLabs. 

E. Restrictions

The Services, Services Content, and Site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent.  You may not systematically extract and/or re-utilize parts of the Services, Services Content or Site without our express written consent or disclose, sell or distribute the Services Content to any third party.  In addition, you may not utilize any data mining, robots, or similar data gathering and extraction tools to extract (whether once or many times) for re-utilization any substantial parts of the Services, Services Content or the Site without our express written consent.

You agree to use the Site, Services, or Services Content in compliance with all applicable laws, rules, regulations and orders (“Laws”). You further agree not to (i) modify, adapt or translate the Site or Services or attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Site or Services; (ii) remove any copyright notice, trademark, legend, logo or product identification from the Site, Services, or Services Content; (iii) modify, translate or prepare derivative works of the Site, Services, or Services Content, or any portion thereof; or (iv) use the Site, Services, or Services Content on a third-party site, for benchmarking purposes, or to create or offer a competing product or service to the Services.

F. Prohibited Conduct and Acceptable Use

You agree not to:

• Publish and/or make any use of the Site, Services Content or Services on any website, media, network or system other than those provided by us, and/or frame, “deep link,” “page scrape,” mirror and/or create a browser or border environment around any of the Site, Services Content or Services (or any part thereof)
• Use any “robot,” “spider” or other automated device, program, script, algorithm, or methodology, or any similar or equivalent manual process, to access, acquire, copy, or monitor any portion of the Site, Services Content or Services (or any of its data), or in any way reproduce or circumvent the navigational structure or presentation of the Site or Services to obtain or attempt to obtain any materials, documents, services or information through any means not purposely made available through the Site or Services
• Purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use our name or the PriceLabs trademark and/or variations and misspellings thereof
• Impersonate any person or entity or provide false information on the Site or Services, whether directly or indirectly, or otherwise disguise your identity or the origin of any message or transmittal you send to us and/or any of our other visitors or users
• Falsely state or otherwise misrepresent your affiliation with any person or entity, or falsely express or imply that we or any third party endorses you, or any statement you make
• Reverse look-up, trace, or seek to trace another user of the Site or Services, or otherwise interfere with or violate any other user’s right to privacy or other rights, or harvest or collect personally identifiable information about visitors or users of the Site or Services without their express and informed consent
• Disable, circumvent, bypass or otherwise avoid any security features or measures used to prevent or restrict access to the Site or Services or the account of another user or any other systems or networks connected to the Site or Services, by hacking, password mining, or other illegitimate or prohibited means
• Probe, scan, or test the vulnerability of the Site or Services or any network connected to the Site or Services
• Upload to the Site or Services or otherwise use the Site or Services to design, develop, distribute and/or otherwise transmit or execute, any virus, worm, Trojan Horse, time bomb, web bug, spyware, malware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component
• Take any action that may impose an unreasonable or disproportionately large load on the infrastructure of the Site or Services or our systems or networks connected to the Site or Services, or otherwise interfere with or disrupt the operation of the Site or Services, or the servers or networks that host them or make them available, or disobey any requirements, procedures, policies, or regulations of such servers or networks
• Use the Site or Services in connection with any form of spam, unsolicited mail, fraud, scam, phishing, “chain letters,” “pyramid schemes” or similar conduct, or otherwise engage in unethical marketing or advertising
• Use the Site or Services in a way that violates any third party’s rights, including copyrights, trade secrets, privacy or publicity rights, or that discriminates against any person on any protectable basis, including but not limited to race, gender, ethnicity, national origin, gender identity, sexual orientation, religion, or age
• Use the Site or Services to harass, stalk or intimidate any user of the Site or Services, to express statements of bigotry, racism, racially or ethnically offensive content, abusiveness, vulgarity or profanity, or use the communication systems provided by the Services for any reason not explicitly authorized by these Terms
• Use the Site or Services to take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful content to or through the Site or Services.

 G. Link or Access to Your Property Listings

The Services are designed to provide dynamic pricing analytics for properties that you offer for lease or rent (“Properties”).  You agree to provide us accurate and complete information regarding the location, condition and features of the Properties and access to any property management system or other systems necessary for us to provide the Services and Services Content applicable to the Properties. Using the features of the Services, you may choose to set pricing for your Properties manually, or to automate pricing based on your inputs and customizations on the Site. If you choose to automate the pricing for your Properties, you give us permission to incorporate your pricing inputs and customizations to generate dynamic pricing information for your Properties only, and hereby appoint PriceLabs as your agent with authority to access any third party property listing services you connect to your Services account for purposes of automatically updating Property pricing as contemplated herein.  PriceLabs uses only publicly available information and the information you provide to PriceLabs to provide dynamic pricing analytics for your Properties.  Your confidential information is not incorporated into dynamic pricing analytics for any other user. 

Although such pricing may be updated automatically for your Properties based on your inputs and customizations, such automated pricing constitutes recommendations only, that you may adjust or change at any time via your settings on the Site.  PriceLabs makes no representations of accuracy for any pricing analytics on the Site.  Unless we otherwise agree in writing, we will not change any other information on your account.

H. Responsibility for Property Listings and Rentals

We are not responsible for the success of your listings of Properties, and do not guarantee any revenue or profits from the Properties as a result of the use of our Services. The prices we recommend or post to your listing reflect our best assessment of current market conditions based on publicly available information and your listings performance. While we aim to maximize revenue for each listing that uses our dynamic pricing, it is solely up to you to review and determine whether the prices we suggest or post are acceptable to you. You will continue to have control over your pricing information and can update it as you deem appropriate within the Services, including choosing to reject any recommendation we suggest.

You are also solely responsible for the Properties themselves and any rental or leasing of the Properties. You are solely responsible for maintaining records required for your business. You will not make any representation or warranty regarding the Services Content or indicate in any way that PriceLabs endorses or is affiliated with your Properties or listings.

You represent and warrant that you own all Properties in connection with which you utilize the Services or otherwise have all rights necessary with respect to all such Properties with respect to such utilization. 

I. Third Party Services

The Services may include features or functionality (including without limitation automated pricing adjustments) that interoperate with property listing services and other online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between PriceLabs and the operators of such Third Party Services (such agreements, “Third Party Agreements”) or through application programming interfaces or other means of interoperability made generally available by such operators (“Third Party APIs”) which PriceLabs does not control.  Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time, with or without cause or notice, which may result in a reduction or features or functionality of the Services.  Any of the foregoing shall not affect any of your payment obligations hereunder nor constitute a breach hereof by PriceLabs, and PriceLabs shall have no liability with respect thereto. 

 J. Services Content

All Services Content, including without limitation any recommended pricing, predictions of potential future rental income or profit, analysis of a particular rental market, or analysis based on past rental history of a Property, is provided for information purposes only.  You hereby assume all risk associated with your reliance on any Services Content. The Site, Services and Services Content are not intended to provide you with any financial, real estate or related advice of any kind, and you should consult with an appropriately licensed professional if you desire any such advice. 

K. Privacy

We may collect certain personal information from you when you register an account or use our Site or Services.  Our use of such personal information is to provide the Site and Services and for other purposes as set forth in our Privacy Policy.  You consent to use of your personal information as set forth in that Privacy Policy.  We also track usage of our Site and Services, and the performance of listings using our Services (“Usage Data”).  You agree that we own all such Usage Data and may use it for any business purpose.    

 L. Indemnification

You (the “Indemnitor”) agree to defend, indemnify, and hold harmless PriceLabs, and any of PriceLabs’ affiliates, officers, directors, employees, and agents (collectively, “Indemnitees”) against any all losses, damages, injuries, claims, liabilities, deficiencies, actions, judgments, interest, awards, settlements, penalties, fines, costs, or expenses of whatever kind, including expert fees and reasonable attorneys’ fees arising from, in whole or in part: (i) any breach or non-fulfillment of any representation, warranty, or covenant under these Terms by the Indemnitor; (ii) any negligent or more culpable act or omission of Indemnitor or its personnel or agents (including any reckless or willful misconduct) in connection with the performance of its obligations under these Terms; or (iii) any failure by Indemnitor to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under these Terms. The Indemnitees reserve the right to control the defense and settlement of any third-party claim for which you indemnify Indemnitees under these Terms and you will assist us in exercising such rights.

M. Disclaimer of Warranties

WE PROVIDE THE SITE, SERVICES, AND SERVICES CONTENT ON AN ‘AS-IS’ AND ‘AS-AVAILABLE’ BASIS WITHOUT ANY PROMISES OR REPRESENTATIONS, EXPRESS OR IMPLIED.  IN PARTICULAR, PRICELABS DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE VALIDITY, ACCURACY, RELIABILITY OR AVAILABILITY OF THE SITE, SERVICES OR SERVICES CONTENT.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PRICELABS HEREBY EXCLUDES ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SITE, SERVICES OR SERVICES CONTENT IS OF SATISFACTORY QUALITY, NON-INFRINGING, FREE OF DEFECTS, OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE SITE, SERVICES, OR SERVICES CONTENT BY YOU IS IN COMPLIANCE WITH LAWS OR THAT ANY INFORMATION THAT YOU TRANSMIT IN CONNECTION WITH THE SITE OR SERVICES WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE NOT ACTING UPON THE ADVICE OR DIRECTION OF PRICELABS, AND NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OR THROUGH THE SITE, SERVICES, OR SERVICES CONTENT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

N. Limitation of Liability

NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PRICELABS NOR ANY OF THE INDEMNITEES ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA, REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION, CLAIM FOR RELIEF OR ALLEGED THEORY OF RECOVERY, WHETHER UNDER ANY CONTRACT, , TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING OUT OF OR RELATING IN ANY MANNER TO THESE TERMS, THE SITE, SERVICES OR SERVICES CONTENT, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF PRICELABS AND THE INDEMNITEES FOR CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS, THE SITE, SERVICES OR SERVICES CONTENT, IS LIMITED TO THE AMOUNT YOU PAID US FOR ACCESS TO OR USE OF THE SERVICES IN THE SIX MONTHS PRIOR TO THE EVENTS GIVING RISE TO YOUR CLAIM OR IF NO AMOUNT WAS PAID, THEN THE SUM OF FIFTY DOLLARS ($50).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

O. Modifications

We reserve the right at our sole discretion to modify the Site and Services at any time, including to add or remove features or functionalities.

We reserve the right to revise these Terms from time to time.  The most current version will always be posted on our Site.  We will either notify you via email to the email address associated with your account or by posting the modified Terms on the Site at least thirty (30) days before the date the revised Terms become effective. By continuing to access or use the Site, Services or Services Content after the revisions become effective, you agree to be bound by the revised Terms.

P. Cancellation and Termination

We reserve the right to suspend or cancel the Services or cancel any account or subscription, with or without cause, in our sole discretion, provided that if we terminate a subscription before the end of the Subscription Term without cause, then we will refund any unapplied subscription fees.  We further reserve the right to suspend or terminate your registration immediately without notice if you have breached these Terms; in such a case, your subscription fees will not be refunded.  You can cancel your PriceLabs subscription by turning off the use of PriceLabs Services from the product. Upon receipt of your request and confirmation to delete your account, we will delete your PriceLabs account within 7 business days. Post deletion, we retain some information about your account (namely property identification numbers) and add these to a blacklist bucket so that we don’t inadvertently update these properties Sections C (with respect to any accrued but unpaid amounts), E, F, and I through W will survive any termination of your Services account.

Q. Intellectual Property

The Site, Services, and Services Content, and all intellectual property rights therein, are owned by us and protected by United States and international copyright, trademark and other intellectual property laws. To the extent you provide us with any feedback, feature requests, comments, ideas, or other materials concerning the Site, Service or Services Content (“Feedback”), you agree that we will be free to use in any manner all or part of the Feedback on an unrestricted basis, and in compliance with our Privacy Policy, without the obligation to notify, identify, or compensate you or any third party.

R. Export Compliance

The Services and Services Content may be subject to export and import laws and regulations of the United States and other jurisdictions. You will not permit any access or use the Services or Services Content in or from a U.S. embargoed country (currently Cuba, Iran, North Korea, Russia, Sudan, and Syria) or in violation of any export or import law or regulation of any jurisdiction.

S. Governing Law and Forum

These Terms of Service and any dispute that might arise between you and PriceLabs will be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Illinois.

T. Arbitration

Any dispute, claim or controversy arising out of or relating to the Site, Services or Services Content, these Terms or the breach, termination, enforcement, interpretation or validity thereof (including as to the determination of the scope or applicability of this agreement to arbitrate) (“Dispute”) will be determined by arbitration in accordance with the procedures detailed and incorporated in this section, which will be the sole procedures for the resolution of any Dispute.  This arbitration agreement is governed by the Federal Arbitration Act. 

Any Dispute will be submitted to final and binding arbitration with the Judicial Arbitration and Mediation Service (“JAMS”).  The arbitration will be conducted pursuant to the JAMS Streamlined Arbitration Rules and Procedures then in effect (the “Rules”), except as may be otherwise stated herein, before a single neutral arbitrator appointed according to the Rules. The arbitrator will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, modify or vacate the award.  The parties to the Dispute shall bear all arbitration costs equally to the extent permitted by applicable law.  Except as may be necessary to enter judgment upon the award or to the extent required by applicable law, all claims, defenses and proceedings (including the existence of a Dispute and the fact that there is an arbitration proceeding as well as the hearing itself) will be treated in a confidential manner by the arbitrator and all those involved in the proceeding.

Any Dispute where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief.  For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise.  If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings.

Any Dispute relating to the arbitration presented to a court will be filed under seal to the extent permitted by law.  An arbitration award rendered pursuant to this section will be final and binding on the parties and may be submitted to a court of competent jurisdiction for entry of a judgment thereon, though the parties must maintain the confidentiality of the arbitration and/or award in connection therewith, including by filing the arbitration award under seal, to the extent permitted by law.  Regardless of the foregoing, PriceLabs shall always retain the right to seek and obtain temporary or preliminary injunctive relief or specific performance in any court of competent jurisdiction. 

This Arbitration provision shall survive any expiration or termination of your relationship with PriceLabs.

You and PriceLabs waive all rights to a trial by jury in any action or proceeding involving any Dispute in any forum.

All Disputes shall be arbitrated on an individual, non-class, and non-representative basis only, and shall not be consolidated or joined with or in any arbitration or other proceeding involving a Dispute of any other party. You and PriceLabs waive any right to have any Dispute arbitrated or adjudicated as a class or representative action or in any other form other than on an individual basis.  You and PriceLabs further agree that the arbitrator shall have no authority to arbitrate any Dispute as a class or representative action or in any other form other than on an individual basis.  All remedies available under applicable federal, state or local laws are available in arbitration, except that the arbitrator shall have power and authority to award only individual, non-class, and non-representative legal and equitable relief, and such relief may only be awarded in favor of the individual party seeking such relief and only to the extent necessary to provide relief warranted by that individual party’s claim .  If any of these prohibitions is found unenforceable as to a particular claim or request for relief, then that claim or request for relief may be decided by a court, but only after all other claims are arbitrated.  Notwithstanding any provision of the JAMS’ rules and procedures, only the federal and state courts, and not the arbitrator, shall have the power to determine compliance with this section, including the interpretation, validity, and enforceability of each of the foregoing sentences.

If any Dispute is determined not to be subject to arbitration, the exclusive jurisdiction and venue for proceedings concerning such Claim shall be the federal or state courts of competent jurisdiction sitting within Delaware (the “Forum”) and the parties hereby waive (i) any right to a trial by jury with respect to any Dispute in such proceeding, (ii) any argument that the Forum or any court within it does not have personal jurisdiction, and (iii) any argument that the Forum is not appropriate or convenient.

Notwithstanding the foregoing, either party can choose to have a claim heard in small claims court instead of in arbitration.

If either party initiates a proceeding involving any Dispute other than (i) an arbitration in accordance with this Section or (ii) a proceeding in small claims court permitted by this Section, other than in the Forum, the other party shall recover all attorneys’ fees, costs, and expenses reasonably incurred in enforcing this agreement.

To the maximum extent permitted by law, you agree that regardless of any statute or law to the contrary, any claim arising out of or related to these Terms or your access to and use of the Site, Services or Services Content must be brought as a Dispute within one (1) year after such claim or cause of action arose or be forever barred.

You and PriceLabs agree that this Section T shall apply to the maximum extent permitted by applicable law and shall survive termination of the Terms.

U. Assignment

You may not assign or transfer these Terms or your account, by operation of law or otherwise, without our prior written consent.  Any attempt by you to assign or transfer these Terms, without such consent, will be void and of no effect.  We may assign or transfer these Terms, at our sole discretion, without notice and without restriction.  Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

 V. Electronic Communications

The communications between you and PriceLabs use electronic means, whether you use the Site or send us emails, or we post notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from PriceLabs in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that PriceLabs provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.

 W. Miscellaneous

These Terms (together with the Privacy Policy any other applicable policies posted on the Site or made available in connection with the use of the Services) constitute the entire agreement between you and PriceLabs, and supersede all prior and contemporaneous written or oral agreements, proposals or communications with respect to the subject matter hereof between you and us, including any prior version of these Terms.  The section headings in these Terms are for convenience only and must not be given any legal import.  If any term or provision of these Terms shall be held to be invalid by any court or arbitrator of competent jurisdiction, that term or provision shall be deemed modified so as to be valid and enforceable to the full extent permitted.  The invalidity of any such term or provision shall not otherwise affect the validity or enforceability of the remaining terms and provisions.  Additionally, our failure to enforce any provisions of these Terms or respond to a breach by you or another user shall not serve to waive our right to enforce subsequently any terms or conditions of these Terms or to act with respect to similar breaches.