Terms and Conditions

Effective Date: December 18, 2018

User’s Acknowledgment and Acceptance of Terms

Hawaii Coffee Company (“Us” or “We”) provides the Hawaii Coffee Company website and various related services and Hawaii Coffee Company branded websites and web pages on which these Terms of Service are posted (collectively, the “Website”) to you, the user, subject to your compliance with all the terms, conditions, and notices contained or referenced in these Terms of Service, as well as any other written agreement between us and you. In addition, when using particular services or materials on this Website, users shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions in addition to those in these Terms of Service. All such guidelines or rules are hereby incorporated by reference into these Terms of Service.

BY USING THE WEBSITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE AND OUR PRIVACY POLICY. IF YOU DO NOT WISH TO BE BOUND BY THE THESE TERMS OF SERVICE AND OUR PRIVACY POLICY, PLEASE EXIT THE WEBSITE NOW. YOUR REMEDY FOR DISSATISFACTION WITH THE WEBSITE, OR ANY PRODUCTS, SERVICES, CONTENT, OR OTHER INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE, IS TO STOP USING THE WEBSITE AND/OR THOSE PARTICULAR PRODUCTS OR SERVICES. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THESE TERMS OF SERVICE BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF YOUR USE OF THE WEBSITE.

As used in these Terms of Service, references to our “Affiliates” include our owners, subsidiaries, affiliated companies, officers, directors, suppliers, partners, sponsors, and advertisers, and includes (without limitation) all the parties involved in creating, producing, and/or delivering this Website and/or its contents.

The Website are offered and made available only to users 18 years of age or older – they are not intended for children under 18. Your account may be terminated without warning, if we believe, in our sole discretion, that you are less than 18 years of age. By using or attempting to use our Website, you certify that you are at least 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. If you are not yet 18 years old, or your use of our Website is prohibited or restricted in any way by the laws, regulations or other governmental requirements of the jurisdiction in which you live or reside, or if, for any reason and at any time, you do not agree with all of the terms and conditions contained in these Terms of Service, please do not use our Website. Use of our Website is void where prohibited.

Changes to These Terms of Service

We expressly reserve the right to change these Terms of Service from time to time and such modification shall be effective upon posting by us on the Website. You acknowledge and agree that it is your responsibility to review this Website and these Terms of Service from time to time and to familiarize yourself with any modifications. Your continued use of this Website after such modifications will constitute acknowledgement of the modified Terms of Service and agreement to abide and be bound by the modified Terms of Service.

Description of Services

We make various services available on this Website, and you are responsible for providing, at your own expense, all equipment necessary to use the services, including a computer, modem, and Internet access (including payment of all fees associated with such access).

We reserve the sole right to either modify or discontinue the Website, including any of the Website’s content, features and services, at any time with or without notice to you. We will not be liable to you or any third party should we exercise such right. Any new features that augment or enhance the then-current services on this Website shall also be subject to these Terms of Service.

Use of Website

We authorize you to view or download the files, documents, text, photographs, images, audio, video, and any other materials accessed through or made available for use or download through the Website (collectively, “Content”) solely for your personal, noncommercial use if you do not remove the copyright and other proprietary rights notices which are contained in the Content. You may not copy, distribute, modify, create derivative works of, reproduce, publish or use, in whole or in part, any Content for any commercial or other purposes except as explicitly authorized by these Terms of Service. You may not use any computerized or automatic mechanism, including without limitation, any web scraper, offline reader, spider or robot, to access, extract or download any content from the Website, unless you are expressly authorized to do so by us.

Registration Data and Privacy

In order to access some of the services on this Website, you will be required to use an account and password that can be obtained by completing our online registration form, which requests certain information and data (“Registration Data”), and maintaining and updating your Registration Data as required. By registering, you agree that all information provided in the Registration Data is true and accurate and that you will maintain and update this information as required in order to keep it current, complete, and accurate. The information we obtain through your use of this Website, including your Registration Data, is subject to our Privacy Policy, which is specifically incorporated by reference into these Terms of Service.

Conduct on Website

Your use of the Website is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the Website. If you submit, upload or post any comments, ideas, suggestions, feedback, information, files, videos, images, audio files, or other materials to us or our Site (“User Generated Content”), you agree not to provide any User Generated Content that:

a. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
b. victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
c. infringes on or misappropriates any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
d. constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
e. contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
f. impersonates any person or entity, including any of our employees or representatives.

You represent and warrant to Company that you have the legal right and authorization to provide all User Generated Content to Company for the purposes and Company’s use as set forth herein. Company shall have a royalty-free, perpetual, irrevocable, transferable right and license to use the User Generated Content however Company desires, including without limitation, to copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, sell, distribute and otherwise exploit such User Generated Content and/or incorporate such User Generated Content into any form, medium or technology throughout the world. Company is and shall be under no obligation (i) to maintain any User Generated Content in confidence; (ii) to pay to you any compensation for any User Generated Content; or (iii) to respond to any User Generated Content.

We neither endorse nor assume any liability for User Generated Content. We generally do not pre-screen, monitor, or edit the User Generated Content posted by users. However, we and our agents have the right at their sole discretion to remove any content that, in our judgment, does not comply with these Terms of Service and any other rules of user conduct for our Website, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such User Generated Content. You hereby consent to such removal and waive any claim against us arising out of such removal of content. You agree to defend, indemnify and hold Company harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Company arising out of any User Generated Content you post or allow to be posted to the Site.

In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the Website may be available to you or other authorized users of the Website. You shall not interfere with anyone else’s use and enjoyment of the Website or other similar services. Users who violate systems or network security may incur criminal or civil liability.

You agree that we may at any time, and at our sole discretion, terminate your membership, account, or other affiliation with our Website without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other Websites, including cooperating with law enforcement authorities in investigating suspected criminal violations.

You agree not to use or launch any automated system that accesses the Website in a manner that sends more request messages to our servers in a given period of time than a person can reasonably create in the same period by using a conventional on-line web browser.

Third Party Websites and Information

This Website may link you to other websites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These Websites may contain information or material that some people may find inappropriate or offensive. These other Websites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such Websites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the Website or party by us, or any warranty of any kind, either express or implied.

Intellectual Property Information

By accepting these Terms of Service, you acknowledge and agree that all Content presented to you on this Website is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, and is the sole property of Hawaii Coffee Company and/or its Affiliates. You are only permitted to use the Content as expressly authorized by these Terms of Service. All custom graphics, icons, logos and service names are trademarks, trademarks or service marks of Hawaii Coffee Company or its Affiliates. All other trademarks or service marks are property of their respective owners. Nothing in these Terms of Service grants you any right to use any trademark, service mark, logo, and/or the name of Hawaii Coffee Company or its Affiliates. Any unauthorized use of the materials appearing on this Website may violate copyright, trademark, trade secret and other applicable laws and could result in criminal or civil penalties.

Neither we or our Affiliates warrant or represent that your use of materials displayed on, or obtained through, this Website will not infringe the rights of third parties. See Section 9 entitled “Unauthorized Use of Materials,” below for a description of the procedures to be followed in the event that any party believes that Content posted on this Website infringes on any copyright of any party.

Unauthorized Use of Materials – Digital Millennium Copyright Act

Company respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), we will respond promptly to notices of alleged infringement that are reported to Company’s Designated Copyright Agent, identified below. We disclaim any responsibility or liability for copyrighted materials posted on our site

If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice complying with the following requirements.

⦁ Identify the copyrighted works that you claim have been infringed.
⦁ Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
⦁ Provide your mailing address, telephone number, and, if available, email address.
⦁ Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
⦁ Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to:

Hawaii Coffee Company
attn: eCommerce Team
1555 Kalani Street
Honolulu, HI 96817

Disclaimer of Warranties

ALL MATERIALS AND SERVICES ON THIS SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICES AND MATERIALS WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.

THIS SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE MATERIALS AND SERVICES AT THIS SITE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AT THIS SITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES.

THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THIS SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

You understand and agree that temporary interruptions of the services available through this Website may occur as normal events. You further understand and agree that we have no control over third party networks you may access in the course of the use of this Website, and therefore, delays and disruption of other network transmissions are completely beyond our control.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, YOUR USE OF THIS WEBSITE, ANY PRODUCTS AND SERVICES PURCHASED THROUGH THE WEBSITE OR OF ANY WEBSITE REFERENCED OR LINKED TO FROM THIS SITE.

IN NO EVENT SHALL THE TOTAL LIABILITY OF US OR ANY OF OUR AFFILIATES RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITE OR ANY PRODUCTS AND SERVICES PURCHASED THROUGH THE WEBSITE, FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS APPLY EVEN IF THE REMEDIES UNDER THESE TERMS OF USE FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITED DAMAGES SET FORTH IN THIS SECTION CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE OR ANY PRODUCTS AND SERVICES PURCHASED THROUGH THE WEBSITE.

SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification

Upon a request by us, you agree to defend, indemnify, and hold us and our Affiliates harmless from all liabilities, claims, and expenses, including attorneys’ fees, that arise from your use or misuse of this Website. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

Security and Password

You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account if you do transfer or share your account.

Order Cancellation and Refund Policy

We will refund and allow cancellation of orders according to the conditions listed our Shipping and Returns Policy, which are incorporated into these Terms of Service by this reference.

Product Backorders

We work closely to ensure that items which are out-of-stock are shown as such on the Website. However, in some cases back orders will occur. We will make our best efforts to notify you promptly if such back orders result in a material delay in shipping your order.

Availability

Products that are not available are marked accordingly on the product pages. If you place an order for a product that is shown as available but in fact is not available, we will provide you with a full refund.

Risk of Loss

Items purchased from the Website which are subject to physical delivery are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon delivery to the carrier. Items purchased from us which are delivered online to you through your account on the Website are deemed delivered upon first use or submission.

Gift Cards, Vouchers, and Coupons

Hawaii Coffee Company Gift Cards purchased through the Website have no fees and they never expire. Hawaii Coffee Company Gift Cards must be redeemed through the Website. Hawaii Coffee Company Gift Cards are not redeemable for cash and cannot be returned for a refund. If your order exceeds the amount of your Hawaii Coffee Company Gift Cards, you must pay for the balance with a credit card. Hawaii Coffee Company Gift Cards and their use on the Website are subject to these Terms of Service. Our determination of the value remaining on a Gift Card is final.

We are not responsible for lost or stolen Gift Cards. Coupons may not be used to aggregate Gift Cards for a single user, even if sent from various accounts. Only one coupon can be applied towards each purchase. Coupons issued as part of promotional fulfillment may have an expiration date and be subject to additional terms and conditions. See specific promotion for details. Hawaii Coffee Company makes no warranties, express or implied, with respect to coupons or Hawaii Coffee Company Gift Cards, including, without limitation, any express or implied warranty of merchantability or fitness for a particular purpose. In the event a Gift Card is non-functional, your sole remedy, and our sole liability, shall be the replacement of such Gift Cards. Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights. Redeemable Gift Cards, Vouchers, and Coupons purchased through third party vendors may have additional or different Terms of Service applicable via the third party portals through which they are obtained and will be subject to the terms and conditions of such third parties.

Subscription Program

Hawaii Coffee Company may offer the ability to subscribe to receive certain eligible products on a periodic basis (e.g., bi-weekly, monthly, or bi-monthly). Under the Hawaii Coffee Company Subscription Program, your subscription will automatically create a new order according to your chosen delivery schedule, until you cancel. Some of the offer details related to products you have subscribed to may change as you receive deliveries over time (for example, shipping cost, taxes, availability and shipping charges). We may, in our sole discretion, terminate your subscriptions at any time without notice. If we do so, you will only be charged for orders that have been shipped to you.

Your participation in the Hawaii Coffee Company Subscription Program is personal to you, and you may not assign or transfer your Subscription or any of the benefits to any third party without our authorization. All returns under the Hawaii Coffee Company Subscription Program are subject to the our return policy. Subscriptions are void where prohibited.

Hawaii Coffee Company determines which products on this website are eligible for subscription. Hawaii Coffee Company reserves the right to alter the subscription status of any product at their discretion at any time. We may, in our sole discretion, cancel any active subscriptions for any reason.

The total cost charged to your payment method for each Subscription order will be the cost of the item established at the time of your original order, plus any applicable sales tax, plus the then-in-effect shipping rate for your order. The charge for each subscription item shipment will be billed to the payment method used to create your subscription or as otherwise directed by you. If we are unable to complete your subscription order with the payment method you used to create your subscription, you authorize us to update your subscription with another payment method in your account and to charge the payment method for your subscription order.

Your subscription will remain in effect until it is cancelled. You can cancel at any time via your Hawaii Coffee Company account page, which can be found at https://www.hawaiicoffeecompany.com/account.php. If you cancel your subscription and then reactivate it, the discount applied to any Subscription item may not be the same discount in effect at the time of cancellation. If the Subscription discount percentage for such Subscription item changes, the new discount will be applied to your future shipments of that item. YOUR CONTINUED PARTICIPATION AFTER WE CHANGE THESE TERMS CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU DO NOT AGREE TO ANY CHANGES, YOU MUST CANCEL YOUR SUBSCRIPTIONS.

International Use

Although this Website may be accessible worldwide, we make no representation that materials on this Website are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this Website from other locations do so on their own initiative and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with this Website is void where prohibited.

Termination of Use

You agree that we may, in our sole discretion, terminate or suspend your access to all or part of the Website with or without notice and for any reason, including, without limitation, breach of these Terms of Service. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.

Upon termination or suspension, regardless of the reasons therefore, your right to use the services available on this Website immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or this Website. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.

Governing Law; Class Action Waiver

This Website is controlled by us from our offices within the United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Hawaii, by accessing this Website both of us agree that the statutes and laws of the State of Hawaii, without regard to the conflicts of laws principles thereof, will apply to all matters relating to the use of this Website and the purchase of products and services available through this Website. Each of us agrees and hereby submits to the exclusive personal jurisdiction and venue any court of competent jurisdiction within the State of Hawaii with respect to such matters. The United Nations Convention on the International Sales of Goods shall not apply to this Agreement.

YOU AND HAWAII COFFEE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

Notices

All notices to a party shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at help@hawaiicoffeecompany.com, if by email, or at Hawaii Coffee Company 1555 Kalani Street, Honolulu, HI 96817 if by conventional mail. Notices to you may be sent to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the Website to inform you of changes to the Website or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.

Entire Agreement
These Terms of Service and our Privacy Policy constitute the entire agreement and understanding between us concerning the subject matter of this agreement and supersedes all prior agreements and understandings of the parties with respect to that subject matter. These Terms of Service may not be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us. To the extent that anything in or associated with this Website is in conflict or inconsistent with these Terms of Service, these Terms of Service shall take precedence.

Miscellaneous
In any action to enforce these Terms of Service, the prevailing party will be entitled to costs and attorneys’ fees. Any cause of action brought by you against us or our Affiliates must be instituted with one year after the cause of action arises or be deemed forever waived and barred.

You may not assign your rights and obligations under these Terms of Service to any party, and any purported attempt to do so will be null and void. We may free assign our rights and obligations under these Terms of Service.

In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of products and services available through our Website arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, acts or omissions of third parties, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.

If any part of these Terms of Service is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.

Any failure by us to enforce or exercise any provision of these Terms of Service or related rights shall not constitute a waiver of that right or provision.