Terms of Service & Notices
By accessing or using any web site or service made available by REI Media LLC, dba FlipLender.com aka FlipLender™, you acknowledge that you (i) have read and agree to be bound by these Terms of Service and (ii) agree to comply with all applicable laws and regulations, including US state and federal securities laws and regulations and export and re-export control laws and regulations.
It is your responsibility to review these terms of service periodically. If at any time you find these Terms of Service unacceptable or if you do not agree to these terms of service, do not access the Services.
THIS SITE IS DESIGNED FOR AND TO BE USED BY ONLY THOSE RESIDING IN THE UNITED STATES, CANADA, AUSTRALIA, AND ISRAEL. IF YOU DO NOT RESIDE IN ANY OF THESE COUNTRIES, YOU ARE PROHIBITED FROM USING THIS SITE AND ARE IN VIOLATION OF THESE TERMS OF SERVICE.
YOU AGREE THAT BY USING THE SERVICES, YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.
The following meanings shall apply in these Terms of Service: “Site” refers to any web site made available by REI Media LLC. “Services” refers to the Site and all services, self-help documents, forms, and templates provided by REI. “REI”, RealEstateInvesting.com”, “we”, “us” and “our” refer to REI Media LLC. and our affiliates (including officers, directors, employees, consultants, agents and representatives). “You” and “your” refer to each customer, visitor or user of any Services. If you access or use the Services on behalf of a company, organization, or other entity, then (a) “you” and “your” also refers to that entity, (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms of Service, and (c) you agree to these Terms of Service on the entity's behalf.
Modifications to Terms of Service
If we modify these Terms of Service, we will either post the modification on the Site or otherwise provide you with notice of the modification. We will also update the “Last Updated” date at the top of these Terms of Service. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
Due Diligence Required
Rei does not perform due diligence or any background checks on the members or advertisers, or their offerings & does not guarantee any information contained on this site.
Real Estate Investing is risky & due diligence is always required when considering an investment opportunity. You must protect yourself & verify all aspects of an investment including hiring the services of an independent professional to assist you.
You must ensure security and integrity of your account
When you open an account to use or access certain Services or provide us with information in connection with a purchase or transaction, you must provide accurate, complete and current information. You will also be asked to provide a user name and password. You are entirely responsible for the maintaining the confidentiality of your password. You are solely responsible for the activity that occurs on your account. You must keep your account password secure and you may not use a third party's account at any time. REI shall not be liable for any losses you incur as a result of someone else's use of your account. You may be held liable for any losses incurred by REI due to someone else's use of your account.
Account information provided by you
You are required to provide your correct name when creating your account and when participating on the site. You are to provide and maintain accurate descriptions of yourself within your profile and when participating on the site.
You will not engage in prohibited activities
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system to access the Services in a manner that sends more request messages to the REI servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that REI grants the operators of public search engines revocable permission to use spiders to copy materials from publicly accessible web pages at RealEstateInvesting.com sites maintained and otherfor the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
We retain the right to change or stop providing Services and features
We may, without prior notice, change the Services; stop providing the Services or features of the Services, or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms of Service, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms of Service. Any data, account history and account content residing on the servers running the Services may be deleted, altered, moved or transferred at any time for any reason at REI’s sole discretion, with or without notice and with no liability of any kind. REI does not provide or guarantee, and expressly disclaims, any value, cash or otherwise, attributed to any data residing on the servers running the Services.
User interaction and user content
You are solely responsible for your interactions with other users of the Services. We reserve the right, but have no obligation, to monitor disputes and interactions between you and other users. REI shall have no liability for your interactions with other users, or for any user’s action or inaction.
Some areas of the Services may allow users to post content such as profile or transaction information, comments, questions, and other content or information (any such materials a user submits, posts, displays, or otherwise makes available on the Services “User Content”). You retain ownership of your User Content.
You agree not to post User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below), rights of publicity and privacy. You acknowledge and agree that any User Content that you post may be displayed and disclosed to other users as permitted through the functionality of the Services. REI reserves the right, but is not obligated, to edit, remove, re-categorize, pre-screen, reject and/or otherwise modify any User Content that REI believes, in its sole discretion, violates these provisions. You understand that publishing your User Content on the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer's Guild of America, or any other rights organization.
For the purposes of these Terms of Service, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Except as provided in these Terms of Service, REI retains all rights in the Services
Except for your User Content, the Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content (the “REI Content”), and all Intellectual Property Rights related thereto, are the exclusive property of REI and its licensors. Except as explicitly provided herein, nothing in these Terms of Service shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Services. Use of the REI Content or materials on the Services for any purpose not expressly permitted by these Terms of Service is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place REI under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, REI does not waive any rights to use similar or related ideas previously known to REI, or developed by its employees, or obtained from sources other than you.
You agree to pay us in accordance with our terms of sale
Certain aspects of the Services may be provided for a fee or other charge. If you elect to use paid aspects of the Services, you agree to the terms of sale, pricing, payment and billing policies applicable to such fees and charges. REI may add new services for additional fees and charges, or amend fees and charges for existing services, at any time in its sole discretion. You authorize REI to charge your credit card for all fees and charges incurred in connection with your use of the Services, including REI's fees, government fees, taxes and other third party fees.
If you register with us, you may cancel your account at any time; however, there are no refunds for cancellation. In the event REI suspends or terminates your account due to violations by you of these Terms of Service, you understand and agree that you shall receive no refund or exchange for any unused time or service on a subscription, any license or subscription fees for any portion of the Services, any content or data associated with your account, or for anything else.
You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Services at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
You provide us your data at your own risk and consent to have it processed in the United States
We respect content owner rights and it is REI's policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify REI’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following: DMCA Agent, REI Media LLC, , Jacksonville, FL 32217 by email at [email protected]
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS' FEES.
Please note that this procedure is exclusively for notifying REI and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with REI's rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, REI has adopted a policy of terminating, in appropriate circumstances and at REI's sole discretion, members who are deemed to be repeat infringers. REI may also at its sole discretion limit access to the Services and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third party services
FTC Notice / Disclosure of Material Connection
You should assume the owner/operator of this website and/or blog has an affiliate relationship and/or another material connection, to any suppliers of goods and services that may be discussed here, and may be compensated for showing ads or recommending products or services, or linking to the supplier’s website.
You Indemnify Us
You agree to defend, indemnify and hold harmless REI and its agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms of Service, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) your violation of any law, rule or regulation of the United States or any other country; (v) any claim for damages that arise as a result of any of your User Content or any that is submitted via your account; or (vi) any other party's access and use of the Services with your unique username, password or other appropriate security code.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM REI OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, REI AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES.
REI DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE REI SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND REI WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL REI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICES. UNDER NO CIRCUMSTANCES WILL REI BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY ERRORS, MISTAKES, OMISSIONS OR INACCURACIES OF CONTENT; (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VI) ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) ANY USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. REI EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION THAT MAY BE DEEMED CONFIDENTIAL BY YOU OR ANY THIRD PARTY. IN NO EVENT SHALL REI, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO REI HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF REI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
REI Services are directed to users in the United States
The Services are controlled and operated from the United States. REI makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident outside the United States, of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
These Terms of Service are assignable only by REI
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be transferred or assigned by REI without restriction.
Controlling Law and Jurisdiction
You agree that: (i) the Services shall be deemed solely based in Florida; and (ii) the Services shall be deemed passive that do not give rise to personal jurisdiction over REI, either specific or general, in jurisdictions other than Florida. You expressly agree that your rights and obligations, these Terms of Service and any disputes shall be governed by and interpreted in accordance with the laws of the state of Florida, excluding its choice of law rules. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any claim or dispute between you and REI that arises in whole or in part from the Services shall be decided exclusively by a court of competent jurisdiction located in Duval County, Florida, unless submitted to arbitration as set forth in the following paragraph. You also acknowledge and agree that you and REI are each waiving the right to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and REI otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding.
You and REI agree that any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and REI are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and REI otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms of Service.
Arbitration Rules and Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Florida and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and REI otherwise agree, the arbitration will be conducted in Duval County Florida. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and REI submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. REI will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the “Modifications to Terms of Service” section above, if REI changes this “Dispute Resolution” section after the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of REI's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and REI in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
REI may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our web site, as determined by REI in our sole discretion. REI reserves the right to determine the form and means of providing notifications to our users. REI is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add [email protected] to your email address book to help ensure you receive email notifications from us.
This is our entire agreement and if any portion is deemed invalid, the remaining provisions are valid
This Agreement, together with any amendments and any additional agreements you may enter into with REI in connection with the Service, shall constitute the entire agreement between you and REI concerning the Services. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and REI's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.