You must read and agree to this Commercial Terms of Service Agreement ("Agreement") as a Commercial User ("Commercial User") of Edynco Site. Once you have been given notice of, or been provided a copy of this Agreement (including without limitation delivery of this Agreement via an email or other method of notification) your continued use of your Commercial User account will indicate your acceptance of all of the terms of this Agreement.
Edynco Site consists of its site located at the URL http://www.edynco.com, as well as its applications, widgets, and gadgets for social networks (including but not limited Android Market and iPhone App Store) collectively herein, the Edynco Services and the Edynco website and applications will be referred to as the "Site". As a Commercial User, you have agreed to pay fees outlined herein to Edynco for your use of the Site for commercial purposes.
A Commercial User is a user who has paid for any of Edynco subscriptions. A Commercial User may use his Learning maps or private groups (collectively herein “Edynco content”) for commercial purposes, but may only distribute or otherwise make available Edynco content to third parties who have agreed to use the Edynco content for non-commercial purposes.
You must be 18 years of age or older to be a Commercial User of the Site. You warrant that you are at least 18 years old and you have the authority to enter into these Commercial Terms of Service. If you do not agree with these Commercial Terms of Service, you must immediately stop using the Site, and Edynco content created therefrom, for any commercial purposes.
Though you are a Commercial User, you are a User of Edynco Site and subject to Edynco (non-commercial) Site Terms of Service, which are incorporated herein by reference in their entirety. There are two general types of users, registered users that have registered with Edynco or with an authorized third party that provides access to Edynco Services ("Registered Users"), and visitors of the Site ("Visitors"), such as someone invited to view another's Edynco content. Please review the Site Terms of Service.
As used herein, "commercial purposes" shall mean any use of an Edynco content that directly or indirectly derives a commercial benefit or pecuniary gain.
Once you have paid the appropriate fees to become a Commercial User, you may then create Edynco content that you may use for commercial purposes subject to this agreement and all applicable laws and regulations. However, you may not use Edynco content created prior to, after, or outside of your Commercial User membership for commercial purposes. For example, if you create an Edynco content as a (non-Commercial) User, and subsequently become a Commercial User, you may not use such Edynco content for commercial purposes.
We reserve the right, at any time, to modify the Site and/or the terms of this Agreement without prior notice. You will be informed of any modifications of these Terms of Service by Edynco by email or other method of notification. Modifications will become effective immediately upon the notice of modifications being sent to you. Your continued use of the Site as a Commercial User after modifications are posted will be considered an acceptance of the modified Commercial Terms of Service.
By registering with us, you agree that all information provided during registration is true and accurate and you will update this information in order to keep it current, complete and accurate.
During the registration process, you will be asked to select a password for your Commercial User account. The password and your Commercial User account are for your individual use only, and are not to be shared with employees, coworkers, friends or family. Commercial User accounts are only available on an individual basis, and therefore may not be shared with other individuals within your organization. You agree to keep your password confidential at all times. Edynco may at any time, and at our sole discretion, terminate your account without prior notice to you and without reimbursement if we suspect your account is being used by more than one individual.
You agree to be fully responsible for activities or transactions that relate to your account or your password. You must notify Edynco immediately if you learn of an unauthorized use of your password.
You have agreed to pay us fees for your use of the Site for commercial purposes ("Fees"). Your use of the Site and Edynco Content created therefrom is limited to only acceptable commercial purposes as defined herein, or as specified by Edynco on its Site ("Scope of Use"), and is subject to your compliance with these terms and payment of the Fees.
If you desire to use the Site or Edynco Content for commercial purposes that are different from or beyond the Scope of Use, you must obtain written permission from Edynco, and your use for such purposes beyond the Scope of Use may be conditioned upon payment of additional fees.
Edynco may provide you with the ability to pay the Fees through PayMill service. All subscriptions paid through this service are subject to the third party's Terms of Service, and we will not be responsible for anything contained therein. You are responsible for payment of any sales or use taxes associated with the Fees, your use of the Site.
Edynco will only host your Edynco Content during the time period covered by the applicable Fees paid ("Term") and you understand and agree that in the event your status as Commercial User is terminated or interrupted for any reason, including but not limited to the expiration of the Term and/or your failure to renew a new Term, that your hosted Edynco Contents will be disabled and will not be viewable on any site, nor will they be able to be sent via email links to anyone. However, if during the Term you have downloaded Edynco Content (Learning map, Micro lecture or Quiz), then you may continue to use the Edynco Content within the Scope of Use. Note, however, that you are responsible for ensuring your use is in compliance with applicable laws, rules and regulations, and Edynco is not responsible for payments to third parties arising from such use.
In the event you terminate or fail to renew your status as a Commercial User and subsequently renew within six (6) months, all of your previously created Edynco Contents will again be live and will be viewable in the same manner as before your status as Commercial User was terminated or lapsed. If you do not subsequently renew within the six (6) month period, then your previously created Edynco Contents may be deleted and thus not be accessible.
Commercial Users may, during the Term, distribute or otherwise make available Edynco Contents to third parties if such third parties agree to use the Edynco Contents for personal use only, and subject to Edynco Distribution Terms set forth below. For example, Commercial Users may not distribute or make available Edynco Contents to third parties if such third parties intend to use the Edynco Contents directly or indirectly to derive a commercial benefit or pecuniary gain. Your account may be terminated without prior notice or reimbursement if you distribute Edynco Contents in violation of this agreement.
In distributing Edynco Contents to third parties, Commercial User must obtain the third party's agreement to the below Distribution Terms (a)-(h). If Commercial User does not obtain the third party’s agreement to the below terms, Commercial User agrees to indemnify and defend Edynco for any and all claims or causes of action arising from the third party’s use of Edynco Contents. Commercial User assumes all responsibility for compliance with the terms of this Agreement by third party recipients of Edynco Contents.
Edynco (or a third party hired by Edynco for such purpose) shall have the right, at any time, to inspect and audit all accounts, records and other of Your information to determine your compliance with the terms contained herein. The costs of such audit shall be borne by Edynco unless the audit uncovers that You have materially breached this Agreement, and then You shall be responsible for reimbursement of all reasonable costs and expenses of such audit.
You agree to obey all applicable laws, rules and regulations in using the Site, and agree that you are responsible for the contents of your submissions or communications through the Site, including Image, Video, Audio and other various file formats (collectively, "Submissions").
Any transfer, assignment, resale or use by a third party of Edynco Content, in any manner or for any reason whatsoever, is subject to the terms and conditions of this Agreement. In no event can a Commercial User's rights hereunder or subscription be transferred, assigned, resold or used by a third party in any manner or for any reason whatsoever without the prior written consent of Edlab d.o.o.. Any transfer, assignment, resale, or use in violation of this paragraph will be considered, without limitation, a violation of Edynco proprietary rights by such third party, and will be considered a material breach of this Agreement by Commercial User.
You agree that you will not upload, share, or otherwise distribute any Submissions-- including text, graphics, images, sounds, data, music, or other information — that:
We do not endorse the contents of any Submissions, and expressly disclaim any and all liability in connection with Submissions. We do not pre-screen or monitor Submissions. However, we have the right at our sole discretion to remove any content of any kind that, in our judgment, does not comply with these Commercial Terms of Service and any other rules of user conduct for the Site, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content.
If you would like to notify us of content that you believe does not comply with these Commercial Terms of Service, please fill out our feedback form on our Site. Make sure to include both the Uniform Resource Locator ("URL") for the non-complying video or content, and the reasons you believe it does not comply. You understand that in using the Site, you may be exposed to materials that are objectionable. You hereby waive and agree to waive all rights, claims, and actions in law or equity against Edynco arising from your exposure to such materials.
You may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Commercial 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 account without prior notice to you and without reimbursement if we suspect a violation any of these Commercial Terms of Service. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
You may not link to the Site unless you comply with these linking conditions.
Your ability to share your Edynco Content may depend on whether you obtained access to Edynco Services from an authorized third party, and therefore you may not have all of the Site's capabilities or sharing capabilities described. You may share your Edynco Contents hosted on the Site by (a) downloading the Edynco content from Edynco site for use within the Scope of Use, if such functionality is available, or (b) using Edynco Content player code to play your content in your own website or web page for use within the Scope of Use. Edynco Contents used for commercial purposes must only be used within the Scope of Use within the applicable Term. You agree that you will not modify the video player code in any way, nor will you modify the display of your Edynco Content.
You may also share your Edynco Content hosted on the Site by emailing or otherwise sharing the link associated with your Edynco Content. You may also share your Edynco Content by downloading it to a storage device, personal computer, or mobile device.
Commercial Users may not use or share Edynco Content for any unauthorized or illegal advertising or promotional materials, such as junk mail, spam, chain letters, or pyramid schemes.
Your right to link to the Site is expressly conditioned upon your compliance with the following restrictions:
Edynco Intellectual Property Rights. Edynco is the owner and retains all proprietary rights to the Site, the services provided by the Site, and all associated copyrights, trademarks, brands, service marks, patents or other proprietary rights under law. You are permitted to use the Site and its content only as specifically authorized by us. As a Commercial User, subject to your payment of the applicable Fees and your compliance with these Terms of Service, you are granted a limited, non-exclusive, revocable, non-transferable right to use the Site to create, display, use, play, download (if made available by Edynco) Edynco Contents within the Scope of Use and during the Term.
Your license to display Edynco Content is conditioned upon the display, each time the Edynco Content is used for commercial purposes, of any of the following which may be contained in the Edynco Content: Edynco trademarks, logos, icons or notices. Furthermore, your use of the Site and Edynco Contents is expressly conditioned upon your agreement to (i) refrain from taking any measures to inhibit display of Edynco trademarks, logos, icons, or notices, if such items are contained in the Edynco Content; and (ii) refrain from removing or modifying any Edynco trademarks, logos, icons, or notices which may be contained in the Edynco Content. Inhibiting display of, removing, or modifying Edynco trademarks, logos, icons or notices from your Edynco Content will be considered a material breach hereof.
Edynco trademarks and/or service marks may not be used in connection with any product or service that is not provided by Edynco, in any manner that is likely to cause confusion among customers or users of the Site, tarnishes or dilutes the marks, or disparages or discredits Edynco.
Others' Intellectual Property Rights. Edynco deeply respects the third party intellectual property rights that may be implicated in creating Edynco Content. These intellectual property rights, and your responsibilities with respect to these rights, are outlined below.
In creating an Edynco Content using Edynco proprietary software, you will be able to use your own Content such as photos, graphics, text, documents, or video. The Site may allow Commercial Users to upload their own Content for creating your Edynco Content.
All Edynco Content have associated intellectual property rights as described further herein. You retain any and all rights you hold with respect to all your own Content.
Content may be protected by copyright, even if not marked with the Â© symbol. If you are not the creator of Content, then you must get permission from the creator of the Content or the copyright holder to use the Content in Edynco Content. For example, professionally-taken photographs should not be used in Edynco Content unless you have received permission from the photographer to do so.
Furthermore, if you want to publish Content of someone other than yourself, you must get permission from the individuals portrayed in the Content before using the content in an Edynco Content. Do not upload any Content that is confidential or proprietary. We assume no liability with respect to the disclosure or use of confidential or proprietary information uploaded to the Site.
Musical Content that is not an original creation by you is also protectable under copyright laws. Copying music without purchasing or obtaining the rights to the music is against the law. When you upload your own Musical Content, you must be sure that you have the permission to use such Musical Content in an Edynco Content prior to doing so. If you are unsure as to whether you have the permission to use Musical Content within the Scope of Use, then you should use Musical Content made available to you for commercial purposes by Edynco.
You warrant that all Content, uploaded by you, either from your own computer or another website/server, is either created and owned by you, or you have the necessary licenses, rights and permissions to (a) use the Content to create and display an Edynco Content as you intend and within the Scope of Use; (b) use the Content as contemplated by the Site and your Scope of Use, and (c) to grant Edynco the rights described herein. Please be aware that your use of the Content may be interpreted as a use for commercial purposes pursuant to copyright laws. Even if you believe you have certain rights to use third party Content, you should ensure that you have the appropriate rights to use such Content for commercial purposes and within the Scope of Use. We cannot, and do not intend to, provide you legal advice or assistance regarding acquisition of appropriate intellectual property rights. If you are unsure as to whether you have the appropriate rights to use the Content within your Scope of Use, you should consult an attorney.
You hereby grant to Edynco a royalty-free, perpetual license to use, copy, create, modify, display and host your Edynco Content solely to the extent necessary for Edynco to provide the Services as described herein.
All trademarks and/or service marks displayed on the Site are the exclusive property of their respective owners, and may not be used without the owner's permission.
Please notify us if you believe any of your intellectual property rights have been infringed by a User of the service. Pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA"), Edynco designates the following individual as its agent for receipt of notifications of claimed infringement:
Matjaž Jan, Attorney at Law
Odvetniška Družba Ilić Dalmatinova 11
By e-mail: matjaz.jan(at)odi.si
To be effective the notification should include: (a) a physical or electronic signature of the person authorized to act on behalf of the owner of the right being infringed; (b) identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity, and Information sufficient to permit us to locate the material; (d) information sufficient to allow us to contact the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright or intellectual property owner, agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the right being infringed. If you fail to comply with all of these requirements, your DMCA notification may not be valid.
You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove or disable the identified materials from our site without liability.
Your account will be terminated if, at Edynco sole discretion, you are determined to be a repeat infringer. Repeat infringers are users who have been the subject of more than one valid takedown request that has not been successfully rebutted.
Edynco provides a limited warranty to you that, within a thirty (30) day period after delivery, Products provided to you by Edynco shall be free from defects in materials, design and workmanship. If a Product is found to be nonconforming with this warranty within the thirty (30) day period following delivery of the Product, then you shall have the right to request a replacement Product as set forth below.
Note that this limited warranty does not in any way cover your dissatisfaction with the quality of the Edynco Content arising from or relating to the content uses to create the Edynco Content.
ALL 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 WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY MATERIALS OR SERVICES OBTAINED BY YOU FROM THE SITE, FROM US, OR FROM ANY THIRD PARTIES’ WEBSITES TO WHICH THE SITE IS LINKED, WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THE USE OF THE SERVICES, THE UPLOADING OF CONTENT, OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS OR CONTENT THROUGH THIS SITE OR THROUGH THIRD PARTIES' WEBSITES TO WHICH THE SITE IS LINKED, IS DONE AT YOUR OWN 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.
OTHER THAN AS EXPRESSLY SET FORTH IN THE PARAGRAPH HEREUNDER ENTITLED "LIMITED WARRANTY FOR PRODUCTS," EDYNCO EXPRESSLY DISCLAIMS AND PROVIDES NO OTHER WARRANTIES FOR PRODUCTS, 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.
ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOUR EXCLUSIVE REMEDY AND EDYNCO ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE SITE SHALL BE LIMITED TO THE AMOUNT YOU PAID EDYNCO, IF ANY, FOR ANY PRODUCTS AND/OR SERVICES AVAILABLE THROUGH THE SITE DURING THE SIX-MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY.
IN NO EVENT SHALL EDYNCO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, 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 THE USE OF THE SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THE SITE.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE SITE OR THROUGH THIRD PARTY WEBSITES LINKED TO FROM THE SITE.
YOU ARE SOLELY RESPONSIBLE FOR MAKING BACKUP COPIES OF ANY AND ALL OF CONTENT. EDYNCO SHALL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO YOUR CONTENT.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold Edynco, its parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of (a) your use or misuse of the Site, (b) the public performance, distribution, sharing, displaying or viewing of your Edynco Content, (c) the violation of laws, rules, regulations or terms of this Agreement, or (d) infringement by your Content, by you, or by someone using your account, of any intellectual property or any other right of any person or entity. Edynco reserves the right, at its 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 Edynco in asserting any available defenses. This indemnification section survives the expiration of your commercial license Term, and applies to claims arising both before and after the Term.
Your usage of the Site will be limited to the Scope of Use for which you have paid Edynco the Fees, for the applicable Term. If Edynco believes that you have exceeded your Scope of Use or the Term, Edynco reserves the right to convert your account to a Free User account or terminate your account without prior notice to you.
Upon registering, you will be assigned one (1) user account. Edynco limits the maximum amount of disk space per account for storing Edynco Contents and Commercial User content.
You agree that we have no responsibility or liability for the deletion or failure to store any content maintained or transmitted on or through this site. The accounts of our Commercial Users operate on shared resources. Excessive use or abuse of these shared network resources by one Commercial User may have a negative impact on all other users. Misuse of network resources in a manner that impairs network performance, including excessive consumption of CPU time, memory, disk space, and session time, is prohibited. You acknowledge that we have the right, at our sole discretion, to terminate your account, limit the number of transmissions you may send or receive through our site, or limit the amount of storage space, bandwidth, or other resources you may use.
You acknowledge that we reserve the right to convert any Commercial User account to a Free User account upon non-receipt of a Fee. Furthermore, we reserve the right to terminate any Free User account with no prior notice to you, including the deletion of any Edynco content associated therewith, if the account has been inactive for a twelve (12) month period.
Do not rely upon the Site as a primary storage space for your content. You should preserve backup copies of any digital data, information or other materials that you have uploaded.
Although the Site may be accessible worldwide, we make no representation that materials on the Site are appropriate or available for use in locations outside the Europe, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from outside the Europe do so on their own initiative and are responsible for compliance with local laws. In addition, this Site and the Services provided under this agreement may be subject to Europena Union export control regulations or the export control regulations of other countries. You agree to comply strictly with all export control laws, and assume sole responsibility for obtaining licenses to export or re-export as required.
We may terminate or suspend your use of the Site at our discretion and for any reason. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your account 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 the Site 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 the Site. 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 therewith.
The following sections of these Commercial Terms of Service will survive termination: Third Party Sites and Information, Distribution Terms, Intellectual Property, Disclaimer of Warranties, Limitation of Liability, Indemnification, Termination of Use, Governing Law, Miscellaneous.
The laws of the republic of Slovenia, Europe, will apply to all matters relating to these Terms of Service, the use of this web site and service provided through this web site, without regard to the conflicts of laws principles nor the United Nations Convention on the International Sale of Goods. You agree to submit to the exclusive personal jurisdiction and venue of the Slovenia Court.
All notices to a User or to Edynco 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 info(at)www.edynco.com, if by email, or at EDLAB d.o.o., Cesta na Brdo 85, 1000 Ljubljana, Slovenia, Europe, if by conventional mail. Notices to you may be sent either to the email address supplied for your account or to the address supplied by you when registering or updating your account. In addition, we may broadcast notices or messages through the site to inform you of changes to the site or other matters of importance, and such broadcasts shall constitute notice to you.
Any notices or communication under these Terms of Service will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by Slovenia mail, return receipt requested; (4) on the delivery date if transmitted by facsimile; (5) on the delivery date if transmitted by email; or (6) immediately if broadcast by Edynco.
If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent.
You agree that this Agreement may be assigned by Edynco, in our sole discretion, to any third party at any time. You may not transfer or assign any of your rights and obligations under this Agreement, and any attempt to do so will be null and void.
Any failure by us to enforce or exercise any provision of these Commercial Terms of Service or related rights shall not constitute a waiver of that right or provision.
In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees.