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Terms of Use Agreement for the SolarCity Solar Bonds Platform

Certain Key Provisions Governing the Use of SolarCity’s Solar Bonds Platform

By using this website, you are agreeing to the terms and conditions of this Terms of Use Agreement (this “Agreement”), and you are agreeing to the following terms, among others, with respect to your use of SolarBonds.SolarCity.com (the “Platform”) as a registered User (“User”):

  • You agree that any information you provide to SolarCity Corporation, our affiliates, or our service providers will be true, accurate, current and complete.
  • You acknowledge that nothing on the Platform constitutes a recommendation to buy securities or any other type of investment advice to you by SolarCity or its affiliates (collectively, “SolarCity”), and any investment risk is solely your own. SolarCity is not a registered investment adviser or broker-dealer, and you are not an advisory or broker-dealer client of SolarCity or any of its affiliates. SolarCity has no fiduciary duty to you based on your use of the Platform or your purchase of debt investments through it.
  • You agree to be bound by any affirmation, assent or agreement you transmit to SolarCity by computer or other electronic device, and you understand that, to the fullest extent permitted by law, any notices, disclosures, forms, privacy statements, reports or other communications, including any tax-related information and documents, regarding the debt investments available on the Platform and your investment in any debt investments may be delivered by electronic means.
  • You acknowledge that SolarCity reserves the right, in our sole discretion and without notice, to change the information, materials and descriptions on the Platform and to modify or replace any of the terms of this Agreement, or change, suspend, or discontinue any or all Services at any time and for any reason or no reason.

This list does not constitute your entire Agreement with SolarCity. You alone are responsible for ensuring that you are aware of all of the terms of the Agreement and your rights and responsibilities under it. You may also have additional agreements with SolarCity Corporation and/or its affiliates, and you are responsible for understanding the content of those agreements.

Agreement

This Agreement between you and SolarCity (“we” or “us”) sets forth the terms and conditions for your access to the Platform and your use of the information, features, products, services and tools on the Platform (the “Services”).

This Agreement should be read carefully before using any Services or continuing to access the Platform. By using the Platform in any manner, including but not limited to visiting or browsing the Platform, you agree and consent to, and you agree to be bound by, this Agreement and all other operating agreements, rules, policies and procedures that may be published by SolarCity from time to time on the Platform, each of which is incorporated by reference and each of which may be updated by SolarCity from time to time without notice to you.

There may be other agreements between you and SolarCity or our affiliated entities and service providers that govern or relate to your use of the Platform or the Services. We may also offer other services from time to time that are governed by different or additional terms and conditions. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with SolarCity, or its subsidiaries, affiliates or third parties, whether related to the Platform, the Services, or otherwise.

You agree to use the Platform, the Services and all material and information posted on the Platform (“Content”) in a manner consistent with applicable laws and regulations and in accordance with the terms and conditions of this Agreement and any other applicable agreements, rules, guidelines or other conditions that govern the use of the Platform and the Services as they may be amended by us from time to time. If you do not agree to all the terms and conditions of this Agreement, you are not eligible to use the Platform or the Services.

Requirements for Using the Platform

Acceptance

You represent and warrant that you are at least 18 years old. You may not accept this Agreement if you are less than 18 years old. By accepting this Agreement, you represent that you have the capacity to be bound by it or, if you are acting on behalf of a company or entity, that you have the authority to bind such entity.

Authorized Users

Only registered Users are authorized to use the Services provided on the Platform. You may not share your User information (including User IDs, passwords and screen names) with any other person for the purpose of facilitating their access and unauthorized use of the Platform or the Services.

If you are using the Platform on behalf of any entity, you represent and warrant that you are authorized to accept this Agreement on such entity’s behalf, and that such entity agrees to indemnify us for violations of this Agreement.

Registration and Transaction Information

We will ask you to provide certain information as you apply for a membership as a User of the Services (the “Membership”). You agree to provide true, accurate, current and complete information about yourself and your institution, as applicable, and to immediately update such information in the event of any changes. In the event that you enter into a transaction on the Platform, you agree that you will also provide true, accurate, current and complete information as requested in connection with the transaction, and to immediately update such information in the event of any changes that are relevant and applicable to the transaction. You agree not to impersonate any person or entity, misrepresent any affiliation with another person, entity or association, use false headers or otherwise conceal your identity from SolarCity for any purpose.

False Representations Made on the Platform

You agree to indemnify and hold SolarCity harmless from any harm, damage, claim, demand, loss, cost, penalty, fine or expense, including attorneys’ fees, that result from any false representations made by you anywhere on the Platform.

Your Basic Rights under This Agreement

License to Use the Platform

SolarCity grants you a revocable, non-exclusive, non-transferable and limited personal license to access and use the Platform. This license is conditioned on your continued compliance with the terms and conditions in this Agreement.

SolarCity Privacy Policy

You acknowledge and agree to the terms set forth in SolarCity’s Privacy Policy, which is available through the following link: https://solarbonds.solarcity.com/privacy-policy/.

Use of Information on the Platform

Restrictions on Use of Proprietary Information

All Content on the Platform constitutes proprietary information. Except as otherwise permitted by SolarCity, no materials from SolarCity, this Platform or any other website or other publication medium owned, operated, licensed or controlled by SolarCity may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way. Except as otherwise permitted by SolarCity, you may print and download materials and information from the Platform for internal business use or for non-commercial, personal use only. If you do so, you agree to retain all copyright and other proprietary notices contained in such materials and information. With the exception of the foregoing and except as otherwise expressly permitted herein, you may not use, distribute, modify, transmit, or post the Content from the Platform for public or commercial purposes through the use of any text, images, audio, or video without SolarCity’s prior written permission.

You agree that SolarCity may, but is under no obligation or duty to, at its sole discretion and to the extent permitted by law, access, read, preserve and disclose your account information and usage history in order to: (a) comply with any applicable law, regulation, legal process, or governmental request; (b) enforce this Agreement and investigate potential violations thereof; (c) detect, prevent, or otherwise address fraud, security, or technical issues; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of SolarCity, its Users, or the public. In the event that SolarCity does monitor the Platform or the Services, SolarCity makes no representation or warranty it will take any action whatsoever in connection with any of the monitored activities, and SolarCity assumes no liability with respect thereto.

Trademarks and Images

All content, trademarks, services marks, trade names, logos and icons are proprietary to SolarCity or its affiliates, licensors or agents (including the Third Party Service Providers) and are protected under United States and other copyright, trademark and other laws. Other third-party products and brand names may be trademarks or registered trademarks of their respective owners, and may not be affiliated with SolarCity. Nothing contained in this Agreement or on the Platform should be construed as granting by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the Platform without the written permission of SolarCity or such third party that may own the trademarks displayed on the Platform. Your use of the trademarks displayed on the Platform or on any Content, except as provided herein, is strictly prohibited.

Images displayed through the Platform are either the property of, or used with permission by, SolarCity. You are prohibited from using or authorizing the use of these images unless specifically permitted under this Agreement. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity, or other regulations and statutes.

Prohibited Content

As a condition of your access to the Platform and use of the Services, you are prohibited from (i) posting, uploading, exhibiting, communicating or distributing content which violates any applicable laws, rules or regulations or which SolarCity, in its sole and absolute discretion, deems to be inappropriate, and (ii) engaging in conduct which violates any applicable laws, rules or regulations or which SolarCity, in its sole and absolute discretion, deems to be inappropriate.

Unauthorized Uses of the Platform

Unauthorized Use

You may not use the Platform in any manner that could damage, disable, overburden, or impair the Platform or any Service or interfere with any other party’s use and enjoyment of the Platform or any Service. You may not attempt to gain unauthorized access to the Platform or any Service, computer systems or networks connected to the Platform or any Service, through hacking, password mining or any other means. You further agree that you are responsible for any unauthorized use of your password that is made before you have notified us and we have had a reasonable opportunity to act on that notice. You alone are responsible for all information viewed, transactions conducted, messages posted, statements made or acts or omissions that occur within or as a result of the use or misuse of your User information. We reserve the right to suspend or cancel your password or Membership, whether or not we receive notice from you regarding unauthorized use of your password or your User information, if we suspect that it is being used in an unauthorized or fraudulent manner.

If you believe someone has used your User information to access the Platform without your authorization, please email us immediately at SolarBonds@solarcity.com.

Use of Access Devices

With the exception of applications commonly known as Web Browser software, or other applications formally promoted, endorsed or approved by SolarCity in writing, you agree not to use any software, program, application or any other device to access or log on to the Platform, or to automate the process of accessing the Platform or obtaining, downloading, transferring or transmitting any Content from the Platform.

Relationships with Third Parties

Use of Third Party Service Providers

We may use Third Party Service Providers with or without notice to you. These Third Party Service Providers may include, but are not limited to, a third-party transfer agent/registrar, third party-bank, third-party trustee, third-party custodian, and third-party auditor. You consent and authorize SolarCity to delegate the authorizations you provide us to Third Party Service Provider(s) as SolarCity deems necessary or desirable. You agree that the terms and conditions of this Agreement, including any of the other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement, inure to the benefit of such Third Party Service Providers, and such Third Party Service Providers are deemed to be third party beneficiaries of this Agreement, including any other terms, conditions, warranty disclaimers and liability disclaimers incorporated into this Agreement. You also agree that all references to “us” or “SolarCity” within this Agreement and any incorporated terms are also deemed to include, where applicable, our agents and our Third Party Service Providers.

Third Party Content

Certain portions of the Platform may contain third party content and may provide links to webpages and content of third parties (collectively “ Third Party Content”). We do not prepare, control, endorse, research, investigate, or adopt any Third Party Content. We make no representations or warranties of any kind regarding the Third Party Content, including with respect to its accuracy or completeness. We claim no responsibility whatsoever for Third Party Content on the Platform. You acknowledge and agree that SolarCity is not responsible or liable in any manner for any Third Party Content or your reliance upon Third Party Content. To the extent you use and/or rely on such Third Party Content, you do so at your own risk.

Hyperlinks

The Platform may permit you to link to other websites, including (but not limited to) the websites of Third Party Service Providers. These links are provided only as a convenience. SolarCity does not control these other sites or services, and SolarCity makes no representations or endorsements whatsoever concerning those sites or services, including with respect to their accuracy or completeness. The fact that a link to another website is available on the Platform is not an endorsement, authorization, sponsorship or affiliation with respect to such site, its owners, or its providers. We take no responsibility for the content or any other aspect of any other website. You agree that under no circumstances will you hold us liable for any loss or damage caused by use of or reliance on any content, goods or services available on other sites. You should also be aware that the terms and conditions and privacy policies of such sites may be different from those applicable to your use of the Platform and Services.

Disputes

Arbitration of Disputes and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY.

You agree that the laws of the State of California shall govern this Agreement, without giving effect to conflict of laws principles. You further agree that any dispute, claim or disagreement between you and SolarCity (a “Dispute”) shall be resolved exclusively by arbitration. You agree to the following terms governing any arbitration.

The arbitration, including the selecting of the arbitrator, will be administered by JAMS, under its Streamlined Arbitration Rules (the “ Rules”) by a single neutral arbitrator agreed on by the parties within thirty (30) days of the commencement of the arbitration. The arbitration will be governed by the Federal Arbitration Act (Title 9 of the U.S. Code). Either party may initiate the arbitration process by filing the necessary forms with JAMS. To learn more about arbitration, you can call any JAMS office or review the materials at www.jamsadr.com. The arbitration shall be held in the location that is most convenient to the Membership address that we have on file at the time the arbitration is commenced (“ Home”). If a JAMS office does not exist in the county where you live, then we will use another accredited arbitration provider with offices close to your Home.

If you initiate the arbitration, you will be required to pay the first $125 of any filing fee. SolarCity will pay any filing fees in excess of $125, and we will pay all of the arbitration fees and costs. If we initiate the arbitration, we will pay all of the filing fees and all of the arbitration fees and costs. We will each bear all of our own attorney’s fees and costs, except that you are entitled to recover your attorney’s fees and costs if you prevail in the arbitration and the award you receive from the arbitrator is higher than SolarCity’s last written settlement offer. When determining whether your award is higher than SolarCity’s last written settlement offer your attorney’s fees and costs will not be included.

Only Disputes involving you and SolarCity may be addressed in the arbitration. Disputes must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party. If either of us arbitrates a Dispute, neither of us, nor any other person, may pursue the Dispute in arbitration as a class action, class arbitration, private attorney general action or other representative action, nor may any such Dispute be pursued on your or our behalf in any litigation in any court. Claims regarding any Dispute and remedies sought as part of a class action, class arbitration, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. This means that the arbitration may not address disputes involving other persons with disputes similar to the Disputes between you and SolarCity.

The arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant under this Agreement. The arbitrator, however, is not authorized to change or alter the terms of this Agreement or to make any award that would extend to any transaction other than yours. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between us. The arbitrator will issue a decision or award in writing, briefly stating the essential findings of fact and conclusions of law.

BECAUSE YOU AND WE HAVE AGREED TO ARBITRATE ALL DISPUTES, NEITHER OF US WILL HAVE THE RIGHT TO LITIGATE THAT DISPUTE IN COURT, OR TO HAVE A JURY TRIAL ON THAT DISPUTE, OR ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS PERTAINING TO ANY DISPUTE. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING ON THE PARTIES AND MAY BE ENTERED AND ENFORCED IN ANY COURT HAVING JURISDICTION, EXCEPT TO THE EXTENT IT IS SUBJECT TO REVIEW IN ACCORDANCE WITH APPLICABLE LAW GOVERNING ARBITRATION AWARDS. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.

YOU AGREE TO HAVE ANY DISPUTE ARISING OUT OF YOUR USE OF THE SERVICES DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW, AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE BUSINESS AND PROFESSIONS CODE OR OTHER APPLICABLE LAWS. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY.

No Recommendation of Investments

You agree that nothing contained on the Platform shall constitute a representation or warranty by SolarCity with respect to any prospective investment, and that the information regarding investments on the Platform and included in any materials presented by SolarCity has been prepared without reference to any particular User's investment requirements or financial situation. SolarCity is not recommending that you invest through the Platform, or otherwise providing investment advice through the Platform. SolarCity is not a registered investment adviser or broker-dealer, and you are not an advisory or broker-dealer client of SolarCity or any of its affiliates. SolarCity has no fiduciary duty to you based on your use of the Platform or your purchase of debt investments through it.

There can be no assurance that any debt investment issued by SolarCity that you purchase through the Platform will achieve its investment objective or avoid substantial losses. SolarCity’s debt investments offered through the Platform entail a high degree of risk, and Users may lose some or all of their investment. Any investment risk is solely your own. Users are urged to consult with their personal advisors before investing in the debt investments issued by SolarCity and offered through the Platform.

Scope of This Agreement

Other Agreements

Your rights to use certain material available on or through this Platform may be subject to separate agreements with SolarCity or with third parties (“ Other Agreements”). Such Other Agreements may include agreements related to the purchase of debt investments or other documents related to your use of the Platform and transactions on it. Particular pages or features of this Platform with Content supplied by SolarCity and Third Party Content in connection with proposed securities offerings may have different or additional terms (“Special Terms”), which will be disclosed to you when you access those pages or features, and by accessing or using such pages and features, you will be deemed to have agreed to the applicable Special Terms. If there is a conflict between this Agreement and the Special Terms, the Special Terms will govern with respect to such pages or features or content. In the event of a conflict between this Agreement and one or more Other Agreements, the terms of such Other Agreement(s) shall govern and control.

Warranty Disclaimers

SolarCity has no special relationship with or fiduciary duty to you. You acknowledge that SolarCity has no control over, and no duty to take any action regarding any of the following: which Users gain access to the Platform; what Content you access via the Platform; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content or the Services. You release SolarCity from all liability from or relating to your having acquired or not acquired Content through the Platform or the Services. SolarCity makes no representations concerning any Content contained in or accessed through the Platform or the Services, and SolarCity will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Platform or the Services.

SolarCity does not represent, warrant, covenant, guarantee, or promise any specific results from use of the Platform or the Services. The Platform and the Services, including any Content or information contained within or made available through the Platform or the Services and including any advice provided in connection with the Services, is provided “as is” with no representations or warranties of any kind, express or implied, including, but not limited to, implied warranties of merchantability, title, fitness for a particular purpose non-infringement and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. You assume total responsibility and risk for your use of this Platform and the Services.

Some states do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you. You may have other rights, which vary from state to state.

Any material downloaded or otherwise obtained through the use of the Platform is done at your own discretion and risk, and you are solely responsible for any damage to your computer or other electronic system or loss of data that results from the download of any such material. No information, whether oral or written, obtained by you from SolarCity or through or from SolarCity will create any warranty not expressly stated in these terms.

Limitation of Liability and Indemnification

You agree to indemnify and hold SolarCity and its affiliates, agents, employees and licensors (including Third Party Service Providers) harmless from any claim, demand, loss, costs or expense, including attorneys’ fees, made by any person arising out of (i) your access to and/or use of the Platform and the Services, including any investment made on or through the Platform or the Services, (ii) any act, error, or omission of you or any user of your account in connection therewith, including in connection with any investment made by you or any other person on or through the Platform or the Services, and including but not limited to matters relating to incorrect, incomplete, or misleading information, or other misrepresentations or omissions; libel; infringement of any copyright; trade name, trademark, service mark, or other intellectual property; or violation of any proprietary or privacy right and/or (iii) any other act or omission or violation of any applicable law.

Under no circumstances, including but not limited to a negligent act, will SolarCity or its affiliates, agents, employees, or licensors (including Third Party Service Providers) be liable for any damages of any kind that result from the use of, or the inability to use, all or any part of the Platform or the Services, even if any such party has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you.

In no event will SolarCity or its Third Party Service Providers be liable to you and/or any third party for any tort, contract or any other liability arising in connection with the use of the Platform or the Services, or for reliance on any information or services provided by SolarCity and/or its Third Party Service Providers, Users, advertisers or any other person using the Platform. SolarCity and its Third Party Service Providers will under no circumstances be liable to you and/or any third party, regardless of the form of action, for any loss of profits, goodwill, use, data or other intangible losses, or any direct, indirect, special, consequential, incidental or punitive damages whatsoever, even if SolarCity or its Third Party Service Providers have been advised of the possibility of such damages, resulting from: (i) the use or the inability to use the Platform or the Services; (ii) the timeliness, deletion, misdelivery, or failure to store any user data, communications or personalization settings; (iii) the cost of getting substitute goods and services resulting from any products, data, information or services purchased or obtained or messages received or transactions entered into, through or from the Platform or the Services; (iv) unauthorized access to or alteration of your transmissions or data; (v) statements or conduct of anyone on the Platform, including any false or misleading statements or omissions by other Users of the site, advertisers, Third Party Service Providers, or any other party; (vi) the use, inability to use, unauthorized use, performance or non-performance of any third party, even if the third party has been advised previously of the possibility of such damages; (vii) any investment made in connection with the Platform or the Services, including any investment that results in a loss to you; (viii) any other act or omission by any other third party, including any Third Party Service Provider; or (ix) any other matter relating to the Platform, the Services or SolarCity. You agree that you will not in any way hold or seek to hold SolarCity responsible for any selection or retention of, or the acts or omissions of, third parties (including Third Party Service Providers) in connection with the Platform or the Services.

Modifications to This Agreement and the Platform

We reserve the right, in our sole discretion, without any obligation and without any notice to you, to change, improve or correct the information, materials and descriptions on the Platform and to change, suspend, or discontinue any or all Services (including without limitation, the availability of any feature, database, or content) at any time and for any reason or no reason. In addition, we reserve the right to modify or replace any of the terms of this Agreement, and we will provide you notice of any material modifications to this Agreement. All modifications we make to this Agreement shall become part of this Agreement and are automatically effective once posted on the Platform or by notice provided to you via electronic mail. This Agreement may not be orally amended. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without any notice or liability to you. It is your responsibility to check the terms of this Agreement periodically for changes. Your continued use of the Platform or Services following the posting of any changes to this Agreement constitutes your acceptance of and agreement to those changes.

The information and materials on the Platform may contain typographical errors or inaccuracies. Any dated information is published as of its date only, and we do not undertake any obligation or responsibility to update or amend any such information. We further reserve the right, in our sole discretion, to block or otherwise discontinue your access and use of the Platform at any time and for any reason and with no notice to you. You agree that we will not be liable to you or to any third party for or in connection with any such modification, suspension or discontinuance.

Termination

The license granted under this Agreement will terminate if SolarCity believes that any information provided by you, including your e-mail address, is no longer current or accurate, or if you fail to otherwise comply with any term or condition of this Agreement and all rules and guidelines for the Platform or the Services. Upon and after any such violation, you agree to cease accessing and using the Platform and the Services.

SolarCity reserves the right to terminate, at any time, your account and Membership with SolarCity (as well as access to the Platform and the Services), without giving notice or a reason for such termination to you. If you wish to terminate your account and Membership, you may do so by following the instructions on the Platform. All provisions of this Agreement shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Entire Agreement; Voidability; Severability

With the exception of any Special Terms and Other Agreements, this Agreement constitutes the entire agreement between SolarCity and you with respect to the Platform and the Services and it supersedes all prior or contemporaneous communications, agreements and understandings between SolarCity and you with respect to the subject matter hereof. The information, materials and services provided on the Platform are not provided to and may not be used by any person or entity in any jurisdiction where the provision or use thereof would be contrary to applicable laws, rules or regulations of any governmental authority or regulatory or self-regulatory organization or clearing organization or where SolarCity is not authorized to provide such information or services. Some products and services described on this Platform may not be available in all jurisdictions or to all clients. This Agreement is void where prohibited by law and the right to access the Platform and use the Services is revoked in such jurisdictions. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of that right or any further rights under this Agreement.