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Terms of Service
SUBSCRIBER TERMS OF SERVICE
PLEASE NOTE: IF YOU ARE UNDER AGE 18, PLEASE OBTAIN YOUR PARENT'S OR GUARDIAN'S CONSENT TO REGISTER AND SUBSCRIBE. IF YOU ARE UNDER AGE 13, PLEASE HAVE YOUR PARENT OR GUARDIAN REGISTER AND SUBSCRIBE FOR YOU. WE DO NOT PERMIT REGISTRATION AND SUBSCRIPTION BY ANY CHILD UNDER 13 YEARS OF AGE.
This registration governs your subscription of certain subscription-based offerings, which are provided to you via our site at www.goswimtv.com (and/or successor, affiliated or associated domains or through various mobile or device-oriented distribution platforms). Our sites are referred to as “Go Swim Sites” or "Sites." The offerings made available through the Sites are referred to as "Go Swim Offerings" or "Offerings" and include these "Subscription-based Offerings" made available at www.goswimtv.com. Go Swim Sites and Go Swim Offerings are owned or licensed and operated and distributed by Go Swim Productions, LLC and/or any and all of its affiliates (collectively referred to herein as “Go Swim” and “we” and through similar words such as “us,” “our,” etc.). Notwithstanding anything to the contrary contained in these Subscriber Terms of Service, we reserve the right to terminate or refuse any individual user’s access to any of Go Swim Sites or Offerings for any reason at any time. No part of Go Swim Sites or other aspect of Go Swim Offerings, including the Subscription-based Offerings, are being offered as a public accommodation of any type or in any manner whatsoever.
These Subscriber Terms of Service may apply to you variously in your capacity or capacities, as follows:
(A) a parent, guardian and/or individual child using any of Go Swim Offerings; or
(B) a swim team coach, instructor, owner, leader, personnel or other affiliated or authorized user involved with a swim team or other training group (a "Training Group" and such personnel, individually and collectively, "Training Group Users"). The term "Group Owner" refers specifically to the entity or organization that owns or has legal authority over a Training Group and/or you in your capacity as a Training Group User.
(For Training Group Users and Group Owner Only): Please note: If you are a Group Owner (or authorized representative) and you are registering on behalf of one or more Training Group Users and are subscribing to the Go Swim Offerings for use by such Training Group Users, each and every Training Groups User will also be deemed to have agreed to these Subscriber Terms of Service based on your registration and subscription at this Go Swim Site, and you agree to cause each such Training Group User to read and abide by these Subscriber Terms of Service. As a Training Group User, you are also agreeing these Subscriber Terms of Service in your capacity and status as a coach or other type of interested party of a Group Owner in respect of one or more of its Training Groups which are being managed or coached by you. Please be advised that, as a Training Group User, there may from time to time be offerings featured or made available to you specially because of your status as a Training Group User. The Group Owner with which your Training Group is affiliated, and not Go Swim, will be responsible and accountable for any decisions, actions and omissions in respect of granting or authorizing access to you, other Training Group(s), coaches, instructors, other employees and other users of any Subscription-based Offerings that may be offered to a Group Owner and to which the Group Owner elects to subscribe, pay for or otherwise make access available to you or your Training Group. You understand and acknowledge that your access may bring you in contact with personal or other information about other users through your Group Owner's account or subscription or usage history, and that failure to abide by the confidentiality and discretion appropriate for dealing with such information may result in liability of or enforcement against you personally and/or for your Group Owner. Where applicable and marked as "For Training Group Users and Group Owner Only" below, additional terms and conditions may apply to your use of any such subscription, paid and/or otherwise specially restricted offerings, if any.
Access and Use of Subscription-based and Other Offerings
a. One Account Only. You may maintain only one account (i.e., one user ID and password combination). You may not register nor maintain multiple accounts. If Go Swim discovers that you have registered for multiple accounts, Go Swim may in its sole discretion decide which account(s) to terminate. Without waiving any rights or remedies that may be available to us, Go Swim shall have no obligation nor liability to you or the Group Owner in respect of any such terminated account. Access to and use of Go Swim Offering are conditioned upon using a self-designated or assigned login and password. The login and password are provided for the use by you as an individual user, and are not transferable to any other users, even others within your Group Owner. You agree to maintain your login and password strictly confidential. You will be solely responsible and liable, and Go Swim shall have no liability, for any and all activities that occur associated with use of your login and password. Misuse of Go Swim Sites or Go Swim Offerings including improper access of any account area or unauthorized sharing of the login and password, may result, at Go Swim’s sole discretion, in the cancellation of your and/or the Group Owner’s access and/or account or the pursuit of other remedies.
b. For Child Users: If you are a child under 13 years old, you may not register or subscribe for Go Swim Offerings without consent and approval from your parent or legal guardian. A child under 13 years old participating on a Training Group may be invited by a Training Group User to use Go Swim Offerings and will be permitted to begin the registration process for himself or herself without a parent or guardian but use or access will be restricted until a parent or guardian approves or assumes responsibility for the child user's account. A child that has registered through such Training Group User's and his or her Group Owner's involvement will only be permitted to use Go Swim Sites or Offerings for so long as Go Swim reasonably believes that such access was consented to by the child's parent or guardian based on such Training Group User's or Group Owner's separate actions and representations (see Section 1.d. below).
d. For Training Group Users or Group Owner: Go Swim makes available features and tools that permit Training Group Users (including other personnel of a Group Owner) to connect with team participants, members or others through Go Swim Sites or Offerings in order to provide tutorial, instructional and similar services to such team participants. If you are a Training Group User, you will be registered to an account on our Sites that allows you to invite the members of the Training Group you are associated with to register and subscribe and use and access Go Swim Offerings using the applicable registration mechanism made available by Go Swim for Training Group Users on or through the Sites. As a Training Group User, you may not register a child for an account or use and access of Go Swim Offerings unless you have the consent of such child's parent or legal guardian. IF YOU ARE A TRAINING GROUP USER AND YOU INVITE (OR REGISTER) ANY CHILD TO ACCESS AND USE GO SWIM OFFERINGS, YOU REPRESENT AND WARRANT THAT YOU HAVE RECEIVED EXPRESS CONSENT FROM SUCH CHILD MEMBER’S PARENT OR LEGAL GUARDIAN FOR YOU TO USE THE CHILD'S PERSONAL INFORMATION TO INVITE (OR REGISTER) THE CHILD FOR GO SWIM SITES AND OFFERINGS INCLUDING ANY INFORMATION YOU DISCLOSE OR PROVIDE TO GO SWIM IN CONNECTION WITH THE INVITATION (OR REGISTRATION) OF SUCH CHILD. WITHOUT LIMITING THE FOREGOING, YOU FURTHER AGREE TO BE BOUND BY THESE TERMS ON BEHALF OF SUCH CHILD, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF GO SWIM SITES AND OFFERINGS BY SUCH CHILD, FOR SO LONG AS THE CHILD IS NOT OTHERWISE ASSOCIATED WITH OR ASSUMED BY AN ACCOUNT VALIDLY REGISTERED OR APPROVED BY A PARENT. You hereby agree to indemnify, defend and hold harmless Go Swim and its affiliates, suppliers and licensors and its and their employees, officers, directors, agents and representatives against any and all claims, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to (a) your violation of any provision, representation or warranty this Section 1.d.; (b) the use of Go Swim Sites and Offerings by any child you invite; (c) your failure to obtain sufficient parental or legal guardian consent as and when necessary; or (d), as applicable, your registration of an account for a child to use and access Go Swim Sites and Offerings.
e. For Training Group Users and Group Owner: In your own individual capacity as a Training Group User, you may use Go Swim Offering(s) (and any other products or services offered by Go Swim to which you have access and right of use) solely for advancing the training and skills of the individual swimmers of your Training Group using Go Swim Offerings by subscription or otherwise, and any uses that might conflict with that purpose shall be deemed a violation of these Subscriber Terms of Service. Your use in your capacity as a Training Group User may be terminated or suspended by us or your Group Owner if your Group Owner ceases its or your access or account with us or this Subscriber Terms of Service is terminated or suspended for any reason.
a. Fees. Go Swim charges fees for access to and use of the Subscription-based Offerings (“Fees”). By agreeing to these Subscriber Terms of Service, you hereby agree to pay all Fees and charges specified on the Go Swim Sites for the level of Subscription-based Offerings you are subscribing. All Fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Sites and/or Offerings.
b. Changes to Fees; New Fee-based Offerings. Go Swim may increase the Fees in the future or in the future include new or modified offerings via Go Swim Sites or Offerings and charge new or additional fees for the use and access of such new or modified offerings. You will not be charged for any increased Fees or any offerings that are added to, or become fee-based as part of, this or another Subscription-based Offering unless at such time you are notified of such increases or new Fees and are given the opportunity to agree to the same (or thereafter actually commence or continue to access and use the relevant Offerings).
c. Payment Methods. Go Swim will charge any Fees or other payments you authorize, to the account and credit card you designate. You authorize the credit card or account you designate to pay any amounts described herein and authorize Go Swim, or any other company that acts as a billing agent for Go Swim, to continue to attempt to charge all sums described herein to your credit card or account when such Fees are owing and until such Fees are paid in full. You agree to update information regarding your credit card and account promptly upon any changes or upon Go Swim's request, including any time the previously provided or then-existing information is no longer valid. If payment is not received by Go Swim from your credit card issuer or other payment method, you agree to pay all amounts due upon demand by Go Swim.
d. Credit Card Authorization. If Go Swim permits you to use a credit card to pay for any Fees related to Go Swim Offerings, you will be asked to provide Go Swim with a credit card number from a card issuer that we accept. Go Swim may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your credit card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
e. Changes in Price; No Refunds. Go Swim may at any time, upon notice required by applicable law, change the price of Go Swim Offerings or any features thereof, institute new charges or fees, or charge a fee for any of Go Swim Offerings or Sites or any part thereof where a fee was not previously charged. All Fees charged are final and nonrefundable.
f. Cancellation Policy. You may cancel at any time but you will only be able to cancel future charges associated with a subscription. Depending on your subscription level, this means the subscription will be cancelled at the end of the subscribed period which has already been charged and paid for prior to the cancellation, and will not automatically renew for additional periods. Prior to the effectiveness of your cancellation, you may continue to enjoy the service at the same levels of access and benefits to the full extent of your subscription.
Information about You
a. From time to time, you may be required to provide additional information about yourself or your Group Owner (including in the case of students or parents/guardians, the Training Group the child user is enrolled at), and you will be responsible for keeping such information up-to-date and accurate and complete at all times.
b. We have the right to send you emails relating to your access or use of Go Swim Offerings and/or your registration or account from time to time. Notifications sent to the email address then-associated with your account will be deemed to have been received, even if such email address is not updated or accurate.
c. Following termination of your registration, we retain the right to archive and use your information for referring to later in the event you should decide to re-register or otherwise as may be required under applicable law.
Go Swim Offerings
a. Go Swim Offerings and many portions of Go Swim Sites provide content and data that are provided by the users such as you or the Group Owner you are affiliated with or enrolled at, third party suppliers and/or other third party users. Go Swim has no control over such third party content, and do not endorse and are not responsible or liable for any content, data, products, information or other materials promoted or displayed, or any websites that they may link to. We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by use or reliance upon any such content.
b. Without limiting the foregoing clause (a) of this Section 4, any informational materials provided on Go Swim, including without limitation the opinions and/or recommendations of any authors and/or moderators, are not intended to substitute for any professional educational, medical, legal, psychiatric, employment or other advice. Go Swim makes no representations or warranties regarding, and expressly disclaims any and all liability concerning, any action by any person following the information offered or provided within or through Go Swim Sites or Go Swim Offerings. If you have concerns or a situation in which you require professional advice, then you should consult with an appropriately qualified professional in the relevant field.
b. In connection with accessing any of Go Swim Offerings through a website, via a browser or media player, or through use of an app or other software, you are not permitted to download or make copies of any programming content or other materials featured or made available through Go Swim Offerings except as may be permitted by "fair use" exception and applicable laws, and in such cases, only for your personal and non-commercial and non-distributed uses.
c. Access and use of Go Swim Offerings may require use of a media player or other software, application, plug-in or downloadable codec or other coding to make the programming content available or accessible. Any and all such software and accompanying information and data are licensed on a non-exclusive, non-transferable basis to you by Go Swim. Go Swim and its suppliers and licensors retain full and complete right, title, and interest in and to any and all such software, other technology and any and all intellectual property rights therein and thereto. You may not redistribute, sell, decompile, reverse-engineer or disassemble any such software or other technology, even if severable from the rest of Go Swim Offerings.
d. Go Swim reserves all rights in and to Go Swim Sites, Go Swim Offerings and any of our third party suppliers' and licensors' content, software and technology, to the extent not expressly granted herein.
Restrictions on Use; Rules of Conduct
a. You may not use Go Swim Sites or Go Swim Offerings for any purpose that is unlawful or prohibited by these Subscriber Terms of Service, or any other purpose not reasonably intended by Go Swim.
b. You are not allowed to create a database, collection, arrangement or compilation comprising all or any portion of the materials appearing on Go Swim Sites or acquired via access or use of any Go Swim Offering(s). Without limiting the foregoing, without both Go Swim’s and your Group Owner’s express prior approval in writing, you will not engage in any systematic extraction of data or data fields from Go Swim Offerings even if your intention or purpose may not be to create a database collection, arrangement or compilation.
c. No data, content or other materials made available on any Go Swim Site(s) or otherwise through use or access of any Go Swim Offering(s) may be used, copied, reproduced, distributed, transmitted, broadcast, displayed, shown in public performance, sold, licensed, or otherwise exploited for any purposes whatsoever, other than for your Group Owner’s internal business purposes in accordance with the services subscribed to thereby. The foregoing does not limit your ability to use data, content or other materials (such as personal contact and related information) provided by you in your capacity as an individual user, you may use such information within the context of Go Swim’s products and services for your own personal uses, subject to any obligations or limitations of authorization you may be subject to (including in respect of your Training Group or your Group Owner).
d. You will not:
- decompile, disassemble or otherwise reverse engineer any media player, app or other software component of any Go Swim Offerings, or use similar means to discover the source code or trade secrets therein, or otherwise circumvent any technological measure that controls access thereto;
- encumber, transfer, sublicense, distribute, reproduce, create derivative works from or otherwise modify any products or services made available through access to Go Swim Offering;
- rent, lease, sell, assign or otherwise transfer rights in or to, or make available for timesharing, application service provider or service bureau use, Go Swim Offerings in whole or in any part;
- use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of Go Swim Offerings;
- disclose, harvest, or otherwise collect information, including e-mail addresses, or other private information about any third party without that party’s express consent; or
- knowingly permit any third party to do any of the foregoing. e. You agree not to take any of the following actions in connection with your access to Go Swim Sites or use of any Go Swim Offerings:
- feature, submit, publish, describe, refer to or include any personal information, such as first and last name, address or other identifying characteristics or traits, about any individual without their express consent; notwithstanding anything to the contrary, you may not feature or include any personal information about any child under the age of 13 (including, without your parent's or guardian's consent, your own information if you are yourself under 13 years of age) for any reason whatsoever;
- abuse, harass, threaten, impersonate or intimidate others, or post on Go Swim Sites or via any Go Swim Offerings, or transmit to other users via Go Swim Sites or Go Swim Offerings, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, discriminatory, racially offensive or illegal material;
- contribute any User Submission that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party;
- engage in any activity intended to obtain password, account, or private information from any user;
- transmit unwanted email or other communications;
- submit stories or comments linking to affiliate programs, multi-level marketing schemes, sites/blogs repurposing existing stories (source hops) or off-topic content;
- take any action that might impose an unreasonable or disproportionately large load on our infrastructure;
- interfere or attempt to interfere with the proper working of Go Swim Sites or Go Swim Offerings or any other activities conducted on Go Swim Sites or via any Go Swim Offerings; or
- bypass any measures we may use to prevent or restrict access to Go Swim Sites or Go Swim Offerings. f. Notwithstanding anything to the contrary contained in these Subscriber Terms of Service or any agreement involving Go Swim and relating to the relevant Group Owner, no information submitted by you as an individual shall in any way be deemed to be privacy protected, confidential or proprietary, even if you expressly label such information to be private, personal, confidential or proprietary. Go Swim has no privacy or confidentiality obligations to you in respect of such information to you personally or to any entity associated with your Group Owner or the Training Group your child is enrolled at. Any information you may post or communicate using the functionality of any of Go Swim Offerings or in public, broadcast, generally accessible or multi-recipient communication to Go Swim or any party affiliated with Go Swim will be deemed to be “known by the general public” and Go Swim shall bear no fault, responsibility, obligation or liability therefor, even if Go Swim Offering was used in part in relation thereto.
a. Client acknowledges that Go Swim or one or more of its other affiliates (and its and their respective licensors and suppliers) own all right, title, and interest in (i) any and all Go Swim Offerings, including without limitation any software and other intellectual property therein or provided in connection therewith; and (ii) all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names used by Go Swim in connection with providing the products and services. Go Swim welcomes any suggestions on improving any Go Swim Offering, but in making such suggestions, Client acknowledges and agrees that such suggestions will become the property of Go Swim, and Go Swim has no obligation to compensate Client for such suggestions. Client’s right to use Go Swim Offering does not include a license to the underlying technology used to provide any Go Swim Offering.
WARRANTY DISCLAIMER/LIMITATION OF LIABILITY
a. YOU AGREE THAT YOUR ACCESS AND USE OF GO SWIM SITES AND GO SWIM OFFERINGS SHALL BE AT YOUR SOLE RISK, AND THAT ALL CONTENT AND SERVICES MADE AVAILABLE ON OR BY WAY OF GO SWIM SITES AND/OR GO SWIM OFFERINGS ARE PROVIDED TO YOU “AS IS.”
b. TO THE FULLEST EXTENT PERMITTED BY LAW, GO SWIM, OUR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH GO SWIM SITES, GO SWIM OFFERINGS, OUR OTHER PRODUCTS AND/OR SERVICES, AND YOUR USE OF ANY THEREOF.
c. GO SWIM MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF ANY CONTENT ON GO SWIM SITES, VIA GO SWIM OFFERINGS, OR ANY SITES OR OTHER RESOURCES OR SERVICES ACCESSIBLE THEREBY OR THEREFROM, OR ANY OTHER REPORTING, INSIGHT, ANALYTICS OR ADVICE THAT YOU MAY RECEIVE FROM US, AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF GO SWIM SITES OR GO SWIM OFFERINGS, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM GO SWIM SITES OR GO SWIM OFFERINGS, AND/OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH GO SWIM SITES OR USE OF GO SWIM OFFERINGS BY ANY THIRD PARTY.
d. GO SWIM DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY IN ANY CONTENT FEATURED OR LINKED FROM GO SWIM SITES OR VIA GO SWIM OFFERINGS.
e. IN NO EVENT WILL GO SWIM BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING ALTERNATIVE CONTENT OR PROGRAMMING) ARISING OUT OF OR IN CONNECTION WITH THESE SUBSCRIBER TERMS OF SERVICE, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT GO SWIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. GO SWIM’S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS.
f. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Change of Status; Termination.
a. Your access or use of all or any aspect of the services and/or products availed by Go Swim including without limitation all or any aspects of Go Swim Offerings, may be suspended or terminated by us at any time in our sole discretion. You may appeal our decision to terminate or suspend your access or use thereof by sending us an email to [email protected] To the extent we terminate or suspend your access or use thereof, our sole obligation will be to consider such an appeal, and our decision on such appeal will be in our sole discretion and shall be final and binding. All of your obligations (but not the benefits except as expressly provided herein) and Go Swim’s rights provided in these Subscriber Terms of Service shall survive any termination or suspension of your account or access/use rights.
b. For Training Group Users or Group Owner: If your affiliation with your Training Group or Group Owner changes, and/or your Group Owner terminates its or your access or account with us, you may reregister on your own behalf or, if applicable, Go Swim may provide you with continued access based on your existing registration provided you update or modify your contact or other info that may relate to your former Training Group or Group Owner promptly. In such event, you may only use Go Swim Sites and/or those portions of Go Swim Offerings to which you still have access solely for your own personal benefit or for the benefit of a new "Group Owner" you may become affiliated with. Until your account becomes affiliated with the account of a new or different “Group Owner,” and until such time, you will be subject to these Subscriber Terms of Service as an individual, and may no longer have the benefits and protections of your former Group Owner or your former Group Owner’s agreement with Go Swim. Your continued access to any content subscribed, paid or specially restricted to such former Group Owner will terminate upon your termination of employment or authorization, as managed by your Group Owner. If, for whatever reason, your access to such content of such former Group Owner is not terminated, due to inadvertence or other reasons, you agree to cease further use of such data or content for any purpose whatsoever, unless otherwise expressly authorized by such former Group Owner.
a. These Subscriber Terms of Service shall be governed by the internal laws of the State of Maryland, without regard to conflicts of law principles.
c. If any provision of these Subscriber Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Subscriber Terms of Service, which shall remain in full force and effect. All terms and conditions that by their terms are intended or reasonably expected to survive any termination or expiration hereof shall survive any termination or expiration for whatever reason.
d. No waiver of any term of these Subscriber Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Subscriber Terms of Service shall not constitute a waiver of such right or provision.