Terms of Use Agreement

This Terms of Use Agreement is effective as of November 9, 2016.

Welcome to the Articulate.com website (the "Site"). Articulate ("Articulate" or "We") maintain(s) this Site as a service to our visitors and customers. By accessing or using the Site (or any applications, including mobile applications made available by Articulate), you are agreeing to comply with and be bound by the following terms of use. These terms of use affect your legal rights and obligations and form a binding agreement between Articulate and you (the "Agreement"). Please review the following Agreement terms carefully. If you do not agree to these terms, you should not review information or obtain goods or products from this Site.

Basic Terms

In using the Site, you agree to the following basic terms:

  1. You must be at least 18 years old to use the Site.
  2. You may not post violent, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive content via the Site.
  3. You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, Articulate prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to Articulate upon registration and at all other times will be true, accurate, current and complete, and you agree to update your information as necessary to maintain its truth and accuracy.
  4. You agree that you will not solicit, collect or use the login credentials of other Articulate users.
  5. You are responsible for keeping your password secret and secure.
  6. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential information via the Site, including your or any other person's credit card information, social security or alternate national identity numbers, non-public phone numbers or non-public email addresses.
  7. You may not use the Site for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Site and your Content (defined below), including copyright laws.
  8. You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials (collectively, "User Content") that you submit, post or display on or via the Site.
  9. You must not change, modify, adapt or alter the Site or change, modify or alter another website so as to falsely imply that it is associated with the Site or Articulate.
  10. You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications (a/k/a "spam") to any Articulate users.
  11. You must not use domain names or web URLs in your username without prior written consent from Articulate.
  12. You must not interfere or disrupt the Site or servers or networks connected to the Site, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any Articulate page is rendered or displayed in a user's browser or device.
  13. You must not create accounts with the Site (or otherwise attempt to access the Site or any content or other material on the Site) through unauthorized means, including by using an automated device, script, bot, spider, crawler or scraper.
  14. You must not use the Site in any manner that could disable, overburden, damage, or impair the Site, or interfere with any other use of the Site.
  15. You must not attempt to restrict another user from using or enjoying the Site and you must not encourage or facilitate violations of this Agreement or any other Articulate terms.
  16. Violation of this Agreement may, in Articulate's sole discretion, result in termination of your Articulate account and/or access to the Site. You understand and agree that Articulate cannot and will not be responsible for the User Content posted on the Site, and you use the Site at your own risk. If you violate the letter or spirit of this Agreement, or otherwise create risk or possible legal exposure for Articulate, we can stop providing all or part of the Site to you.

General Terms and Conditions

1. Scope of Agreement

This Agreement constitutes the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties, and understandings with respect to the Site; the content, products, or services provided by or through the Site; and the subject matter of this Agreement. Articulate reserves the right, in its sole discretion, to change this Agreement ("Updated Agreement") from time to time. Unless we make a change for legal or administrative reasons, we will provide reasonable advance notice before the Updated Agreement becomes effective. You agree that we may notify you of the Updated Agreement by posting it on the Site, and that your use of the Site after the effective date of the Updated Agreement (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Agreement. Therefore, you should review this Agreement and any Updated Agreement before using the Site. The Updated Agreement will be effective as of the time of posting, or such later date as may be specified in the Updated Agreement, and will apply to your use of the Site from that point forward. This Agreement will govern any disputes arising before the effective date of the Updated Agreement. We reserve the right to modify, suspend, or terminate access to the Site for any reason, without notice, at any time, and without liability to you. If we terminate your access to the Site, your User Content may no longer be accessible, but it may persist and appear on the Site (e.g., if your User Content has been reshared by others).

2. Articulate Content and User Content

The Site contains content owned or licensed by Articulate ("Articulate Content"). Articulate Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Articulate, Articulate owns and retains all rights in the Articulate Content and the Site. There are two types of User Content: (a) downloadable assets, and (b) articles.

  1. (a) Downloadable Assets. An example of a downloadable asset is a PowerPoint template that Articulate provides. You will have a limited, nonexclusive, nontransferable, terminable right to use, reproduce, display, and distribute downloadable assets in a commercial work (including the right to showcase it as part of your portfolio). All other rights are reserved. Accordingly, you may not distribute, modify, or host downloadable assets as your own content (or permit any third party to do so).
  2. (b) Articles. Examples of articles are short-form articles and longer-form e-books. You will have a limited, nonexclusive, nontransferable, terminable right to use, reproduce, and distribute articles, provided that you provide appropriate attribution, as follows. In connection with any distribution of an article, you must supply Articulate's and the article author's name as the providers of the article. You may not use articles for commercial purposes, meaning any purpose intended for commercial advantage or monetary compensation. You are not permitted to create derivative works of articles. If you remix, transform, or build upon an article, you may not distribute the modified material. You may not apply legal terms or technological measures that legally restrict others from using the articles (or any form thereof) in any manner that is otherwise permitted by this license.

There are no implied licenses hereunder, and any right no expressly granted are reserved by Articulate and its licensors. Without limiting the generality of the foregoing, you will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Articulate Content, and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Articulate Content. If you post User Content to the Site, then the following terms apply.

Articulate does not claim ownership of any User Content that you post on or through the Site. Instead, you hereby grant to Articulate a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use the User Content that you post on or through the Site, for all purposes described in and contemplated by this Agreement, as well as for Articulate's publicity purposes (including as part of a user testimonial on the Site). You represent and warrant that: (i) you own the User Content posted by you on or through the Site, or otherwise have the right to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of your User Content on or through the Site does not violate, misappropriate or infringe on the rights of any third party, including privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of User Content you post on or through the Site; and (iv) you have the legal right and capacity to enter into this Agreement in your jurisdiction. The copying, redistribution, use, or publication by you of any such matters or any part of the Site, except as allowed by Section 4, is strictly prohibited. You do not acquire ownership rights to any Articulate Content, or other user content, document, or other materials that you view (but do not post) through the Site. The posting of User Content on the Site does not constitute a waiver of any right in such information and materials.

3. Trademarks

Articulate®, Articulate® Quizmaker, Articulate Engage®, Articulate® Online, Articulate® Presenter, Articulate Storyline®, Storyline®, Articulate® 360, Rise®, Peek®, and Articulate® Live are the trademarks or registered trademarks of Articulate Global, Inc., in the United States and/or other countries. Adobe® and Flash®, are trademarks or registered trademarks of Adobe Systems Incorporated, in the United States and/or other countries. PowerPoint® is a registered trademark of Microsoft Corporation in the United States and/or other countries. All other trademarks and registered trademarks are the property of their respective owners.

4. License termination

Upon termination of this Agreement, all licenses and other rights granted to you under this Agreement will immediately cease.

5. Editing, Deleting, and Modification

You agree that Articulate is not responsible for, and does not endorse, Content posted within the Site. Articulate does not have any obligation to prescreen, monitor, edit, or remove any Content. If your Content violates this Agreement, you may bear legal responsibility for that Content. You agree that any Content will be non-confidential and non-proprietary and we will not be liable for any use or disclosure of Content. You acknowledge and agree that your relationship with Articulate is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place Articulate in a position that is any different from the position held by members of the general public, including with regard to your Content. None of your Content will be subject to any obligation of confidence on the part of Articulate, and Articulate will not be liable for any use or disclosure of any Content you provide. Without limiting the generality of the foregoing, we reserve the right in our sole discretion to edit or delete any documents, information, or other content appearing on the Site.

6. Indemnification

You (and also any third party for whom you operate an account or activity on the Site) agree to defend (at Articulate's request), indemnify and hold Articulate and its affiliates and its and their employees, officers, directors, agents, successors and assigns (collectively, the "Articulate Parties") harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Site or those conducted on your behalf): (i) your User Content or your access to or use of the Site; (ii) your breach or alleged breach of this Agreement; (iii) your violation of any third-party right, including any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You will cooperate as fully required by Articulate in the defense of any claim. Articulate reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Articulate.

7. Assignment

Your right to use the Site and/or any licenses granted under this Agreement are not assignable or transferable, including by operation of law or otherwise. Any attempted assignment or transfer in violation of the foregoing is null and void.

8. Warranty Disclaimer

THE INFORMATION FROM OR THROUGH THE SITE IS PROVIDED "AS-IS" AND "AS AVAILABLE" TO THE FULLEST EXTENT POSSIBLE BY LAW. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE ARTICULATE PARTIES, ON BEHALF OF THEMSELVES AND ANY AND ALL THIRD PARTY USER CONTENT PROVIDERS, DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED OR STATUTORY AS TO THE SITE, ARTICULATE CONTENT, ANY THIRD PARTY USER CONTENT, OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO ARTICULATE OR VIA THE SITE, ALL OF WHICH ARE HEREBY DISCLAIMED (INCLUDING THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS). THE INFORMATION AND SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS. THE ARTICULATE PARTIES ON BEHALF OF THEMSELVES AND ANY AND ALL THIRD PARTY USER CONTENT PROVIDERS, DO NOT REPRESENT OR WARRANT THAT THE SITE OR THIRD PARTY USER CONTENT WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING VIRUSES AND OTHER FORMS OF MALWARE. THE ARTICULATE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS AND/OR THIRD PARTY USER CONTENT) ON THE SITE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THE ARTICULATE PARTIES ON BEHALF OF THEMSELVES AND ANY AND ALL THIRD PARTY USER CONTENT PROVIDERS,DO NOT WARRANT THAT YOUR USE OF THE SITE OR THIRD PARTY USER CONTENT IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE ARTICULATE PARTIES, ON BEHALF OF THEMSELVES AND ANY AND ALL THIRD PARTY USER CONTENT PROVIDERS,SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THIS AGREEMENT.

BY ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITE.

THE ARTICULATE PARTIES DO NOT ENDORSE THIRD PARTY USER CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY THIRD PARTY USER CONTENT.

9. Limitation of Liability

UNDER NO CIRCUMSTANCES WILL THE ARTICULATE PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SITE; (B) THE ARTICULATE CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITE; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE ARTICULATE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SITE; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) ANY ERRORS OR OMISSIONS IN THE SITE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE ARTICULATE PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITE). IN NO EVENT WILL THE ARTICULATE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE ARTICULATE PARTIES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00).

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES, OR INJURIES THAT ARISE OUT OF ARTICULATE'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SO INSUFFICIENT THAT THEY MIGHT ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE ARTICULATE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE ARTICULATE PARTIES.

BY ACCESSING THE SITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

ARTICULATE IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE ALL ARTICULATE PARTIES FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

10. Use of Information; feedback

We reserve the right, and you authorize us, to use and assign of all information regarding Site uses by you and all information provided by you in any manner, consistent with our Privacy Policy. It is Articulate's policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested and to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, Articulate does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. If, despite our policy, you choose to send us content (other than “Content”), information, ideas, suggestions, or other materials, you further agree that Articulate is free to use any such content, information, ideas, suggestions or other materials, for any purposes whatsoever, including developing and marketing products and services, without any liability or payment of any kind to you.

11. Third-Party services

We allow access to or advertise third-party merchant sites ("Merchants") from which you may purchase certain goods or services. You understand that we do not operate or control the products or services offered by Merchants. Merchants are responsible for all aspects of order processing, fulfillment, billing, and customer service. We are not a party to the transactions entered into between you and Merchants. You agree that use of such Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY US, EXPRESSED, IMPLIED, OR OTHERWISE, INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE. Certain portions of products licensed under Patent No. 5,490,216.

12. Third-Party Merchant Policies

All rules, policies (including privacy policies), and operating procedures of Merchants will apply to you while on such sites. We are not responsible for information provided by you to Merchants. We and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other.

13. Privacy Policy

Our Privacy Policy, as it may change from time to time consistent with Section 1, is a part of this Agreement and is incorporated herein by this reference.

14. Payments

You represent and warrant that if you are purchasing something from us or from Merchants that (i) any credit information you supply is true and complete, (ii) charges incurred by you will be honored by your credit card company, and (iii) you will pay the charges incurred by you at the posted prices, including any applicable taxes.

15. Links to Other Web sites

The Site contains links to other websites. We are not responsible for the content, accuracy, or opinions express, in such websites, and such websites are not investigated, monitored, or checked for accuracy or completeness by us. Inclusion of any linked website on our Site does not imply approval or endorsement of the linked website by us. If you decide to leave our Site and access these third-party sites, you do so at your own risk.

16. Information and Press Releases

The Site contains information and press releases about us. While this information was believed to be accurate as of the date prepared, we disclaim any duty or obligation to update this information or any press releases. Information about companies other than ours contained in the press release or otherwise, should not be relied upon as being provided or endorsed by us.

17. Territorial Restrictions

The information provided within the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Articulate to any registration requirement within such jurisdiction or country. We reserve the right to limit the availability of the Site or any portion of the Site, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that Articulate provides.

Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Site, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

The effective date of these Terms of Use is set forth above. This Agreement were written in English (US). To the extent any translated version of this Agreement conflicts with the English version, the English version controls.

18. Miscellaneous

This Agreement shall be treated as though it were executed and performed in New York, New York, and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). Any cause of action by you with respect to the Site (and/or any information, products, or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in Section 8 and Section 9. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against either party. All legal proceedings arising out of or in connection with this Agreement shall be brought solely in New York, New York. You expressly submit to the exclusive jurisdiction of said courts and consents to extra-territorial service of process. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. As used herein, the term "including" means "including without limitation". Section headings are included for reference and convenience purposes only and shall not be used in interpreting this Agreement. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.