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Terms of ServiceRevised: May 8, 2017

1. ACCEPTANCE OF TERMS

Credly, Inc., a Delaware corporation with its primary place of business located at 404 5th Avenue, 3rd Floor, New York, NY, and its agents and affiliates (“Credly”) make digital micro-credentialing services, websites, and applications (collectively, together with any other services, websites and applications offered by Credly including at www.credly.com and digitalme.credly.com the “Service”) available subject to the following Terms of Service ("TOS"). As used herein, “you” refers to the person and/or entity accessing, downloading and/or using the Service in any manner.

The following agreements are incorporated by reference into the TOS: 1) the Credly Privacy Policy and 2) the Application Developer and “Open Credit” API License Agreement (collectively, the TOS, the Privacy Policy and the API License Agreement are referred to herein as the “Agreements”).

By accessing, downloading or using the Service, you agree to be bound by the Agreements. You may wish to print or save a copy of the Agreements for your records. Credly reserves the right, at its sole discretion, to update the Agreements at any time. You can review the most current version of the TOS at any time at the URL for this page (https://digitalme.credly.com/tos).

Digitalme is the trading name for Radiowaves Schools Limited, a company incorporated in England and Wales (registered company number 05774430) whose registered office is located at Studio 24, 30 – 34 Aire Street, Leeds, West Yorkshire LS1 4HT (“Digitalme”). Digitalme is an appointed agent of Credly and is authorized by Credly to (1) promote the Service (2) conclude contracts for the provision of the Service between you and Credly (3) provide account management and first and second line support services to you. Digitalme may also provide associated services to you, such as design and consultancy services in relation to digital credentials. If you chose to purchase such associated services from Digitalme, your contractual relationship will be with Digitalme and subject to separate terms and conditions to be agreed with you.

2. GRANT OF RIGHTS

Subject to your compliance with all of the terms and conditions of the Agreements, Credly grants you a non-exclusive, revocable, non-transferable, non-sublicensable, limited license to access and use the Service.

3. REGISTRATION

(a) You may browse the Service without registering an account to use the Service, but you understand that some features of the Service may not be accessible to you unless you register. In registering for the Service, you agree to: (1) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data"); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Credly has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Credly may suspend or terminate your account and deny you access to the Service.

(b) In lieu of registering for the Service, you may also log in to the Service using credentials associated with your account at third-party services such as Facebook, LinkedIn or Twitter (collectively, “Third-Party Service”). If you choose to log in using an account from a Third-Party Service, Credly may: (1) have access to certain information that you make available through the Third-Party Service; (2) contact you via an e-mail address associated with your account at the Third-Party Service; and (3) post status updates, notes, photos, videos and other materials to the Third-Party Service on your behalf pursuant to the permissions that you grant. You acknowledge that all terms of use, policies and guidelines established by the Third-Party Service apply to your use of your account from that Third-Party Service to interact with the Service and you are responsible for compliance with such terms, policies and guidelines.

(c) You are fully responsible for all activities that occur under your account. Do not share your account or password with anyone. You agree to notify Credly immediately of any unauthorized use of your password or account or any other breach of security.

(d) You represent that you are: (1) over the age of thirteen (13); (2) of legal age to form a binding contract; and (3) not a person barred from using the Service under the laws of the United States or any other applicable jurisdiction.

(e) If Credly has reason to suspect that you are not in compliance with any of the foregoing, it may suspend or terminate your account and deny you access to the Service.

4. ISSUING AND RECEIVING CREDIT

(a) Users of the Service can create or issue micro-credentials based upon criteria established by the issuer (“Credentials”). You acknowledge and agree that the issuer of a Credential (“Issuer”) is solely responsible for the criteria for issuance of a Credential, and any dispute relating to the issuance or receipt a Credential must be resolved solely between the Issuer and any third party including the party receiving the Credential (“Earner”).

(b) You understand that Credly plays no role in determining the value or veracity of a Credential, and Credly does not endorse or vouch for the qualifications of any Issuer or Earner. You agree and acknowledge that you are solely responsible for determining the value and veracity of each Credential and the qualifications of each Issuer and Earner.

(c) Deletion or cancelation of Issuer accounts will not trigger the deletion of Credentials associated with that Issuer which are currently held by Earners. You acknowledge and accept Credly’s commitment to hosting earned Credentials of Earners so long as an Earner chooses to maintain and not delete any individual earned Credential or their entire Earner account. You acknowledge and agree that Credly will continue to host earned Credentials of Earners regardless of the status of any Issuer account responsible for issuing the Credentials of the Earner. This Section 4(c) does not impact an Issuer’s ability to revoke a Credential under terms otherwise set forth by that Issuer.

5. VERIFIED ACCOUNTS

(a) In some cases, Credly may present users with the ability to obtain a verified account if the user meets the requirements established by Credly. If you seek to obtain a verified account, you represent and warrant that all the information you provide is authentic, accurate, current and complete.

(b) Credly confers verified accounts to let users know that the verified account holder has submitted information requested by Credly for authentication purposes. However, Credly cannot and does not guarantee that any account holder, whether verified or unverified, is the person he or she purports to be.

6. RESPONSIBILITY FOR CONTENT

(a) All Credentials, information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you are responsible for all Content that you upload, post, e-mail, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service are similarly responsible for all Content they upload, post, e-mail, transmit or otherwise make available through the Service (“User Content”).

(b) Credly has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although Credly reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the foregoing, Credly shall have the right to remove any Content, including but not limited to, Your Content or User Content that violates the Agreements or that it deems objectionable.

7. RIGHTS TO CONTENT AND SERVICE

(a) Credly does not claim ownership of Your Content. However, in order for you to be able to use the Service for the intended purpose of allowing public sharing of Credentials, you hereby grant Credly a perpetual, worldwide, royalty-free, non-exclusive, sub-licensable, transferable license: (i) to use, copy, translate, distribute, reproduce, modify, adapt, publicly perform and publicly display Your Content in connection with the provision of the Service by Credly on your behalf and (ii) if you are an Issuer or other organization providing Credentials, certifications or other credentials for Earners, on behalf of such Earner, and without regard to whether a commercial relationship currently exists between the Issuer and Credly (that is, Earners will continue to have access to, and Credly will continue to display, earned Credentials); and (iii) to display generic, non-personally identifiable examples of credentials and badges in Credly marketing materials. Sharing of personal information shall also be governed by the Credly Privacy Policy. The technical processing and transmission of data associated with the Service, including Your Content, may require: (1) transmissions over various networks; and (2) changes to conform and adapt to technical requirements of connecting networks or devices.

(b) Except with respect to Your Content and User Content, you acknowledge and agree that Credly and its licensors own all rights associated with the Service and the Content, including but not limited to: (1) patents, patent services, patent disclosures, inventions (whether or not patentable or reduced to practice) and any improvements thereto, together with all reissues, continuations, continuations-in-part, divisionals, revisions, extensions and/or reexaminations thereof; (2) trademarks, service marks, trade dress, trade names, logos, corporate names, domain names and all other source identifiers (whether registered or unregistered), and all registrations and services for registration thereof (including, but not limited to, all translations, adaptations, derivations and combinations of the foregoing), together with all the goodwill associated therewith; (3) copyrights, mask works, copyrightable works and works of authorship (whether registered or unregistered), and all registrations and services for registration thereof and all associated moral rights; (4) computer software (including, but not limited to, all source code, object code, libraries and technical elements therein), data, databases and documentation therefore; (5) trade secrets and other Confidential Information (as defined below); and (6) all other intellectual property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license or otherwise (collectively “Intellectual Property Rights”). Credly makes no claim to the trademarks, brands or images associated with individual Credentials nor to the copyrights to any metadata associated with the Credentials.

(c) You may not (and you may not allow any third party to): 1) copy, modify, create a derivative work from, decompile, decode, reverse engineer, reverse assemble or otherwise attempt to discover any source code in the Service; 2) sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Service; 3) attempt to access or derive the source code or architecture of the Credly Content, Website or any part of the Service; and 4) access the Service by any means other than through the interface provided by Credly and as expressly authorized under the Agreements.

(d) If you elect to provide or make available to Credly any suggestions, comments, ideas, improvements or other feedback concerning the Service (collectively, “Suggestions”), Credly shall be free to use, disclose, reproduce, modify, license, transfer and otherwise utilize and distribute your Suggestions in any manner, without credit or compensation to you.

(e) The CREDLY name and logo are trademarks and service marks of Credly (the “Credly Marks”). You agree not to display or use in any manner any Credly Marks without Credly’s prior written consent. The Agreements do not grant you a license or permission to use any of the Credly Marks.

8. USER CONDUCT

In connection with your use of the Service, you shall not:

(a) upload, post, e-mail, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;

(b) stalk or otherwise harass another person or entity;

(c) impersonate any person or entity, including, but not limited to, Credly personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(d) create serial accounts for disruptive or abusive purposes or squat on accounts to prevent legitimate use by others;

(e) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

(f) upload, post, e-mail, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationship – for example, inside information or other proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;

(g) upload, post, e-mail, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;

(h) upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;

(i) issue mass unsolicited Credentials or continue to issue Credentials to any user after such user has requested that no further Credentials be issued;

(j) upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(k) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects the ability of other users to use the Service;

(l) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

(m) intentionally or unintentionally violate any applicable local, state, national or international law or regulation;

(n) use spiders, crawlers, robots or any other means to access the Service or substantially download, reproduce or archive any portion of the Service;

(o) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Service (including, but not limited to, Credentials and your account) or your access to or use of the Service; or

(p) modify, damage, disrupt, disable, overburden, impair, alter or interfere with the use, features, functions, operation, security or maintenance of the Service or the rights or use and enjoyment of the Service by any other person or entity in any manner.

9. PAYMENT

If you purchase any service that Credly offers for a fee, either on a one-time or subscription basis (“Paid Plans”), you agree to pay the applicable fees for the Paid Plans (including all sales, use, value-added and similar taxes) as they become due. Your failure to pay any fees when due may subject your account to suspension or termination.

10. INDEMNIFICATION

You agree to indemnify and hold Credly and its parents, subsidiaries, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, due to or arising out of: (a) Your Content; (b) your violation of the Agreements; or (c) your violation of any rights of another party.

11. MODIFICATIONS TO SERVICE

Credly reserves the right at any time and from time to time to modify, suspend, or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Credly shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

You acknowledge and agree that, unless otherwise agreed between you and Credly (or an appointed agent) in a separate written agreement (in which case support shall be provided in accordance with such agreement), Credly may, but is not obligated to, provide you with support, software upgrades, enhancements or modifications of the Service.

12. TERMINATION

(a) You agree that Credly may, under certain circumstances and without prior notice, immediately terminate your account or access to the Service. Cause for such termination shall include, but not be limited to: (1) any breach or violation of any of the Agreements or other incorporated agreement, guideline or rule; (2) any request or order issued by a court or a law enforcement or other government official; (3) a request by you (for example, self-initiated account deletions); (4) discontinuance or material modification of the Service; (5) unexpected technical or security issues or problems; (6) extended periods of inactivity; and (7) your engagement in fraudulent or illegal activities; and (8) your failure to pay any fees due Credly. You agree that all terminations for cause shall be made in Credly's sole discretion and that Credly shall not be liable to you or any third party for any termination of your account or access to the Service.

(b) In addition to Section 12(a), if you access the Service using a free account, you agree that Credly may terminate your account for any reason or no reason at all upon ten (10) days’ written notice (including by email).

(c) Upon termination of your account or access to the Service for any reason other than discontinuance of the Service, you shall still be responsible for any fees due and owing to Credly (or an appointed agent).

13. THIRD PARTY SITES AND EXTERNAL LINKS

The Service or third parties using the Service may provide links to other websites or resources. You acknowledge and agree that Credly is not responsible for the availability of such external sites or resources and does not endorse, and is not responsible for, any content, advertising, products, services or other materials on or available through such sites or resources (collectively, “External Materials”). Credly is not responsible or liable, directly or indirectly, for External Materials or any third parties with whom you connect via the Service, including any representations, warranties, or loss or damage of any kind.

14. DISCLAIMER OF WARRANTIES

(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. CREDLY AND ITS PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, THE “CREDLY PARTIES”) EXPRESSLY DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER CONDITIONS, WARRANTIES OR OTHER TERMS WHICH MIGHT HAVE EFFECT BETWEEN THE PARTIES WITH RESPECT TO THE SERVICE, OR BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING ANY IMPLIED CONDITIONS, WARRANTIES OR OTHER TERMS RELATING TO SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, FITNESS FOR ANY PARTICULAR PURPOSE OR ABILITY TO ACHIEVE A PARTICULAR RESULT.

(b) THE CREDLY PARTIES MAKE NO WARRANTY THAT: (1) THE SERVICE WILL MEET YOUR REQUIREMENTS; (2) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (4) THE CONTENT AVAILABLE THROUGH THE SERVICE IS OF A PARTICULAR QUALITY, IS ACCURATE, CURRENT OR COMPLETE; OR (5) THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED.

(c) ANY MATERIAL DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICE, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH MATERIALS.

IF YOU ARE A CONSUMER RESIDING IN THE EUROPEAN ECONOMIC AREA, THE DISCLAIMER OF WARRANTIES ABOVE SHALL NOT APPLY TO THE EXTENT PROHBITED BY THE CONSUMER RIGHTS ACT 2015 IN REALTION TO THE PROVISION OF DIGITAL CONTENT, GOODS, AND SERVICES.

15. LIMITATION OF LIABILITY

(a) YOU UNDERSTAND AND AGREE THAT THE CREDLY PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR CREDLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OF OR INABILITY TO USE THE SERVICE; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR CONTENT RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (5) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL THE CREDLY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT EXCEED ONE THOUSAND US DOLLARS ($1000) IN TOTAL.

(b) YOU UNDERSTAND AND AGREE THAT BY USING THE SERVICE, YOU MAY BE EXPOSED TO CONTENT THAT IS OFFENSIVE, INDECENT OR OTHERWISE OBJECTIONABLE. UNDER NO CIRCUMSTANCES SHALL THE CREDLY PARTIES BE LIABLE IN ANY WAY FOR ANY CONTENT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE.

(c) THE CREDLY PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS OF DELIVERY OR ACTIVATION, DELETION, INADVERTENT MIS-DELIVERY, OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

IF YOU ARE A CONSUMER RESIDING IN THE EUROPEAN ECONOMIC AREA, THE LIMITATION OF LIABILITY ABOVE SHALL NOT APPLY TO THE EXTENT PROHBITED BY THE CONSUMER RIGHTS ACT 2015 IN REALTION TO THE PROVISION OF DIGITAL CONTENT, GOODS, AND SERVICES.

16. NO THIRD-PARTY BENEFICIARIES

You agree that there shall be no third-party beneficiaries to the Agreements.

17. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Credly’s Agent for Notice of Copyright Claims (as listed below) the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and e-mail address; (e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Credly’s Agent for Notice of Copyright Claims can be reached as follows:

  • Agent for Notice of Copyright Claims
  • Copyright Claims Department
  • Credly, Inc.
  • 404 Fifth Avenue
  • New York, NY 10018

Please note that this procedure is exclusively for notifying Credly that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the Digital Millennium Copyright Act (“DMCA”), including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.

Claims that Intellectual Property Rights other than copyright is being infringed should be directed to Credly at: infringement@credly.com. Credly may, in its sole discretion, terminate the accounts of those who are accused of copyright or other intellectual property infringement.

18. GENERAL PROVISIONS

(a) Entire Agreement. The Agreements constitute the entire agreement between you and Credly concerning your use of the Service, superseding any prior or contemporaneous agreements between you and Credly with respect to the subject matter hereof.

(b) Assignment. You may not assign or delegate any right or obligation under the Agreements, by operation of law or otherwise, without the prior written consent of Credly. Credly may assign or delegate any right or obligation under the Agreements, by operation of law or otherwise, without your consent.

(c) Choice of Law and Forum. The Agreements and the relationship between you and Credly shall be governed by the laws of the State of New York, without regard to conflict of law principles (other than where there is any conflict with European consumer protection laws that cannot be excluded). Any action, proceeding, controversy or claim between you and Credly arising out of or relating to this Agreement shall be brought in the United States District Court for the Southern District of New York or, if federal jurisdiction is not available, in the Supreme Court of New York County, and each party hereby submits to the personal jurisdiction of such courts with respect to such actions. YOU HEREBY WAIVE YOUR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION OR PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF, OR RELATING TO, THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.

(d) CLASS ACTION WAIVER. YOU AND CREDLY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL (OR CORPORATE) CAPACITY (OR IN THE CASE OF CREDLY, IN ITS CORPORATE CAPACITY) AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

(e) Telephone Consumer Protection Act. Credly may use your information to make business, informational and collections calls relating to the Services to all telephone numbers, including cellular numbers or mobile devices, you choose to provide on your account or in registering for any of the Services. You agree such calls may be pre-recorded messages or placed with an automatic telephone dialing system. In addition, you agree that Credly may send non-marketing service or account related text messages to cellular phone numbers you provide to Credly, and you agree to accept and pay all carrier message and data rates that apply to such text messages. If you choose to provide an e-mail or other electronic address on your account, you acknowledge and consent to receive business and informational messages relating to the Services at such address, including collections messages, and, if you are an individual, you represent and warrant that such address is your private address and communications to that address are not accessible or viewable by any other person.

(f) Non-Waiver. The failure of Credly to exercise or enforce any right or provision of the Agreements shall not constitute a waiver of such right or provision.

(g) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its unenforceability.

(h) Survival. The provisions of this Agreement that should by their nature survive termination of this Agreement shall survive such termination.