Terms of Service
This Terms of Service Agreement (the “agreement”), is an agreement between you (the “Customer”) by and between Fyre LLC, a Florida limited liability corporation with its principal office located at 101 S. Garland Ave, Suite 108, Orlando FL, 32801, (“Fyre”). By licensing rights to access and use the Services (defined below) provided by Fyre, the Customer enters this agreement in accordance with the terms and conditions hereof, and the parties agree as follows:
1.1 “Services.” The software middleware services described and specified on the applicable Purchase Order and any updates or upgrades to such services that may be generally released by Fyre to all customers from time to time.
1.2 “Fyre Technology.” The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and serve the Services via the Site, which may include, but not limited to Fyre Extension.
1.3 “Site.” Fyre’s getfyre.com website including the Fyre Technology.
1.4 “Authorized Users.” The number of identifiable unique persons consisting of Customer’s personnel and outside consultants who are authorized to access and use the Services, as specified in the applicable Purchase Order(s). Authorized Users may include Customer’s third party residents, consultants, outsourcers, contractors and other service providers.
1.5 “Affiliate.” With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer hereunder.
1.6 “Internet Data Centers.” Any of the facilities owned, leased, or controlled by Fyre and used by Fyre to provide the Services. These facilities house the Fyre Technology used for the provision of Services.
1.7 “Customer Data.” Customer’s information or other data processed, stored or transmitted by, through the Services, including without limitation personal information relating to the Customer’s personnel, customers, and prospective customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
1.8 “Purchase Order.” A document indicating that it is a “purchase order” which incorporates the terms of this Agreement in written form if mutually agreed upon and duly executed by the parties. In order to be binding, a “purchase order” must comply with the above requirements.
1.9 “Proprietary Rights.” Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
2. SUBSCRIPTION LICENSE GRANT.
Subject to the terms and conditions hereof, during the term hereof, Fyre hereby grants to Customer and its Affiliates only to the extent of Authorized Users and solely for Customer’s internal business purposes a non-exclusive, non-transferable, worldwide right and license to access the Site and use the Services. All rights not expressly granted to Customer herein are expressly reserved by Fyre.
3. USE RESTRICTIONS.
Customer covenants and agrees that its use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; and (iii) to attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the Fyre Technology; or (iv) to access, alter, or destroy any information of any customer of Fyre by any fraudulent means or device, or attempt to do so.
4. EVALUATION LICENSE OPTION.
If the applicable Purchase Order expressly provides for the evaluation license option, then Customer is hereby granted a royalty-free, non-exclusive, non-transferable, worldwide right and license to access and use the Services for evaluation purposes only for the evaluation term and for the number of Authorized Users specified on the Purchase Order. Technical support services will be provided during the evaluation period at no charge. For the duration of the evaluation license term, the Services will be provided “AS-IS”, WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE SERVICE LEVEL WARRANTY, OR ANY INDEMNITY PROVIDED HEREIN, AND ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ARE HEREBY DISCLAIMED. Upon the expiration of the evaluation term, this Agreement will terminate, unless Customer pays the initial use fees as specified in the applicable Purchase Order, in which case this Agreement shall continue without this evaluation license.
Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. As part of the Services, Fyre shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access (the “Security Standard”). Provided that Fyre is in compliance with the Security Standard, the parties agree that Fyre shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to Fyre at the time. Fyre will promptly report to Customer any unauthorized access to Customer Data promptly upon discovery by Fyre, and Fyre will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications at its expense.
6. SET-UP OF SERVICES.
On or before the delivery date specified in the applicable Purchase Order, Fyre shall complete all tasks required to make the Services accessible to Customer, including (i) implementing in the Fyre Technology any interfaces required in the applicable Purchase Order, (ii) delivering to Customer any proprietary software and related documentation necessary to access the Fyre Technology to access and use the Services, (iii) assigning all security access, passwords and user IDs necessary to access the Fyre Technology to access and use the Services, and (iv) preparing data that may be specified on the applicable Purchase Order for use with the Services.
7. ACCESS CREDENTIALS FOR SERVICES.
Fyre shall permit access to the Services only over the Internet using access credentials provided by Fyre. Access credentials will be deemed the Confidential Information of both parties.
8. TECHNICAL REQUIREMENTS FOR SERVICES.
8.1 Capacities. The Services will be rendered in a manner that will support the Authorized User requirements and other requirements provided in the applicable Purchase Order.
8.2 Scalability. The Services will be scalable in a manner that allows the Services to meet any forecasted increase provided in the applicable Purchase Order.
8.3 Internet Data Centers. The Services will be provided through Internet Data Centers that are configured consistent with prevailing industry standards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. In addition, the facility will be secured against physical and electronic intrusion in a manner consistent with prevailing industry standards. Fyre may outsource its Internet Data Center operations to subcontractors; provided, however, that Fyre shall be responsible for the performance of such subcontractors, and Fyre shall be liable for any action or inaction by such subcontractors as if performed by Fyre.
9. PERFORMANCE MONITORING OF SERVICES.
Fyre reserves the right to internally monitor Customer’s usage of the Site and Services, such as, but not limited to, product improvement purposes, including type and frequency of transmissions with the CRM, time taken to load this data, recruiting website utilization, count and timestamp of messages logged.
10. CUSTOMER DATA.
The Services provide middleware interface between Customer’s System and Data with third-party applications stipulated in Purchase Order. Any Fyre access to Customer Data will be on a pass-through basis and at no time will Fyre store any Customer Data nor will Fyre share/sell any Customer Data with any third party. Customer at all times shall maintain ownership of all Customer Data. However, Fyre may capture login settings for billing purposes.
11. PURCHASE OF ADDITIONAL SERVICES.
Customer may elect to purchase rights for additional Authorized Users and/or additional services by Purchase Order from time to time. Such additional purchases shall be governed by the terms and conditions hereof. Customer agrees that, absent Fyre’s express written acceptance thereof, the terms and conditions contained in any purchase order or other document issued by Customer to Fyre for the additional purchases, will not be binding on Fyre to the extent that such terms and conditions are additional to or inconsistent with those contained in this Agreement.
12. SUBSCRIPTION FEES.
Customer shall pay to Fyre periodic subscription fees for the Services and technical support services provided hereunder in accordance with the applicable Purchase Order.
All fees are exclusive of taxes or duties. If Fyre is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on Fyre’s net income, then such taxes and/or duties will be billed to and paid by Customer immediately upon receipt of Fyre’s invoice and supporting documentation for the taxes or duties charged.
14. TECHNICAL SUPPORT, TRAINING, AND CONSULTING SERVICES.
Technical support, phone support, or updates for the Fyre Site, Services or Technology will be provided in accordance with the applicable Purchase Order. Any additional support that Fyre may provide is on a voluntarily basis.
15. PROPRIETARY RIGHTS OWNERSHIP.
Ownership of the Proprietary Rights embodied in the Site, Services, and Fyre Technology will remain exclusively vested in and be the sole and exclusive property of Fyre and its licensors. In addition Customer hereby transfers and assigns to Fyre any rights Customer may have to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer personnel relating to the Service. The getfyre.com domain name, product names and logos associated with the Services are trademarks of Fyre or third parties, and no right or license is granted to use them.
16. MUTUAL EXCHANGE OF CONFIDENTIAL INFORMATION.
The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party (“Owner”) may disclose to the other party (“Recipient”).
16.1 Definition of Confidential Information. For purposes hereof, “Confidential Information” means (i) the terms and conditions hereof, (i) non-public aspects of Fyre’s Site and the operation thereof, Fyre Technology, and the Services and additional services provided by Fyre, and Fyre’s business and technical information, and (iii) Customer Billing Information.
16.2 Restrictions on Use and Disclosure. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.
16.3 Exclusions. The restrictions of this Agreement on use and disclosure of Confidential Information will not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
17. GENERAL SKILLS AND KNOWLEDGE.
Notwithstanding anything to the contrary in this Agreement, Customer agrees that Fyre is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of Fyre.
18. CUSTOMER REPRESENTATIONS AND WARRANTIES.
18.1 Customer represents and warrants that (i) the performance of its obligations and use of the Services (by Customer and its Authorized Users) will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the transfer of personal information of residents of the European Union outside the European Union, or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other Fyre customers of Fyre services.
18.2 Customer acknowledges that (i) Fyre does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, (ii) Customer shall use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force, (iii) Fyre is not a credit reporting agency under the Federal Credit Reporting Act (FCRA) and the software Services are that of presenting information from a Customer’s internal records and third-parties for convenience, (iv) Fyre disclaims any liability from hiring decisions made utilizing the Services.
18.3 In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, Fyre will have the right to suspend immediately any Services if deemed reasonably necessary by Fyre to prevent any harm to Fyre and its business. Fyre shall provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, Fyre shall promptly restore the Services.
19. FYRE REPRESENTATIONS AND WARRANTIES.
Fyre represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable laws or regulations of the United States or cause a breach of any agreements between Fyre and any third parties. In the event of a breach by Fyre of the foregoing warranties, Customer’s sole remedy is termination of this Agreement upon written notice to Fyre.
20. WARRANTY DISCLAIMERS.
OTHER THAN THE ABOVE LISTED WARRANTIES, NEITHER FYRE NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND FYRE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE SERVICE, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. FYRE DOES NOT WARRANT THAT THE SERVICE OR SITE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICE OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT FYRE HAS NO CONTROL OVER THE INTERNET, AND THAT FYRE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY THIRD PARTY, ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
21. DISCLAIMER OF ACTIONS OF THIRD PARTIES.
Fyre does not and cannot control the flow of data to or from Fyre’s Technology, to and from third parties, and to other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although Fyre shall use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Fyre cannot guarantee that such events will not occur. FYRE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES
22. INTELLECTUAL PROPERTY INDEMNITY.
Except for third party software including without limitation open source software, Fyre shall indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against Customer that the Fyre Technology or Services infringe on any U.S. intellectual property right of a third party; provided, however, that Fyre is notified in writing of such claim promptly after such claim is made upon Customer. Fyre will have the right to control any defense of the claim. In no event shall Customer settle any such claim without Fyre’s prior written approval. Fyre shall have no liability or obligation if the claim arises from (i) any alteration or modification to the Fyre Technology or Services other than by Fyre, (ii) any combination of the Fyre Technology or Services by Customer with other programs or data not furnished by Fyre, or (iii) any use by Customer of the Fyre Technology or Services that is prohibited by this Agreement or otherwise outside the scope of use for which the Fyre Technology or Services are intended.
23. OPTIONS FOR INFRINGEMENT CLAIMS.
If any party is enjoined from using the Fyre Technology, or if Fyre believes that the Fyre Technology may become the subject of a claim of intellectual property infringement, Fyre, at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the Fyre Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Purchase Order; or (iii) terminate this Agreement, in which case Fyre shall refund to Customer any and all subscription fees paid in advance by Customer for those Services not provided by Fyre and provide, at Customer’s request and free of charge, the Customer Data in a database document format. This Section and the preceding Section sets forth the entire liability of Fyre to Customer for any infringement by the Fyre Technology or Services of any intellectual property right of any third party. Notwithstanding the foregoing, this Section does not apply to third party software including without limitation open source software.
24. DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL DAMAGES.
EXCEPT FOR INDEMNITY OBLIGATIONS ESPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
25. LIABILITY CAP.
Except for Fyre’s indemnity expressly provided herein and Fyre’s confidentiality obligations, in no event will Fyre’s aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, will not exceed one (1) month of a subscription fee.
26. TERM OF AGREEMENT.
The initial term of this Agreement shall commence as of the Effective Date hereof and will continue for a period of one (1) year. The initial term hereof will automatically renew for successive one (1) year terms unless either party notifies the other in writing not less than thirty (30) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. Either party may choose not to renew this Agreement without cause for any reason.
27. TERM OF PURCHASE ORDER.
Any Purchase Order created under this Agreement will commence immediately upon execution by both parties, and will continue thereafter as provided in the Purchase Order; provided, however, that notwithstanding anything to the contrary herein or in any Purchase Order, all existing Purchase Orders will also terminate upon the expiration or termination of this Agreement.
28. AUTOMATIC TERMINATION.
Unless Fyre promptly after discovery of the relevant facts notifies Client to the contrary in writing, this Agreement and all Purchase Orders will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against Fyre, any assignment or attempted assignment by Fyre for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for Fyre.
29. TERMINATION FOR CAUSE.
If either party fails to comply with any of the material terms and conditions of this Agreement or Purchase Order, including without limitation the payment of any subscription license fee or reimbursement due and payable to Fyre under this Agreement, the non-defaulting party may terminate this Agreement and/or any or all Purchase Orders and any and all license rights upon twenty (20) days’ written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.
30. TERMINATION BY FYRE FOR END OF LIFE.
Fyre intends to continue to provide and support the Services for so long as Customer renews in accordance with the applicable Purchase Order; provided, however, if, Fyre determines in its sole discretion that it is no longer feasible to support the Services, Fyre may terminate this Agreement for end of life at any time by providing thirty (30) days written notice to Customer. In such a termination, Fyre shall reimburse, on a prorated basis, any subscription fees paid by the Customer.
Except for actions to protect Proprietary Rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Orlando, Florida. The arbitrator shall apply the laws of the State of Florida to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees will be awarded to the prevailing party in the arbitration.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as will be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.
Customer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without Fyre’s prior written consent. Any attempted assignment or delegation in contravention of this Section will be void and ineffective.
34. CONTINUING OBLIGATIONS.
The following obligations will survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the Confidential Information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money to Fyre hereunder.
35. FORCE MAJEURE.
Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond its reasonable control and without its fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.
36. U.S. GOVERNMENT END-USERS.
Fyre Technology and the Fyre software incorporated therein, this Site, and the Services all consist of “commercial items,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end users of this site acquire only those rights set forth herein.
37. MODIFICATION OF AGREEMENT.
Fyre reserves the right to modify the terms of this Agreement at any time by giving Customer prior notice via email designated by Customer of such modification. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS APPLICATION FOLLOWING FYRE’S POSTING PROVIDING SUBSCRIBER NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
This Agreement will be construed under the laws of the State of Florida, without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision will be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision will not affect any other provision of this Agreement, and this Agreement will continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.