21CT, INC., USE AGREEMENT and LICENSE
(Rev. 1.0. Last Updated May 20, 2012)
PLEASE READ THIS USE AGREEMENT AND LICENSE CAREFULLY BEFORE ACCESSING OR USING THIS WEBSITE.
1. YOUR ACCEPTANCE
1.1. THIS USE AGREEMENT AND LICENSE CONTAINS THE TERMS AND CONDITIONS GOVERNING USE OF THIS WEBSITE AND ALL SERVICES PROVIDED ON THE WEBSITE.BY EXPRESSLY ASSENTING TO THE TERMS AND CONDITIONS OF THIS USE AGREEMENT AND LICENSE AND/OR BY USING AND/OR VISITING THIS WEBSITE YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.THIS USE AGREEMENT AND LICENSE APPLIES TO ALL USERS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS USE AGREEMENT AND LICENSE, DO NOT USE THIS WEBSITE.
1.2. Although we may attempt to notify you when major changes are made to this Agreement, you should periodically review the most up-to-date version at http://www.21ct.com/legal/use-agreement-and-license/, We may, in our sole discretion, modify or revise This Agreement at any time, and You agree to be bound by such modifications or revisions. Nothing in this Agreement shall be deemed to create any third-party rights or benefits.
2.1. “21CT,” “We” and “Our” refer to 21CT, Inc., a Delaware corporation and its affiliates and subsidiaries, including but not limited to 21st Century Technologies, Inc. and 21CT Services, Inc.
2.2. “21CT Community” refers to a portion of the Website identified as a Community site, including but not limited to all web pages that begin with the URL address http://www.21ct.com or http://21ct.com.
2.3. “21CT Content” refers to Content made available or provided by 21CT on or through the Website.
2.4. “21CT Website” and “Website” refer to all Content and Services available through the domain name 21CT.com, including but not limited to any 21CT Community.
2.5. “Services” means all services and resources offered or enabled via the Website by 21CT or Users, including but not limited to (i) software downloads, and (ii) any 21CT Community.
2.6. “Agreement” refers to this Use Agreement and License and all terms and conditions therein.
2.7. “Content” refers to software, source code, object code, analytics, scripts, utilities, build files, text, comments, postings, games, animation, graphics, photos, images, icons, sounds, music, videos, interactive features and the like, and includes but is not limited to any work in which copyright or other proprietary or intellectual property rights reside.
2.8. “Member” refers to a person who has established a membership account with 21CT. Each Member is also a User.
2.9. “Member Content” refers to Content published on, or posted, provided or uploaded to, the Website by a Member.
2.10. “User” refers to any person who visits or uses the Website.
2.11. “You” refers to the person who is viewing or using the Web Site, and includes Users and Members.
2.12. “Your Member Content” refers to Member Content published on, or posted, provided or uploaded to, the Website by You.
3. 21CT WEBSITE
4. WEBSITE ACCESS
4.1. 21CT hereby grants You permission to use the Website as set forth in This Agreement, provided that: (i) You do not decompile, reverse engineer or otherwise attempt to discover the source code of the Website or the Content; (ii) You do not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; (iii) You do not to copy, reproduce, distribute, republish, frame, download, transmit, modify, adapt, create derivative works based on, rent, lease, loan, sell, assign, distribute, display, perform, license or sublicense all or any part of the Website or the Content, or the display, feel, selection and arrangement of the Website, except as expressly authorized herein; (iv) You do not circumvent, disable or otherwise interfere with security related features of the 21CT Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the 21CT Website or the Content therein; and (v) you otherwise comply with this Agreement.
4.2. Members are permitted to link to Content on the Website (such as by hyperlink, web-site or email).
4.4. You agree not to use or launch any data mining or extraction methods or automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Website in a manner that sends more request messages to the 21CT servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, 21CT grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. 21CT reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes.
4.5. 21CT, in its sole discretion, may (but has no obligation to) monitor or review the Content and Services at any time. 21CT may at any time without notice and in its sole discretion: (a) terminate a Service, access to or use of any Content, any Community, or an area of the Website where Content is posted; and (b) disclose any information related to your use of a Service or Content, or the substance of any of Your Member Content, as 21CT deems necessary to comply with applicable law, regulation, legal process or governmental request. You agree that you will not disclose any personally identifiable information about any child under the age of 13 years.
4.6. You understand that when using the 21CT Website, you may be exposed to Content from a variety of sources, and that 21CT is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against 21CT with respect thereto, and agree to indemnify and hold 21CT, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
4.7. 21CT reserves the right to discontinue or cease operation, permanently or temporarily, intentionally or unintentionally, of the 21CT Website, or any aspect thereof, at any time for any reason or none at all. 21CT may block, restrict, disable, suspend or terminate Your access to all or part of the Website, Services or Content at any time in 21CT’s sole discretion, without prior notice to You and without liability to You, whether or not you have paid for membership.
4.8. You acknowledge and agree that You are legally, solely and personally responsible for all or any information created or developed, in whole or in part, by You that is published, posted, uploaded, hosted, or shared on the Website.
5. INTELLECTUAL PROPERTY RIGHTS OF 21CT
5.1. The 21CT Content and Services, as well as their selection and arrangement, are owned by or licensed to 21CT and are protected by copyrights, trademarks, patent rights, trade secrets, unfair competition and all other intellectual property and proprietary rights (collectively, "Intellectual Property Rights"), and any unauthorized reproduction, disclosure, display or other use of the 21CT Content and Services may violate such laws and this Agreement. 21CT Content may not be reproduced or distributed unless expressly permitted by 21CT. Except as expressly provided herein, 21CT grants no express or implied rights to use the 21CT Content or Services. 21CT reserves all rights not expressly granted herein in and to the Website, 21CT Content, and Services.
5.2. Nothing in This Agreement requires 21CT to provide access to all 21CT Content or Services to any User. 21CT reserves the right to charge for or impose other restrictions on licensed use of any 21CT Content or Services.
5.3. The trademarks, logos and service marks ("Marks") displayed on the Website and design, layout or “look and feel” of this Website (“Trade Dress”) are the property of 21CT or other third parties. The Marks and Trade Dress are protected by law, including trade dress, trademark, unfair competition and other laws, and may not be copied or imitated in whole or in part. You are not permitted to use or copy the Marks or Trade Dress without the prior written consent of 21CT or such third party that may own the Marks or Trade Dress, and this Agreement conveys no express or implied rights to use the Marks or Trade Dress. 21CT and the 21CT logos are trademarks of 21CT. For a current list of 21CT's Marks, as well as certain third-party Marks, please refer to the posted link: http://www.21ct.com/legal/trademark-policy/
5.4. Services or Content encompassing any software code, including programs, tools, utilities, files and otherwise, and accompanying documentation that are made accessible via the Website (collectively, "Software") are subject to intellectual property rights (including but not limited to patent, copyright, and trade secret) of 21CT and/or its suppliers. Use of such Software is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Site page(s) accompanying the Software, or posted with the Software downloads or at the Site page where the Software can be accessed, and are incorporated herein by this reference. You will not be able to use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement. Absent a license agreement that accompanies the Software, or in the case of Software which 21CT has posted to or provided via a 21CT Community, use of the Software will be governed by this Agreement. You agree that you will not decompile, reverse engineer or otherwise attempt to discover the source code of the Software. The Software is made available solely in accordance with the license agreement. Without limiting the foregoing, unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or reproduction of the Software to any other server or location for further reproduction, redistribution or use on a service bureau basis. Any unauthorized use, copying or distribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Any Software which is downloaded from or made available via the Website for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is 21CT, Inc.
6. MEMBER CONTENT and LICENSES TO CONTENT POSTED TO A 21CT COMMUNITY
6.1. 21CT and the 21CT Website may now or in the future permit the publishing, posting, uploading, hosting or sharing (collectively, “Publication”) of Member Content to a 21CT Community.
6.2. You shall be personally, solely and legally responsible for Your Member Content, any Member Content created or developed in whole or in part by You, and the consequences of Publication of such Member Content. In connection with Your Member Content, you affirm, represent, and/or warrant that You own or have the necessary licenses, rights, consents, and permissions to use and authorize 21CT to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all of Your Member Content and to enable Publication, inclusion and use of Your Member Content in the manner contemplated by the Website and This Agreement. You understand and acknowledge that 21CT does not guarantee any confidentiality with respect to Publication of Your Member Content.
6.3. You hereby grant 21CT a worldwide, non-exclusive, royalty-free, irrevocable, perpetual, sublicensable and transferable license to use, modify, access, display, reproduce, distribute, prepare derivative works of, display, and perform Your Member Content posted to a 21CT Community and to practice, make, use, sell, offer to sell, and import any invention that incorporates or uses such Member Content.
6.4. You hereby grant each Member a worldwide, non-exclusive, royalty-free license to use, modify, access, display, reproduce, distribute, prepare derivative works of, display, and perform Your Member Content posted to a 21CT Community and to practice, make, use, sell, offer to sell, and import any invention that incorporates or uses such Member Content. You have the right to remove Your Member Content from the 21CT Community, and no license rights are granted or conveyed by You by this paragraph 6.4 as to any Content that is not published or posted on a 21CT Community. The license rights granted by this paragraph 6.4 to each Member are irrevocable as to Content that contains Your Member Content and was created before the date Your Member Content was removed from the 21CT Website.
6.5. From time to time 21CT may post 21CT Content to a 21CT Community (“21CT Community Content”). 21CT hereby grants each Member a worldwide, non-exclusive, revocable, royalty-free license to use, modify, access, display, reproduce, distribute, prepare derivative works of, display, and perform 21CT Community Content and to practice, make, use, sell, offer to sell, and import any invention that incorporates or uses such 21CT Community Content. 21CT reserves the right to remove 21CT Community Content from the 21CT Community and to revoke any license rights granted to such Content; and no license rights are granted or conveyed by 21CT by this paragraph 6.5 as to any Content that is not, or no longer, published or posted on a 21CT Community.
6.6. You acknowledge that you will receive no payment, remuneration or other financial consideration for Your Member Content from 21CT or any Member pursuant to this Agreement.
6.7. In connection with Your Member Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant 21CT all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage 21CT or any third party; (iii) submit material that is unlawful, obscene, vulgar, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. 21CT may remove or disable access to such Content and/or terminate a User's access for uploading such material in violation of This Agreement at any time, without prior notice and at its sole discretion.
6.8. 21CT does not endorse Your Member Content or any opinion, recommendation, or advice expressed therein, and 21CT expressly disclaims any and all liability in connection with Your Member Content.
6.9. 21CT does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and 21CT reserves the right to take all appropriate measures to prevent infringing activities on its Website, including but not limited to removing or disabling access to Your Member Content and/or terminating access to the Website by repeat infringers, i.e. a User who has been notified of infringing activity more than twice and/or has had Content removed from the Website more than twice. As explained in more detail in its Copyright Policy (found at http://www.21ct.com/legal/dmca-copyright-policy/), 21CT will remove or disable access Your Member Content if properly notified that it infringes on another's intellectual property rights. The User who has supplied the allegedly infringing Content may then supply a counter-notice including (i) a physical or electronic signature of the user; (ii) identification of the material that has been removed, or to which access to has been disabled, and the location at which the material appeared before it was removed or disabled; (iii) a statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and the User’s name, address and telephone number and a statement that the User consents to the jurisdiction of the Federal Court for the judicial district in which the User's address is located, or if the User's address is located outside the United States, for any judicial district in which 21CT is located, and that User will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the 21CT’s Designated Agent, a copy of the counter-notice will be sent to the original complaining party informing that person that it will replace the removed material or cease disabling it within 10 business days. Unless the copyright owner files an action seeking a court order against the user, the removed material will be replaced, or access to it restored, within 14 business days after receipt of the counter-notice. 21CT's designated Copyright Agent to receive notifications of claimed infringement is: Stephanie Freund, email: copyright@21CT.com
6.10. To the maximum extent allowed by law, You hereby waive all moral rights (including but not limited to all rights under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A, as amended), in Your Member Content with respect to all uses permitted or licensed under this Agreement.
7. INTELLECTUAL PROPERTY RIGHTS OF OTHERS
7.1. The 21CT Website may contain Content that is neither 21CT Content nor Member Content (“Other Content”). Such Other Content belongs to its creator or author, may be protected by intellectual property rights or other proprietary rights, and no rights to such Other Content are conveyed herein.
7.2. 21CT and its affiliates respect the intellectual property rights of others. Instructions for how to make a claim of copyright infringement are found at http://www.21ct.com/legal/dmca-copyright-policy/
8. WARRANTY DISCLAIMER
8.1. YOU AGREE THAT YOUR USE OF THE 21CT WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, 21CT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 21CT MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT CONTINUITY OF SERVICE OR THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR SERVICES, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE OR SERVICES, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, (vi) ANY FAILURE TO COMPLY WITH ACCESS RESTRICTIONS OR INSTRUCTIONS, AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OR ACCESS, OR CESSATION OR SUSPENSION OF USE OR ACCESS, OF ANY CONTENT OR SERVICES POSTED, EMAILED, TRANSMITTED, STORED OR OTHERWISE MADE AVAILABLE VIA THE 21CT WEBSITE. 21CT DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE 21CT WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND 21CT WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
8.2. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT SHALL 21CT, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR SERVICES, (ii) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE OR SERVICES, (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, (vi) ANY FAILURE TO COMPLY WITH ACCESS RESTRICTIONS OR INSTRUCTIONS, AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OR ACCESS, OR CESSATION OR SUSPENSION OF USE OR ACCESS, OF ANY CONTENT OR SERVICES POSTED, EMAILED, TRANSMITTED, STORED OR OTHERWISE MADE AVAILABLE VIA THE 21CT WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
9.2. IN NO EVENT WILL THE AGGREGATE LIABILITY OF 21CT TO YOU FOR ANY CLAIM EXCEED THE GREATER OF: (i) THE TOTAL FEES PAID BY YOU TO 21CT DURING THE SIX MONTHS PRECEDING THE DATE THE CLAIM FIRST AROSE, OR (ii) $50.
9.3. YOU SPECIFICALLY ACKNOWLEDGE THAT 21CT SHALL NOT BE LIABLE FOR YOUR MEMBER CONTENT OR THE INFRINGEMENT, DEFAMATION, OR OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
9.4. The Website is controlled and offered by 21CT from its facilities in the United States of America. 21CT makes no representations that the 21CT Website is appropriate or available for use in other locations. Those who access or use the 21CT Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
10.1. You agree to defend, indemnify and hold harmless 21CT, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the 21CT Website; (ii) your violation of any term of This Agreement; (iii) your violation of any third party right, including without limitation any intellectual property or privacy rights; or (iv) any claim that Your Member Content caused damage to a third party. This defense and indemnification obligation will survive This Agreement and your use of the 21CT Website.
11. ABILITY TO ACCEPT TERMS OF SERVICE
11.1. You affirm that you are either more than 18 years of age, or an emancipated minor, or are over the age of 13 years and possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in This Agreement, and to abide by and comply with This Agreement.
11.2. Membership is restricted to those over the age of 13 years.
12.1. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned or transferred by 21CT without restriction and without notice.
13.1. You agree that: (i) the 21CT Website shall be deemed solely based in Texas; and (ii) 21CT’s use or hosting of the 21CT Website shall be deemed not to give rise to personal jurisdiction over 21CT, either specific or general, in jurisdictions other than Texas. This Agreement shall be governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws principles and the parties specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods.. Any claim or dispute between you and 21CT that arises in whole or in part from the 21CT Website shall be decided exclusively by a state or federal court of competent jurisdiction located in Travis County, Texas and You acknowledge and agree that You are subject to the personal jurisdiction of such courts.
13.2. This Agreement, as may be modified or revised from time to time, and any other legal notices published by 21CT on the Website, shall constitute the entire agreement between you and 21CT concerning the 21CT Website. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of This Agreement, which shall remain in full force and effect.
13.3. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and 21CT’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.