Welcome to ADstruc’s websites, including www.ADstruc.com (collectively, the “Site”) and the services and applications available on them (the “Services”) provided in accordance with these terms of service (the “Terms of Service”). As used in this agreement (“Agreement”), “we”, “us” and “ADstruc” means ADstruc, Inc. and “you” means the registering party (if registering as an individual), or the business employing or represented by the registering party (if registering as a business). ADstruc may change or modify the Terms of Service contained in this Agreement at any time by posting the amended terms on the Site. Excepted as stated elsewhere, all amended terms automatically take effect 30 days after they are initially posted anywhere on the Site. In addition, we will notify you of material changes by posting the date the Terms of Service were last modified on the Site or a communication to you. You may cancel your ADstruc account at any time by deactivating your account on the Site or emailing us at email@example.com and such cancellation shall be effective immediately.
BY ACCEPTING THESE TERMS OF SERVICE, ACCESSING THE SITE, REGISTERING ON THE SITE, CONTINUING TO USE THE SITE OR SERVICES AFTER ADSTRUC POSTS ANY CHANGES, OR USING THE SERVICES IN ANY MANNER, YOU (ON BEHALF OF YOURSELF AND THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY ALL THESE TERMS OF SERVICE, AND ALL POLICIES AND GUIDELINES OF THE SITE WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE.
Use of the Site and Services is limited to parties that lawfully can enter into and form contracts under applicable law (e.g., minors are not allowed to use the Services). To register on the Site, you must provide your real name, company name, phone number and e-mail address. You agree to keep all such information current and promptly notify us of any changes. You represent and warrant that: (a) if you are a business, you are duly organized, validly existing and in good standing under the laws of the country in which your business is registered and that you are registering for the Site and/or Services within such country; (b) you have all requisite right, power and authority to enter into this Agreement, on behalf of yourself and the business you represent, and perform your obligations hereunder; (c) if you are a seller, you have all requisite right, power, intent and authority to sell the Products you list or offer for sale on the Site, (d) if you are a buyer, you have all requisite right, power, intent and authority to buy the Products you offer to buy or buy on the Site, (e) any information you provide to us, to other users, or to visitors is not false, inaccurate, misleading, obscene or defamatory, (f) if you are a seller, all Products you list or offer for sale on the Site comply with all applicable laws, codes, and regulations, including, without limitation, all zoning and land use laws, (g) if you are a seller, you will advise buyers of all restrictions applicable to Products you list or offer for sale on the Site, including, without limitation, all content restrictions, (h) if you are a buyer, you will abide by and comply with all restrictions applicable to Products you purchase, including, without limitation, all content restrictions, and (i) you and all of your subcontractors, agents and suppliers will comply with all applicable laws in your performance of your obligations and exercise of your rights under this Agreement.
If you are registered as a seller, you may, subject to these Terms of Service, (i) use ADstruc’s online inventory management system, and (ii) list, offer, or create proposals for the sale of a license to advertise on billboards, transit-related signs, street furniture, wallscapes, digital out-of-home units, and/or other out-of-home advertising units that you have the legal right to offer such license with respect thereto (collectively, “Products”) on the designated areas of the Site. If you are registered as a buyer, you may, subject to these Terms of Service, create and manage requests for proposals, search for, make offers on and/or purchase Products for sale on the Site. You acknowledge that we are not an auctioneer. Instead, the Site and Services allow sellers to list and offer for sale Products and buyers to search for, make offers on and purchase Products in a variety of pricing formats and locations. You acknowledge that we may establish limits concerning the use of the Site and Services and have the right at any time to modify or discontinue the Site and Services (or any part thereof) without notice to you, and that ADstruc shall not be liable to you or any third party for any modification, restriction, suspension or discontinuance of the Site or Services. Without limiting other remedies, we may limit, suspend, or terminate the Services and/or user accounts, prohibit access to the Site and Content contained thereon (including Products), services, and tools, delay or remove hosted Content (including Products), and take technical and legal steps to keep users off the Site if (i) we reasonably think that they are creating problems or possible legal liabilities, (ii) we reasonably think they are infringing the intellectual property rights of third parties (including, without limitation, repeat infringers), (iii) they fail to pay applicable fees when due, (iv) their payment method expires or is declined, (v) they breach any term of this Agreement, or (vi) they act inconsistently with the letter or spirit of our policies. We also reserve the right to cancel unconfirmed accounts or accounts that have been inactive for more than sixty (60) days, or to modify or discontinue ADstruc’s Sites, Services, or tools. You acknowledge and understand that in the event your account is canceled or deleted by you or us for any permitted reason, you will not have access to nor any right to retrieve any Content (as defined below) available on the Site.
The Services include the Site and may also be located on third party websites or applications either by way of a link or otherwise in connection with websites that such third parties control. Nothing in the Site or any of the Services shall be deemed an offer or promise by ADstruc to buy or sell a specific Product or any other product, service or advertising space for a specific price or on any specified terms. ADstruc is not involved in any transactions between you and any third party (including, without limitation, buyers, sellers, operators, vendors, advertisers and agencies). As a result, we have no control over and make no warranty, representation or guarantee with respect to the quality, safety or legality of the advertising space, Products, services or other products or listings contained on or offered through the Site (collectively, “Items”), the truth or accuracy of information relating to the Items, the ability or willingness of sellers to sell the Items, or the ability or willingness of buyers to buy the Items. Your interactions with organizations and/or individuals found on or through the Site, including, without limitation, payment, delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings are solely between you and such organizations and/or individuals. If there is a dispute between users on the Site, or between users on the Site and any third party, you understand and agree that ADstruc is under no obligation to become involved. ADstruc is in no way legally responsible, and you hereby release ADstruc, its officers, employees, agents and successors from any and all claims in law or equity, demands or actual, consequential, incidental, nominal, special or punitive damages of any type, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with a claim, demand or dispute regarding the Items, Services, Site, Products or any related transaction.
While using the Site or Services, you will not:
a. manipulate or attempt to manipulate the price of any Product or other item or interfere with other users' Products or listings;
b. circumvent, manipulate or attempt to circumvent or manipulate our fee structure, the billing process, or fees owed to us;
c. distribute viruses or any other technologies that may harm us, or the interests or property of ADstruc users;
d. harvest or otherwise collect information about users, including email addresses, without their consent; or
e. distribute or post spam or unsolicited email advertisements or communications.
You understand that all information, postings, messages, text, files, images, photos, videos, sounds, designs, graphics, Products, arrangements and compilations of the foregoing, or other content (collectively, “Content”) posted on, transmitted through, or linked from the Site, are the sole responsibility of the person or entity from whom such Content originated. You are entirely responsible for each individual item of Content that ADstruc posts on your behalf and at your request or you post, email or otherwise make available via the Site. You warrant and represent that all Content that ADstruc posts on your behalf and at your request or you post, email or otherwise make available via the Site does not infringe, or constitute an infringement or misappropriation of any patent, copyright, trademark, trade secret or other interest, proprietary or otherwise, of any individual or entity. You understand that ADstruc does not control, and is not responsible for Content on or made available through the Site, and that by using the Site or Services, you may be exposed to Content that is inaccurate, misleading or otherwise objectionable. Furthermore, the Site may contain links to other websites, which are completely independent of ADstruc. ADstruc makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such site. Your linking to any other websites is at your own risk. Certain Content on the Site is provided under license from third parties, including Google Inc. (“Google”), and is subject to copyright and other intellectual property rights owned by or licensed from Google and/or such third parties. You may be held liable for any unauthorized copying or disclosure of this content. You agree that you must evaluate and bear all risks associated with the use of any Content, that you may not rely on said Content, and that under no circumstances will ADstruc be liable in any way for any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise made available on or via the Site.
a. If you offer a Product for sale on the Site, you agree to sell such Product to any buyer that (i) offers the listed price (as set forth on the Site), or (ii) offers a price that you accept via the Site or otherwise; provided in each case that such buyer meets the terms of the agreement between you and such buyer relating to the sale of such Product.
b. If you make an offer on a Product offered for sale on the Site and the applicable seller accepts such offer, you agree to actually purchase such Product in accordance with the terms of the agreement between you and the applicable seller relating to the sale of such Product.
c. In the event you fail to purchase a Product in violation of section 6(b) above, we may, in addition to our other remedies, require you to pay, as liquidated damages and not as a penalty, one percent (1%) of your highest offered price on such Product. The parties agree that the foregoing liquidated damages are reasonable in light of the anticipated or actual harm caused by a breach of sections 6(b), the difficulties of proof of loss and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.
a. Buyer Fees. You shall pay ADstruc the Buyer Fee (as defined below) with respect to all Products available on or through the ADstruc Site (including, without limitation, all Products included in proposals submitted through the Site) that you Purchase (as defined below). Unless otherwise set forth in a separate written agreement between you and ADstruc, the “Buyer Fee” shall equal the gross sale price of the Product(s) subject to the Fee (as set forth herein) multiplied by five percent (5%). Please contact us at firstname.lastname@example.org or 646.692.4966 for agency and volume pricing. For the purposes of the Buyer Fee, you shall be deemed to have “Purchased” a Product upon the earlier of (i) clicking the “buy” button on the Site with respect to such Product or otherwise agreeing to purchase such Product on or through the Site in any manner, (ii) executing an agreement for the purchase of such Product, or (iii) making full or partial payment for such Product.
b. Late Payments. Failure to pay amounts due hereunder in full on or before the applicable due date shall result in an additional 1% interest rate compounded per month for each period of thirty (30) days thereafter (the “Interest Penalty”) that such amounts remain unpaid on the principal of the applicable fee and any interest owed thereon. Such Interest Penalty charged shall at no time exceed the maximum amount allowed by law.
c. Seller Fees. There is no fee due to ADstruc by sellers for their use of the Site in accordance with these Terms of Service or sale of Products on the Site in accordance with these Terms of Service.
d. Promotional Offers. We may offer, in our sole discretion, promotional offers with different limitations. If we agree to waive the Buyer Fee with respect to one or more Products you Purchase pursuant to a promotional offer for which you are eligible, you shall not be required to pay the Buyer Fee applicable to such Products you Purchase on or through the Site. We reserve the right to modify, terminate or otherwise amend our promotional offers and all promotional offers are subject to these Terms of Service.
The Buyer Fee shall be due and payable within thirty (30) days of “Purchasing” the applicable Product(s). ADstruc will submit an invoice to the applicable party for all Buyer Fees.
The Site, Services, and all Content displayed on or through the Site (collectively, the “Materials”) are all protected to the maximum extent permitted by copyright laws and international treaties. Any reproduction, modification, creation of derivative works from or redistribution of the Materials and/or copying or reproducing the Materials or any portion thereof is prohibited without ADstruc’s or the applicable third party’s (as applicable) express written consent. You further agree not to reproduce, duplicate or copy Materials from the Site without the express written consent of ADstruc, and agree to abide by any and all copyright notices displayed on the Site. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Site or Services. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Site or Services. By accessing or using the Site or Services, you are granted a limited, non-assignable, non-sublicensable, and non-exclusive license to access and use the Site and Services therein and to print Materials for your personal, informational and non-commercial use only. We expressly reserve the right, without notice, to terminate your license and access or use of the Site and Services, provided such termination is reasonable under the circumstances. Although ADstruc does not claim ownership of content that its users post on the Site, by posting, or directing ADstruc to post, Content to the Site, you automatically grant, and you represent and warrant that you have the right to grant, to ADstruc an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said Content and to prepare derivative works of, or incorporate into other works, said Content, and to grant and authorize sublicenses of the foregoing.
ADstruc and any and all of our logos are either service marks or trademarks of ADstruc. Any and all logos of third parties on or available through the Site are the trademarks or service marks of the respective third parties. Any such trademarks or service marks of ADstruc or a third party shall not be copied, imitated or used in whole or in part without the prior written consent of their respective owners. You shall not use any Meta tags or any type of ‘hidden text’ utilizing any trademarks of ADstruc or any third party without the prior written consent of that respective party. Any reference to a product, service, process or information contained on or otherwise available through the Site does not constitute or imply any endorsement, sponsorship, recommendation, approval or otherwise by ADstruc.
ADstruc complies with the provisions of the Digital Millennium Copyright Act as applicable to Internet service providers (17 U.S.C. § 512). If you reasonably and in good faith believe that your work has been copied in a manner that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide ADstruc with all of the following information in writing at email@example.com or the following address: ADstruc, Inc., Church St. Station, P.O. Box 3486, New York, NY 10008
Please provide ADstruc notification of the claimed infringement containing 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. Identification of the copyrighted work claimed to have been infringed;
c. Identification of the material that you claim is infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient for us to locate the material;
d. Your address, telephone and email address so that we can contact you if necessary;
e. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
f. A statement 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.
a. THE SITE AND SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SITE AND THE SERVICES, ARE PROVIDED “AS-IS.” AS A USER OF THE SITE OR THE SERVICES, YOU USE THE SITE AND SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES WAIVE AND DISCLAIM: (1) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SITE, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; (2) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; (3) ANY WARRANTIES FOR THE OTHER SERVICES OR GOODS RECEIVED THOUGH THE SITE OR SERVICES, OR ACCESSED THROUGH ANY LINKS ON THE SITE; (4) ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SITE OR SERVICES; AND (5) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE AND SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY TRANSACTIONS.
b. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “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.”
UNDER NO CIRCUMSTANCES SHALL ADSTRUC BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF ADSTRUC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF YOUR USE OF THE ADSTRUC SITE OR SERVICES, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SITE OR SERVICES, FROM INABILITY TO USE THE SITE OR SERVICES, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE SITE OR SERVICES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR SERVICES OR ANY LINKS ON THE SITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR SERVICES OR ANY LINKS ON THE SITE. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR THREE MONTH PERIOD PAID BY YOU TO ADSTRUC IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitation may not apply to you.
You agree to indemnify and hold ADstruc, its officers, subsidiaries, members, affiliates, successors, assigns, directors, officers, agents, and employees, harmless from any claim or demand, including reasonable attorney fees and court costs, made by any third party due to or arising out of (i) Content you submit, post, request to be posted, or otherwise make available, directly or indirectly, through the Site or Services, (ii) your use of the Site or Services, (iii) your violation of this Agreement, (iv) your breach of any of the representations and warranties herein, or (v) your violation or alleged violation of any rights of another.
If you choose, or you are provided with, a username, password or any other piece of information as part of our security procedures, you agree to treat such information as confidential. You may not disclose your username or password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your username or password. If your username or password is compromised, you must immediately notify us at firstname.lastname@example.org and change your user name and/or password (as applicable).
ADstruc enables you to share personal and financial information to complete transactions. We encourage you to disclose your privacy practices and respect the privacy of other users. We cannot guarantee the privacy or security of your information and therefore we encourage you to evaluate the privacy and security policies of your trading partner before entering into a transaction and choosing to share your information. When users are involved in a transaction, they may have access to each other's name, user ID, email address and other contact information. In all cases, you must give other users a chance to remove themselves from your database and a chance to review what information you have collected about them.
You agree to use user information only for:
We and our users do not tolerate spam. Make sure you advise us of your communication preferences so we communicate to you as you prefer. You are not licensed to add other ADstruc users, even a user who has purchased an item from you, to your mailing list (email or physical mail) without their express consent. To report ADstruc-related spam or spoof emails to ADstruc, please forward the email to email@example.com. You may not use our communication tools to send spam or otherwise send content that would violate our Terms of Service. We may automatically scan and manually filter messages to check for spam, viruses, phishing attacks and other malicious activity or illegal or prohibited content.
You agree that you are solely responsible for determining, collecting, reporting, and remitting all applicable Taxes to the appropriate tax authority. “Taxes” means any and all sales, goods and services, use, excise, import, export, value added, consumption and other taxes and duties assessed, incurred or required to be collected or paid for any reason in connection with any advertisement, offer or sale of Products by you on or through the Site, or otherwise in connection with any action, inaction or omission of you or any affiliate of yours, or any of your or their respective employees, agents, contractors or representatives.
b. No Agency; Third-Party Beneficiary. You and ADstruc are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, employment, or fiduciary relationship between us. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions hereof are intended to be and are for the sole and exclusive benefit of ADstruc and you.
c. Severability. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions, which shall continue to be binding to the maximum extent allowed by law.
d. No Waiver. We will not be considered to have waived any of our rights or remedies described in this Agreement unless the waiver is in writing and signed by an authorized signatory of ADstruc. No delay or omission by us in exercising our rights or remedies will impair or be construed as a waiver. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. ADstruc’s failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of ADstruc’s right to subsequently enforce such provision or any other provisions of this Agreement.
e. Resolution of Disputes. You and ADstruc agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or the Site or Services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by emailing us at firstname.lastname@example.org. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
f. Governing Law. This Agreement and the relationship between you and ADstruc shall be governed in all respects by the laws of the State of New York as they apply to agreements entered into and to be performed entirely within New York between New York residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against ADstruc must be resolved exclusively by a state or federal court located in New York County, New York, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within New York County, New York for the purpose of litigating all such claims or disputes.
g. Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
h. Improperly Filed Claims. All claims you bring against ADstruc must be resolved in accordance with this Resolution of Disputes section. All claims filed or brought contrary to this Resolution of Disputes section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, ADstruc may recover attorneys' fees and costs up to $1,000, provided that ADstruc has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
i. Time Limit. You agree that notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site, Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
j. No Oral Modification. This Agreement cannot be changed or terminated orally, and none of the terms hereof shall be deemed to be waived or modified except by an express agreement in writing signed by the party against whom such waiver or modification is sought to be enforced.