Terms of Use

This Website is operated by TopBuild Corp. and its affiliates (collectively, “TopBuild,” “we”, “us”). The following Terms of Use (“Terms”) govern and apply to your use of this Website. Please read them carefully! By using this Website, you ACCEPT AND agree to be bound by these Terms.

IMPORTANT NOTE: These Terms contain provisions that limit our liability to you and require you to resolve any dispute with us through final and binding arbitration on an individual basis and not as part of any class or representative action.  Please see the “Disclaimer of Warranties”, “Limitation of Liability” and “Arbitration Agreement” sections below for more information.

Unless the context indicates otherwise, as used in these Terms:

  • Marks” means, collectively, any and all trademarks, service marks, logos, trade names, product packaging designs, label designs, advertising/marketing messages, taglines, slogans, emblems, and other source identifiers owned by us and/or our third-party licensors, whether registered or unregistered, that appear on this Website;
  • Software” means, collectively, any and all software programs, applications, features and functionalities (including associated source code and object code) provided on or through, contained within, or making up this Website, including, without limitation, mobile apps and social media applications;
  • Site Content” means, collectively, any and all text, publications, documents, photographs, graphics, designs, layouts, Marks, audio and video presentations, advertisements, product and service descriptions and images, data collections and compilations, directories, listings, search results, Software, and other material (whether or not in downloadable form) provided on or through, contained within, or making up this Website; and
  • User Content” means any material originated by users of this Website, including, without limitation, user-originated messages, communications, reviews, comments, information, etc., but excluding any material that is reproduced, derived or modified from Site Content.

Privacy

TopBuild respects user privacy.  Please review our Privacy Policy which describes our data collection, use, sharing, and retention practices associated with this Website. For California customers, please refer to our Additional Notice to California Customers.

Children and Minors

This Website is not intended for or directed to anyone under the age of 13.  You must be at least 18 years of age to create an account, to place an order, or to submit or post User Content on this Website.

Electronic Communications

When you use this Website or send emails to us, you are communicating with us electronically.  You consent to receiving communications from us electronically.  We will communicate with you by email, by posting notices on this Website, or through your account on this Website.  You acknowledge and agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Reservation of Rights

We reserve the right at any time, in our sole discretion, with or without notice, and without liability to you or other users, to: (i) modify, suspend, remove or terminate this Website or any Site Content, in whole or in part; (ii) restrict, limit, suspend or terminate any user’s access to this Website or any Site Content; (iii) monitor user activities on this Website to verify and ensure user compliance with these Terms and any applicable law; and (iv) investigate any suspected or alleged violation of these Terms or any applicable law and cooperate with authorities in such investigation.

Intellectual Property

This Website and all Site Content are the property of TopBuild and/or our third-party licensors, and are protected by United States and international copyright, trademark, patent, and other intellectual property rights and laws.  Except as expressly permitted by these Terms or applicable law, or otherwise authorized in writing in advance by us, you may not copy, reproduce, download, display, modify, translate or otherwise create derivative works based (whether in whole or in part) on, rent, lease, loan, sell or distribute any portion of this Website or any Site Content, for any purpose or in any medium.

All Marks appearing on this Website belong exclusively to TopBuild and/or our third-party licensors and, except as expressly permitted by these Terms or applicable law, or otherwise authorized in writing in advance by us and/or its third-party licensors (as applicable), may not be used or reproduced for any purpose or in any medium.

Except as expressly otherwise stated herein, nothing in these Terms or on this Website grants you any right or license under any copyright, trademark, patent or other intellectual property of TopBuild or any third party.  Unauthorized use of intellectual property is expressly prohibited and may be a violation of law.

Permitted and Prohibited Uses

Subject to your compliance with these Terms, and only for so long as you are permitted by us to access and use this Website, you may view and make one electronic or paper copy of the Site Content, provided that: (i) you use Site Content only for your own personal, informational and non-commercial purposes and/or for purposes of conducting a business transaction or maintaining a business relationship with us; (ii) you keep all Site Content related copyright, trademark and other proprietary notices intact; (iii) you do not modify any Site Content; (iv) you do not use any Site Content to falsely suggest or imply sponsorship, endorsement, approval, affiliation or association between you or any of your product or services, on one hand, and TopBuild or any of TopBuild products or services, on the other hand; and (v) you do not use any Site Content for any purpose that is competitive with TopBuild or any of TopBuild products or services.

You may not:

  • Use or access this Website or any Site Content in violation of these Terms or any applicable law;
  • Decompile, disassemble, reverse engineer, or attempt to discover the source code or trade secrets of this Website or any Software;
  • Interfere in any way with the operation of this Website or any server, network or system associated with this Website, including, without limitation, hacking, mail-bombing, flooding, overloading, or making “denial of service” attacks; probing, scanning or testing the vulnerability of this Website or any server, network or system associated with this Website; or breach or circumvent firewall, encryption, security or authentication routines; or access, use or retrieve data not intended for you, or access another user’s account without permission;
  • Restrict or inhibit any other visitor or member from using this Website, including, without limitation, by means of “hacking” or defacing any portion of this Website;
  • Use this Website or any Site Content for any fraudulent or unlawful purpose;
  • Impersonate any person or entity, including without limitation any representative of TopBuild; or falsely state, suggest, imply or otherwise misrepresent affiliation, endorsement, sponsorship between you and any other person or entity;
  • Falsify account information; or create (or attempt to create) multiple accounts on this Website (including using proxy IP addresses or falsified/fake identities to hide the use of multiple accounts);
  • Submit, upload, post or transmit any User Content that is unlawful, criminal, threatening, harassing, abusive, profane, obscene, vulgar, pornographic, offensive, violent, tortious, fraudulent, false, misleading, defamatory, libelous, hateful, or discriminatory; or violates intellectual property, privacy, publicity, or other rights of any person or entity; or reveals or discloses another’s trade secret or confidential information without authorization to do so; or solicits, encourages, or provides instructions on illegal activities such as “hacking,” “cracking,” or “phreaking”; or contains advertisements, solicitations, junk mail, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as expressly otherwise permitted by us); or contains viruses, worms, Trojan horses, defects, date bombs, time bombs, or other harmful or disruptive material;
  • Engage in spamming or flooding;
  • Remove, alter or tamper with any copyright, trademark or other proprietary rights notices appearing on, within, or in connection with this Website or any Site Content;
  • Either directly or through the use of any device, software, internet site, web-based service or other means, remove, alter, bypass, circumvent, avoid, or interfere with any digital rights management mechanism, device, or other content protection, copy control, or access control measure associated with this Website or any Site Content, including geo-filtering mechanisms;
  • “Frame” or “mirror” or otherwise create a browser or border environment around any Site page or any Site Content, or deep-link to any Site Content or any internal page of this Website, without our express prior written consent;
  • Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of this Website or any Site Content; notwithstanding the foregoing, we grant to the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, and we reserve the right to revoke these exceptions either generally or in specific cases;
  • Use this Website to advertise or offer to sell or buy any goods or services without our express prior written consent;
  • Create a database by systematically downloading and storing Site Content;
  • Solicit, harvest or collect information from or about other Site users without their express consent; or
  • Use any of our or our third-party licensors’ Marks in an unauthorized manner (including as meta tags or ad keywords).

Your use of this Website is expressly conditioned on your compliance with the rules of conduct set forth in this section.  Your failure to comply with such rules may result in immediate termination of your access to this Website.

Use of Software

If you acquire or download any Software from this Website, you acknowledge that your use of the Software is also subject to the terms and conditions of the applicable end user license agreement that accompanies the Software or, if there is no such end user license agreement, the following additional terms and conditions:

  • (i) The Software is licensed on a limited basis by TopBuild (or the applicable third-party licensor) to you for your own internal use only.
  • (ii) Title to the Software is not transferred to you. All right, title and interest in and to the Software (including all copyrights, patent rights, trade secret rights, and other intellectual property rights) will remain with TopBuild or the applicable third-party licensor of the Software.
  • (iii) You are allowed to make a single copy of the Software for your own internal use, and may not make any additional copies of the Software, in whole or in part.
  • (iv) You may not modify, sell, offer to sell, distribute, disseminate, transfer, transmit, translate, reverse engineer, decompile or disassemble the Software, in whole or in part.
  • (v) You may not bypass, disable, deactivate or render ineffective any protection or security scheme or program contained in the Software.
  • (vi) You may not remove, erase, modify or tamper with any copyright, trademark or other proprietary rights notice that is printed or stamped on, affixed to, or encoded or recorded in the Software.
  • All Software provided on this Website is subject to United States export control laws and regulations. No Software may be downloaded from this Website or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Sudan, Libya, North Korea, Iran, Syria, or any other Country to which the United States has embargoed goods, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders.  By downloading, installing or using any Software obtained from this Website, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.  You may not download, install, use, export or re-export the Software or any underlying information or technology except in full compliance with United States export control laws and regulations.
  • You acknowledge that, unless expressly otherwise stated in writing by us, we provide no assistance, including any technical or customer support, in the use of the Software and your use of the Software is solely and entirely at your own risk.

Registration and Account

Registration may be required to access certain areas of this Website.  You understand and acknowledge that wemay reject a username (or email address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion.

By creating an account on this Website, you represent and warrant that all registration information you submit to us is your own information and is truthful and accurate.  It is your responsibility to notify us of any changes in your account information, including your contact information.  As an account holder, you are responsible for keeping your account login information secure and are responsible for all uses of your account login information.  You should keep your account login information in a safe place and not to divulge it to anyone.   You agree not to transfer your account login information, or lend or otherwise transfer your use of or access to this Website, to any third party.  Remember to sign off your account and close your browser window when you have finished your visit.  This is to ensure that others cannot access your account, especially if you are sharing a computer with someone else or are using a computer in a public place such as a library or an Internet cafe.

User Submissions

If you choose to submit ideas, proposals, suggestions, recommendations, comments, feedback, etc. to us on this Website, you acknowledge and agree to the following:

  • (i) Your submission is voluntary and consensual and is made without any condition or reservation of rights, including, without limitation, any condition of compensation, payment, credit, attribution, secrecy or confidentiality. No contractual, fiduciary or confidential relationship of any kind (whether express or implied) is created between you and us by reason of your submission.  Your submission is not returnable and may be retained indefinitely by us and our affiliated companies.
  • (ii) You represent and warrant that your submission does not contain any confidential information of others and does not violate any third-party right or any applicable law.
  • (iii) We and our affiliated companies will be free, without any obligation or restriction, to use any and all ideas, proposals, suggestions, recommendations, comments, feedback, etc. submitted by you, for any and all purposes of TopBuild’s businesses (such as improving this Website and/or our other websites, developing new websites, improving our existing products/services, developing new products/services, etc.), throughout the world and in perpetuity.

Sweepstakes, Contests, etc.

We may from time to time conduct sweepstakes, contests, games and other prize promotions on this Website.  Participation in such sweepstakes, contests, games and other prize promotions will be subject to our published official rules.

Links to Third-Party Websites

This Website may contain links to other websites (“Linked Sites”), which are not owned, controlled or operated by us.   We have no control over the Linked Sites and accepts no responsibility for the Linked Sites or for any loss or damage that may arise from your use of the Linked Sites.  Your use of the Linked Sites will be subject to the terms and conditions and privacy policies of those sites, and not these Terms or our Privacy Policy.

Linking to This Website

You may link to this Website, but subject to the following conditions:

  • Your link must be a text-only link;
  • You do not frame or otherwise create a browser or border environment around any page of this Website or any Site Content;
  • You do not deep-link to any Site Content or any internal page of this Website;
  • You do not link to any live stream or live streaming event on this Website (except with our express prior written consent);
  • You do not use any TopBuild-owned logo or design mark in or as your link;
  • You do not link to this Website from any pornographic or sexually oriented website;
  • You do not misrepresent or falsely suggest that your website, content, product or service is sponsored, endorsed or approved by, or is affiliated or associated with, TopBuild;
  • You do not publish false, misleading or inaccurate information about, or otherwise disparage, TopBuild, this Website, any TopBuild product or service, or any Site Content;
  • We are under no obligation to support your link.

Disclaimer of Warranties

EXCEPT AS EXPRESSLY OTHERWISE SPECIFIED BY TOPBUILDAND Except where prohibited by applicable law:

  • (i) TOPBUILD makes no warranty or representation regarding This Website or any Site Content.
  • (ii) This Website and all Site Content are provided “AS IS” and without warranties of any kind, express or implied.
  • (iii) TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TOPBUILD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTY OF NON-INFRINGEMENT, WITH RESPECT TO THIS WEBSITE AND ALL SITE CONTENT.
  • (iv) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TOPBUILD DOES NOT WARRANT THAT THIS WEBSITE AND ALL SITE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE; OR THAT ANY DEFECT OR ERROR WILL BE CORRECTED; OR THAT THIS WEBSITE AND ALL SITE CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU USE THIS WEBSITE AND ALL SITE CONTENT ENTIRELY AT YOUR OWN RISK.

SOME STATES MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  BUT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXCLUDE ALL WARRANTIES.

Limitation of Liability 

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL TOPBUILD AND OUR SUCCESSORS AND ASSIGNS BE LIABLE TO YOU UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND, OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) ARISING OUT OF OR RELATING TO THIS WEBSITE OR ANY SITE CONTENT OR ANY USER CONTENT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR TOTAL LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

User Indemnity 

YOU AGREE TO INDEMNIFY AND HOLD HARMLESS TOPBUILD AND OUR SUCCESSORS AND ASSIGNS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES, FOR AND FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND LEGAL COSTS) ARISING OUT OF OR RELATING TO: (I) YOUR USE OF, YOUR INABILITY TO USE, OR YOUR RELIANCE UPON, THIS WEBSITE OR ANY SITE CONTENT OR ANY USER CONTENT; (II) ANY USER CONTENT SUBMITTED OR POSTED BY YOU; (III) YOUR VIOLATION OF ANY OF THESE TERMS OR ANY APPLICABLE LAW; AND/OR (IV) ANY INTERACTION, DEALING OR DISPUTE BETWEEN YOU AND ANY OTHER USER OF THIS WEBSITE, OR BETWEEN YOU AND A THIRD PARTY.

TOPBUILD AND OUR SUCCESSORS AND ASSIGNS RESERVE THE RIGHT, AT THEIR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU SHALL FULLY COOPERATE WITH TOPBUILD AND OUR SUCCESSORS AND ASSIGNS IN ASSERTING ANY AVAILABLE DEFENSES.

Termination

We, in our sole discretion, may terminate your account and your access to this Website at any time and for any reason, including if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms or any applicable law.  Upon such termination, all rights and licenses granted to you under these Terms will immediately cease and terminate.  You acknowledge and agree that: (i) any such termination may be effected without prior notice; (ii) we may immediately deactivate and terminate your account, including removing all information and files associated with your account and barring any further access to such information and files; (iii) we shall not be liable to you or any third party for any termination of your account and your access to this Website, and shall not be required to make any account information or files available to you after such termination.

International Use

This Website is operated by us in and from the United States.  We do not represent or warrant that this Website or any Site Content is appropriate or available for use in locations outside the United States of America.  If you access this Website from a jurisdiction outside the United States, you acknowledge and agree that you do so of your own initiative and that you are solely responsible for complying with local laws applicable to your use of this Website.

Governing Law

These Terms are governed by and shall be construed in accordance with the laws of the State of Florida, U.S.A. (without regard to the conflict of laws provisions thereof).  You and TopBuild agree that the United Nations Convention on Contracts for the International Sale of Goods shall NOT apply to these Terms or your use of this Website (including any purchase you make on this Website).

Arbitration Agreement

Any dispute or claim relating to your use of this Website will be resolved by binding arbitration, rather than in court, except that (i) you may assert claims in small claims court if your claims qualify and (ii) TopBuild may bring actions in court to enforce intellectual property rights.  The United States Federal Arbitration Act and federal arbitration law apply to these Terms.

There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the provisions of these Terms as a court would.

To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim, to:

TopBuild Corp.
475 N. Williamson Boulevard,

Daytona Beach, FL 32114

Attn: General Counsel / Arbitration Notice

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes.  The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.  TopBuild will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  TopBuild will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.  You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. 

YOU AND TOPBUILD EACH AGREE THAT any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.  If for any reason a claim proceeds in court rather than in arbitration, you and TOPBUILD each waive any right to a jury trial.

Notice for California Users

Under California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice:  If you have a question or complaint regarding this Website, please send an e-mail to info@topbuild.com.  You may also contact us by writing to 475 N Williamson Boulevard, Daytona Beach, FL 32114, or by calling us at 386.304.2200.  The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California  95814, or by telephone at (916) 445-1254 or (800) 952-5210.

Investment Information

The information contained on the Site may not be current and should not be used or relied on for any decision to invest in, purchase, retain, sell or otherwise transfer the stock of TopBuild Corp, or for any related purpose. TopBuild Corp. is a publicly held Delaware Corporation and files quarterly and annual reports with the United States Securities and Exchange Commission in Washington, D.C. (“SEC”).

Forward-Looking Statements

Statements in any news release of TopBuild contained on the Site or communicated orally or in writing that concern us or our management and that are not historical facts are “Forward-Looking Statements.”  Forward-Looking Statements include, without limitation, statements that (a) include the words “believes,” “expects,” “anticipates,” “estimates” or words of similar importance or meaning with reference to us or our management; (b) are specifically identified as forward-looking; (c) describe any of our plans, objectives or goals for future operations and products; or (d) concern the characteristics and growth of our markets or customers or our expected liquidity and capital resources. Forward-Looking Statements are only predictions involving important factors and risks that may cause actual results to differ materially from those discussed in any Forward-Looking Statement. Those important factors and risks include, without limitation, economic, competitive, governmental and technological factors affecting our operations, markets, products, services and prices. Important factors and risks are described in TopBuild’s current annual report filed with the SEC, and may be detailed from time to time in additional reports and other filings of TopBuild filed with the SEC. Copies of the most recent reports and other filings of TopBuild can be accessed through the SEC EDGAR system located at www.sec.gov or may be obtained at no charge from TopBuild.  TopBuild expressly disclaims any obligation or responsibility to update or revise or supplement any Forward-Looking Statement in any news release or generally to any extent.

Questions

We welcome questions, comments and other feedback about this Terms of Use, the Web Site and about our products and services. However, please be aware that we will treat all such communications as non-confidential and may reproduce, use, disclose and distribute them without notice or obligation to you. If you have any questions or comments, please send a question via e-mail through the Contact Us page of www.TopBuild.com or contact us by calling us at 386.304.2200.

Miscellaneous

These Terms may be supplemented by additional terms posted at other locations on this Website, but these Terms will control in the event of a conflict with such additional terms (unless expressly otherwise indicated).  These Terms and such additional terms, together with our Privacy Policy, constitute the entire agreement between you and TopBuild regarding your use of this Website, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and TopBuild relating to this Website.  Any heading, caption or section title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.  The invalidity of any term, condition or provision of these Terms shall not affect the enforceability of those portions deemed enforceable by applicable courts of law.  These Terms do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and TopBuild.  You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms without our express prior written consent.  TopBuild may assign, transfer or sublicense any or all of our rights or obligations under these Terms without restriction.  Notices to you may be made via posting to this Website, by email, or by postal mail, in our discretion.  This Website may also provide notices of changes to these Terms or other matters by displaying such notices or by providing links to such notices.  Without limitation, you agree that a printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.  We will not be responsible for failures to fulfill any obligations due to causes beyond its control.  If any provision contained in these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions contained in these Terms, all of which shall remain in full force and effect.  No waiver of any provision contained in these Terms shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and our failure to assert any right, claim or provision under these Terms shall not constitute a waiver of such right, claim or provision.