Easy Storage Solutions, LLC (“ESS,” “we,” “our,” or “us”) is happy to provide you with access to its self-storage business solutions accessible through the website and associated domains of www.storageunitsoftware.com and other custom domains, related software, content, and services, including all versions and upgrades thereto, and any third-party services that we may procure on your behalf (collectively, the “Services”). Your use of the Services is subject to and governed by the terms and conditions in these Terms of Service (the “Terms”). We may, at our discretion, update the Terms at any time. You can access and review the most current version of the Terms at the URL for this page, by clicking on the “Terms of Service” link within the Services, or as we otherwise make available.
PLEASE REVIEW THE TERMS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES,
THE TERMS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TERMS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TERMS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 19 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
1. OTHER AGREEMENTS
2. GRANT OF RIGHTS
Subject to and conditioned upon your compliance with these Terms (including all Additional Terms), ESS grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license: (a) to access and view pages within the Services (b) to the extent that the Services provides access to any online software, applications or other similar components, to access and use such components only within the Services and only in the form found within the Services, in each case only for your internal business purposes.
Except as explicitly agreed by ESS in any applicable Additional Terms, ESS is not obligated to provide you any support for the Services, and these Terms do not entitle you to any support for the Services. In the event that ESS voluntarily provides you with any support not explicitly agreed by ESS in any applicable Additional Terms, it shall not be deemed a commitment by ESS to provide you any support in the future, and ESS may choose, in its sole discretion, to discontinue such support at any time and for any reason without any liability to you.
4. PERSONAL INFORMATION; REGISTRATION; ACCOUNT
(a) You acknowledge and agree that by accessing or using the Services, ESS may receive certain information about you, including personal information, and ESS may collect, use, disclose, store and process such information in accordance with these Terms.
(b) In registering for the Services, you agree to: (i) provide true, accurate, current and complete information about yourself (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or ESS reasonably suspects that you have done so, ESS may suspend or terminate your account. (c) You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account, whether or not you authorized the particular use or user, and regardless of your knowledge of such use. You agree to notify ESS immediately of any unauthorized use of your account or password or any other similar breach of security.
5. RESPONSIBILITY FOR CONTENT
(a) You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Services, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not ESS, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Services (“Your Content”), and other users of the Services, and not ESS, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Services (“User Content”). To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in these Terms with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party. You acknowledge and agree that ESS has no obligation to back up Your Content, and that you are solely responsible for backing up Your Content. You acknowledge and agree that you may not have access to Your Content through ESS or the Services following the expiration or termination of these Terms.
(b) You shall not upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
6. RIGHTS TO CONTENT
(a) ESS does not claim ownership of Your Content. However, you grant ESS and its service providers a worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to (i) provide access to the Services to you and other users; and (ii) monitor and improve the Services. To the extent you have made Your Content accessible to others within your organization through the Services, you acknowledge and agree that ESS may continue to make Your Content accessible to others within your organization through the Services even after you have deleted your user account or the applicable portion of Your Content from your user account.
(b) Except with respect to Your Content, you acknowledge and agree that, as between you and ESS, ESS owns all rights, title and interest (including all intellectual property rights) in the Services, and all improvements, enhancements or modifications thereto, including all Content and other materials therein. The Services is protected by U.S. and international copyright, trademark, patent and other intellectual property laws and treaties. ESS reserves all rights not expressly granted to you.
(c) As used herein, "Aggregate Data" means Your Content that has been aggregated in a manner that does not reveal any personal information and cannot reasonably be used identify you, your organization or its customers or vendors as the source of such data. You acknowledge and agree that ESS may collect or generate
Aggregate Data in connection with providing you with access to or use of the Services, and, subject to your provision of consent, you hereby grant ESS and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data (in any form and any medium, whether now known or later developed) for any lawful purpose.
(d) Except with respect to Your Content and subject to the limited rights expressly granted to you in Section 2, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Services; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Services; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services or any products or services offered by ESS; (v) rent, lease, lend, sell or sublicense the Services or otherwise provide access to the Services as part of a service bureau or similar fee-for-service purpose; (vi) remove or obscure any proprietary notice that appears within the Services; or (vii) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
7. USER CONDUCT
In connection with your access to or use of the Services, you shall not:
(a) impersonate any person or entity, including ESS personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(b) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
(c) act in a manner that negatively affects the ability of other users to access or use the Services;
(d) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure;
(e) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
(f) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services, or substantially download, reproduce or archive any portion of the Services;
(g) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Services, including your user account and password; or
(h) violate any applicable local, state, provincial, federal or international law or regulation.
(a) You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Services. Some features of the Services are free to use, but fees may apply for premium features and other components. If there is a fee listed for any portion of the Services, by accessing or using that portion, you agree to pay the fee. Your access to the Services may be suspended or terminated if you do not make payment on time or in full.
(b) For all Services you agree to pay the specified fees and you authorize us to charge you according to the monthly plan level you choose and any other charges you may incur in connection with your use of the Services. A valid credit card or ACH account may be required for you to use the Services on a month-to-month basis. The Services are billed in advance on a monthly basis and such fees are non-refundable. There will be no refunds or credits for partial months, or for months unused with an open account. We reserve the right to change rates upon thirty (30) days’ notice. Such notice may be provided at any time by posting the changes to our website or by email.
(c) The service period for each of our Services that you have selected to receive will begin on the day your payment method is charged and will continue until the day before your next charge is scheduled. If you do not cancel the applicable Services at least forty-eight (48) hours prior to your next scheduled charge, your payment method will be charged.
9. TENANT PROTECTION PLANS
ESS offers Tenant Protection Plans as a feature of our Services. Tenant Protection Plans are administered by ESS at no cost to the self-storage operator. Tenants may purchase a Tenant Protection Plan directly via the online rental process, or they may be enrolled by you or your representatives in the Services. As part of enrollment in the Tenant Protection Plan, the tenant will sign an addendum (the “Lease Addendum”) outlining a property protection plan for certain of the personal property stored by such tenant at the applicable property. Fees for the Tenant Protection Plans will be invoiced monthly on the tenant’s account directly in the ESS software. When a tenant pays for the Tenant Protection Plan, that money is considered “collected” and you will keep a portion of the “collected” fees and ESS will deduct the remaining balance of all “collected” fees monthly for the previous month from your account. You may opt out of or cancel the availability of the Tenant Protection Plans at any time and for any reason by notifying Easy Storage Solutions via email at email@example.com or via phone at 435-673-2979. ESS will at its own expense during the term of this agreement, maintain a policy that insures the full amount of risk up to the coverage amount as described in each applicable Lease Addendum.
10. PAYMENT PROCESSING
Easy Storage Payments is an optional feature of our Services. Payment processing services on Easy Storage Solutions are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms and/or continuing to use the Services in conjunction with Easy Storage Payments, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Easy Storage Solutions enabling payment processing services through Stripe, you agree to provide ESS accurate and complete information about you and your business, and you authorize ESS to share such information and transaction information related to your use of the payment processing services provided by Stripe.
If you elect to provide or make available to ESS any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), you hereby grant ESS and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license, to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
12. LINKS AND EXTERNAL MATERIALS
13. MODIFICATIONS TO THE SERVICES
ESS reserves the right to modify, suspend or discontinue the Services or any product or service to which it connects, with or without notice, and ESS shall not be liable to you or to any third party for any such modification, suspension or discontinuance. ESS may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services or related services (“Updates”). ESS may develop Updates that require installation by you before you continue to access or use the Services or related services. Updates may also be automatically installed without providing any additional notice to you or receiving
any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system.
You shall indemnify, defend and hold ESS and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “ESS Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of: (a) Your Content; (b) your violation of these Terms, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services.
(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ESS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ESS PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE INFORMATION, CALCULATIONS AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE; OR (IV) ANY ACCESS CONTROLS INCLUDED IN THE SERVICES (“ACCESS CONTROLS”) MAY NOT BE COMPROMISED OR CIRCUMVENTED OR THAT THE ACCESS CONTROLS WILL PREVENT ANY PROPERTY LOSS. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL CONTENT SUBMITTED TO OR OBTAINED FROM THE SERVICES BEFORE TAKING ANY ACTION BASED UPON SUCH CONTENT, INCLUDING MAKING ANY PAYMENTS OR COLLECTING ANY AMOUNTS BASED THEREON. YOU ASSUME ALL RISK ASSOCIATED WITH THE SUITABILITY, INSTALLATION AND PERFORMANCE OF THE ACCESS CONTROLS AND AND OTHER THIRD-PARTY COMPONENTS, HARDWARE, SOFTWARE AND SERVICES THAT YOU SELECT.
(b) Any model contracts, forms or other documents ESS makes available for your use with your customers (“Model Contracts”) are provided for informational purposes only and should not be relied on as legal advice. Nothing herein constitutes the establishment of an attorney-client relationship between you and ESS or anyone involved in the drafting of the Model Contracts and you should seek the advice of legal counsel prior to use of the Model Contracts. By utilizing the Model Contracts, you: (i) assume full responsibility for any loss, damage, or liability resulting from the use of the Model Contracts; and (ii) release ESS and the authors of the Model Contracts, their contributors, agents, licensees, successors and assigns from any and all known or unknown claims, demands or causes of action that may arise, at any time, out of or relating to your use of any of the Model Contracts.
16. LIMITATION OF LIABILITY
THE ESS PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE ESS PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE ESS PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO ESS FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
Subject to the Additional Terms, if you violate these Terms, all rights granted to you under these Terms shall terminate immediately, with or without notice to you. Upon termination of these Terms for any reason: (i) you must immediately uninstall and cease using the Services; (ii) ESS, in its sole discretion, may remove and discard Your Content and delete your user account; (iii) any provision that, by its terms, is intended to survive the expiration or termination of these Terms shall survive such expiration or termination; and (iv) all rights granted to
you under these Terms shall immediately terminate, but all other provisions shall survive termination. You are solely responsible for the proper cancellation of your account. You may cancel your account at any time by calling or emailing ESS.
18. GOVERNING LAW
These Terms shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms.
19. BINDING ARBITRATION AND CLASS ACTION WAIVER
ALL CLAIMS (AS DEFINED IN ABOVE) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THESE TERMS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. The arbitrator will, among other things, have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any Claims. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
WE EACH AGREE THAT ALL CLAIMS (AS DEFINED ABOVE) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS AND EXPRESSLY WAIVE ANY RIGHT TO HAVE A CLAIM DETERMINED OR RESOLVED ON A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE BASIS. IF FOR ANY REASON THE PROVISIONS OF THE PRECEDING SENTENCE ARE HELD TO BE INVALID OR UNENFORCEABLE IN A CASE IN WHICH CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE CLAIMS HAVE BEEN ASSERTED, THE PROVISIONS OF THIS SECTION 19 REQUIRING BINDING ARBITRATION SHALL LIKEWISE BE UNENFORCEABLE AND NULL AND VOID. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
Notwithstanding anything to the contrary, you and ESS may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 19.
If ESS implements any material change to this Section 19, such change shall not apply to any Claim for which you provided written notice to ESS before the implementation of the change
20. LEGAL COMPLIANCE
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
21. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in these Terms with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (a) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (b) acceptance of the rights and obligations herein.
22. NO THIRD-PARTY BENEFICIARIES
You agree that, except for ESS Parties and as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Call (435) 656-1990 or email support@storageunitsoftware with any questions about our Terms.
24. GENERAL PROVISIONS
These Terms (together with the Additional Terms) constitutes the entire agreement between you and ESS concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and ESS with respect to such subject matter. In the event of any conflict between or among these Terms and any Additional Terms to which these Terms refers, the terms and conditions of these Terms shall take precedence and govern. These Terms may not be amended by you except in a writing executed by you and an authorized representative of ESS. For the purposes of these Terms, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under these Terms without the prior written consent of ESS. The failure of ESS to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of these Terms. Any prevention of or delay in performance by ESS hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.