Equality AI, Inc.
Beta Service Agreement
This Beta Service Agreement (this “Agreement”) is a legally binding contract by and between you (“you” or “Customer”) and Equality AI, Inc. (“EqualityAI”), and sets forth the terms and conditions governing Customer’s use of EqualityAI’s hosted development studio services (collectively, the “Beta Service”) and any related documentation, instructions, user guides or other similar materials provided by EqualityAI(collectively, the “Documentation”). This Agreement is effective as of the date you first create an account on or otherwise access or use the Beta Service (the “Effective Date”). If you are an entity, organization, or company, the individual accepting this Agreement on your behalf represents and warrants that she has the authority to bind you to this Agreement and you agree to be bound by this Agreement.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE BETA SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE BETA SERVICE, YOU AGREE TO BE BOUND BY, THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU DO NOT HAVE EQUALITYAI’S PERMISSION TO USE THE BETA SERVICE. YOUR USE OF THE BETA SERVICE, AND EQUALITYAI’S PROVISION OF THE BETA SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY EQUALITYAIAND BY YOU TO BE BOUND BY THIS AGREEMENT.
Use of the Beta Service.
- License. Subject to the terms and conditions of this Agreement, EqualityAI grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to (i) electronically access, use and evaluate the Beta Service in accordance with the Documentation solely for Customer’s internal business use during the Trial Period (defined below), and (ii) access, use and download the Documentation internally in conjunction with the Beta Service. Only Customer’s employees will have the right to access and use the Beta Service and the Documentation hereunder and all access and use will be from inside the United States.
- Use Restrictions. Customer will not: (i) reverse decompile, disassemble or otherwise reverse engineer the Beta Service or the Documentation in whole or in part or otherwise attempt to discover any source code or underlying ideas or algorithms of any portion of the Beta Service or the Documentationexcept to the extent permitted by applicable law; (ii) duplicate, transfer, disclose, provide, distribute, sell, lease, republish, sublicense or otherwise make available the Beta Service or the Documentation, or any part or copies thereof, to any third party; (iii) alter, modify, or make derivative works of the Beta Serviceor the Documentation; (iv) attempt to interfere with or disrupt the Beta Service or the Documentation or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Beta Service or the Documentation in accordance with this Agreement); (v) use or permit the use of the Beta Service or the Documentation in violation of applicable law, or in any way that may result in all or any part of the Beta Service or the Documentation falling into the public domain; (vi) remove any copyright or other proprietary rights marks or legends, including any references to EqualityAI’s or its licensors’ names, contained in or on the Beta Service, the Documentation, or associated materials; (vii) access or use the Beta Services or the Documentation to build or support, directly or indirectly, products or services competitive to EqualityAI; (viii) upload or otherwise disseminate any virus, adware, spyware, worm, or other malicious code to the Beta Services or the Documentation; (ix) remove, extract, or transfer off the Beta Service any data sets provided by EqualityAI; or (x) transfer any rights granted hereunder.
- Public Data. EqualityAI may provide publicly-available, non-proprietary data sets on the Beta Service (“Public Data”) . Subject to the terms and conditions of this Agreement, EqualityAI grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable license during the Trial Period to access and use Public Data for Customer’s internal business purposes, including to develop, demonstrate, and conduct experiments on Customer’s machine learning models.
- Acknowledgement of Beta Functionality. The Beta Service is a pre-release service without all of the features, functionality, compatibility, or the level of performance anticipated for final, commercially available release of the Beta Service. Accordingly,: (i) Customer’s use of the Beta Service and the Documentation is at Customer’s own sole risk; (ii) the Beta Service and the Documentation may have errors, design flaws, be incomplete, or contain other problems; (iii) EqualityAI strives to provide accurate results and information, but the results and information obtained using the Beta Service may not always be accurate, and may not always accurately correspond to information extracted from any database or other sources; (iv) use of the Beta Service and the Documentation may result in unexpected results, delays, or other unpredictable damage or loss. EqualityAI has no obligation to release a commercial version of the Beta Service and has the right, in its sole discretion, to unilaterally add, delete, or modify any features or functionality of the Beta Service, abandon the development of the Beta Service at any time, and terminate the Beta Service or Customer’s right to use it, all without any obligation or liability to Customer or any third party.
- Account Creation. To access the Beta Service, each Customer employee (each a “User”) must have an account on the Beta Service. In order to establish an account, Customer will provide EqualityAI with certain information regarding each User, such as each User’s name, email address, mailing address,organization, phone number, or other contact information (“User Information”) . Customer will ensure that User Information remains accurate, complete, and up to date at all times. EqualityAI will contact the Users and provide information required for them to create a username and password (“Log-In Information”) . Customer is solely responsible for maintaining the confidentiality of Log-In Information, and Customer accepts responsibility for all activities that occur under User accounts. If Customer believes that User’s account is no longer secure, then Customer will immediately notify EqualityAI at email@example.com. Customer represents that it has obtained and will obtain all appropriate or legally required consents from its Users for EqualityAI to use User Information as required to provide the BetaService.
- Feedback. During and following the Trial Period, Customer will provide suggestions, ideas, recommendations, descriptions of errors, and other feedback to EqualityAI concerning the Beta Serviceand the Documentation, its functions and features, and otherwise (collectively, “Feedback”) . EqualityAI will own all Feedback and shall have the rights to use and exploit any Feedback for any purpose. Customer will provide EqualityAI with Feedback on a frequency, in the form (e.g. written or oral) requested by EqualityAI; provided that, requests for Feedback will be no more frequent than once weekly. Customer may at any time submit Feedback on its own initiative.
Confidential Information; Privacy and Data Security.
- Definition. “Confidential Information” means any information provided or shared by EqualityAIthat relates to EqualityAI’s present or future products, plans, prices, or customers, including any information that (i) is included in any access controlled area of the Beta Service; (ii) relates to the design and function of the Beta Service or EqualityAI’s other services or products (including the Documentation), (iii) relates to the timing, availability, features or functions of the Beta Service (including information obtained from use of the Beta Service during the Trial Period), (iv) is marked “proprietary” or “confidential,” or (v) is otherwise reasonably expected to be treated in a confidential manner based on the circumstances of disclosure or by the nature of the information itself. “Confidential Information” includes: (a) the existence of the Beta Service and its features and functionality; (b) Customer’s use of the Beta Service; (c) this Agreement; and (d) any Feedback.
- Nonuse and Nondisclosure. Customer will hold Confidential Information in strict confidence and will not disclose, directly or indirectly, Confidential Information to any third party, except to its employees who need to know such information in order to use the Beta Service in accordance with this Agreement. Customer will not use Confidential Information for any purpose except to carry out its rights or to perform its obligations under this Agreement, and will safeguard Confidential Information using at least the same level of care that it uses to protect its own information of like importance, but in no event less thanreasonable care.
- Privacy and Data Security. Each party will comply with applicable law when processing Customer Data (defined below) or Usage Data (defined below) pursuant to this Agreement. To the extent EqualityAI processes any protected health information (“PHI”), as defined by Health Insurance Portability and Accountability Act of 1996 (as amended, “HIPAA”), EqualityAI will comply with the Business Associate Agreement attached and incorporated herein as Exhibit A ( the “BAA”).
Data; IP Ownership.
- Customer Data. Customer grants EqualityAI a non-exclusive, worldwide, royalty-free license during the Trial Period to access and use all data and information uploaded by Customer to the Beta Service (“Customer Data”) in accordance with the BAA and solely to provide the Beta Service to Customer.
- Usage Data. “Usage Data” means any information that the Beta Service generates or records regarding Customer’s use of the Beta Service, which data is in aggregated or deidentified form only, and does not identify natural human persons. “Usage Data” excludes any information that would be considered PHI. Customer agrees that EqualityAI may collect, generate, derive, and record Usage Data for its business purposes, including to: (a) track usage for billing purposes; (b) provide support for the Beta Service; (c) monitor the performance and stability of the Beta Service; (d) prevent or address technical issues with the Beta Service; and (e) to improve EqualityAI’s products and services and develop derivative and new products and services. Customer will not interfere with the collection of Usage Data.
- Ownership. As between the parties, EqualityAI retains all right, title and interest, including all patents, copyrights, trademarks, service marks, trade secrets, moral rights and other proprietary or intellectual property rights, and all applications and registrations therefore, in any and all jurisdictions (collectively, “IP Rights”) , i n and to: (i) the Beta Service and the Documentation and all software, content, information, and data contained, embodied, or incorporated therein; (ii) all data input, output, processed using, or generated by the Beta Service, excluding Customer Data; and (iii) Usage Data, including the know-how and analytical results generated in the processing of Usage Data and any and all new products, services and developments, modifications, customizations or improvements to the Beta Service or any other EqualityAI products or services made based on Usage Data. As between the parties, Customer retains all right, title and interest, including all associated IP Rights, in and to Customer Data. Customer will not acquire any ownership rights in the Beta Service or any IP Rights from EqualityAI’s use of Feedbackor Usage Data in connection with the Beta Service or otherwise.
- Data Retention Policy. Upon termination of this Agreement or deactivation of Customer’s account for any reason, Customer Data and data generated by Customer through the Beta Service will be retained for 30 calendar days, after which it will be destroyed unless Customer makes arrangements to have such data delivered by EqualityAI within that timeframe. Please contact EqualityAI at firstname.lastname@example.org in order to make such arrangements.
- Term and Termination. This Agreement commences on the Effective Date and continues for 90 calendar days ( the “Trial Period”) unless terminated as provided in this Section 6. EqualityAI may terminate this Agreement without cause upon written notice to Customer. Either party may immediatelyterminate this Agreement upon written notice if the other party materially breaches this Agreement. Upon termination or expiration of this Agreement: (i) all rights granted by EqualityAI herein will automatically terminate, (ii) EqualityAI will cease providing the Beta Service to Customer, ( iii) Customer will discontinue all use of the Beta Service, and (iv) Customer will promptly return or destroy all Confidential Information. All definitions and Sections 3, 4, 5(b), 5(c), and 6 through 9 will survive termination or expiration of this Agreement.
- Disclaimer. CUSTOMER ACKNOWLEDGES THAT IT IS RECEIVING ACCESS TO A BETA VERSION OF THE BETA SERVICE. THE BETA SERVICE AND THE DOCUMENTATION, INCLUDING PUBLIC DATA, IS PROVIDED ON AN “AS IS” BASIS, AND EQUALITYAI, ITS LICENSORS, AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EQUALITYAI DOES NOT WARRANT THAT THE CONTENT OR INFORMATION CONTAINED ON THE BETA SERVICE OR THE DOCUMENTATION, INCLUDING PUBLIC DATA,WILL BE ACCURATE, COMPLETE, CORRECT, OR UP TO DATE
- Limitation of Liability. IN NO EVENT WILL EQUALITYAI BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, OR DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EQUALITYAI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS (US$100), WHETHER AN ACTION IN CONTRACT, TORT, OR OTHERWISE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
- Miscellaneous. The laws of the State of Utah (excluding its choice of law rules) will govern interpretation and enforcement of this Agreement. Customer hereby consents to personal jurisdiction in the federal and state courts located in Salt Lake County, Utah for any actions arising out of or relating to Customer’s use of the Beta Service. This Agreement may not be transferred or assigned by Customer without the prior written consent of EqualityAI, and any such attempted assignment will be void and of no effect. EqualityAI may assign this Agreement without restriction. Subject to the foregoing, this Agreement will be binding upon the parties’ respective successors and permitted assigns. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile or email with written acknowledgement of receipt (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the following address if to EqualityAI – 570 Aspen Dr., Park City, UT 84098 – or if to Customer, the address provided upon account creation, or to such other address or individual as the parties may specify from time to time by written notice to the other party. This Agreement constitutes the entire agreement between Customer and EqualityAI with respect to the Beta Service. No amendment or modification of this Agreement will be valid or binding upon either party unless made in writing and signed by the authorized representatives of both parties. If a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. Failure to strictly enforce any provision of this Agreement will not be construed as a waiver of any provision or right, and waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
HIPAA Business Associate Agreement
This Business Associate Agreement (“BAA”) is entered into by and between Equality AI, Inc. as Business Associate and you as Covered Entity and is effective as of the Effective Date. If you are an entity, organization, or company, the individual accepting this BAA on your behalf represents and warrants that she has the authority to bind you to this BAA and you agree to be bound by this BAA. Business Associate and Covered Entity may be referred to herein collectively as “Parties” or individually as a “Party”. This BAA is incorporated into and made part of the Beta Service Agreement (defined below).
- This BAA shall be effective to the extent Equality AI, Inc. has agreed to perform Services that require Equality AI, Inc. to create, receive, maintain, or transmit PHI pursuant to the Beta Service Agreement.
- TAll terms used but not defined herein shall have the meaning set forth in the HIPAA Rules or the Beta Service Agreement, as applicable; provided, in the event of a conflict between defined terms, the HIPAA Rules shall control.
- The following terms are specifically defined as follows:
- “Business Associate” has the same meaning as the term “business associate” at 45 CFR 160.103, and, subject to Section 1(a), in reference to the Party to this BAA, shall mean Equality AI, Inc.
- “Covered Entity” has the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the Party to this BAA, shall mean Customer.
- “HIPAA Rules” means, with respect to the federal Health Insurance Portability and Accountability Act of 1996, Pub. Law 101-191, as amended from time to time, and the Health Information Technology for Economic and Clinical Health (“HITECH”) Act of 2009 (as applicable).
- “Unsuccessful Security Incidents” means, without limitation, pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in unauthorized access, Use or Disclosure of Covered Entity’s electronic protected health information “ePHI.”
Obligations and Activities of Business Associate.
- Business Associate agrees not to Use or Disclose PHI received or created by Business Associate except as permitted by this BAA, the Beta Service Agreement, or as Required by Law.
- Business Associate agrees to use appropriate safeguards, and to comply with Subpart C of 45 CFR Part 164 with respect to ePHI, to prevent Use or Disclosure of PHI other than as provided for by this BAA, the Beta Service Agreement, or as Required by Law.
- Business Associate agrees to report to Covered Entity any Use or Disclosure of PHI not provided for by this BAA of which it becomes aware, including a Breach of Unsecured PHI as required under 45 C.F.R. §164.410, and any Security Incident of which it becomes aware. Notwithstanding the foregoing, the Parties acknowledge and agree that this Section 2.3 constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence or attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required.
- Business Associate agrees, in accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, to obtain from any Subcontractor that creates, receives, maintains, or transmits PHI on behalf of Business Associate pursuant to this BAA and the Beta Service Agreement, reasonable written assurances that Subcontractor will adhere to the restrictions and conditions that apply to Business Associate through this BAA with respect to such PHI as required by the HIPAA Rules.
- Business Associate Agrees to make amendment(s) to PHI maintained in a Designated Record Set (if any), as requested by the Covered Entity or an individual (as applicable) pursuant to 45 C.F.R. §164.526, or take other measures as reasonably necessary to enable Covered Entity to satisfy its obligations under 45 C.F.R. §164.526.
- Business Associate agrees to make available, at the request of Covered Entity, PHI that is maintained in a Designated Record Set (if any) as necessary to allow Covered Entity to satisfy its obligations under 45 C.F.R. §164.524.
- Business Associate agrees to maintain and make available to Covered Entity the information required to provide an accounting of Disclosures, as reasonably necessary to satisfy Covered Entity’s obligations under 45 C.F.R. §164.528.
- For clarity, with respect to the forgoing Sections 2.5-2.7, in no case shall Business Associate be responsible for responding directly to any Individual who submits a request to Business Associate pursuant to 45 CFR §164.524; provided that Business Associate shall promptly forward such request to Covered Entity in accordance with Sections 2.5-2.7.
- To the extent that Business Associate is to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, Business Associate agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s).
- Business Associate agrees to make its internal practices, books, and records, regarding the Use and Disclosure of PHI created or received by the Business Associate on behalf of the Covered Entity available to the Secretary for purposes of the Secretary determining compliance with the HIPAA Rules.
Obligations and Activities of Business Associate.
- Business Associate may only Use or Disclose PHI as permitted in this BAA, the Beta Service Agreement, or as Required by Law. Business Associate may provide Data Aggregation services to Covered Entity, and may de-identify the PHI in accordance with 45 CFR 164.514(a)-(c).
- Business Associate may not Use or Disclose PHI in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity.
- Business Associate may Use PHI for its proper management and administration, or to carry out its legal responsibilities.
- Business Associate may Disclose PHI for its proper management and administration, or to carry out the legal responsibilities, provided the disclosures are (i) Required by Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies business associate of any instances of which it is aware in which the confidentiality of the information has been breached.
- Any permitted Use or Disclosure under Section 3.1-3.4 shall be consistent with the minimum necessary requirements set forth in the HIPAA Rules.
Obligations of Covered Entity.
- During the Term of this BAA, Covered Entity shall:
- Provide Business Associate with a copy of its Notice of Privacy Practices;
- Notify Business Associate of any limitations in its Notice of Privacy Practices, to the extent that such limitation may affect Business Associate’s Use or Disclosure of PHI;
- Notify Business Associate of any changes in, or revocation of, permission by an Individual to Use or Disclose PHI, to the extent that such changes may affect Business Associate’s Use or Disclosure of PHI;
- Not request Business Associate to Use or Disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity (other than as permitted pursuant to Section 3.3-3.4, above); and
- Comply with all HIPAA requirements applicable to Covered Entity.
Term and Termination.
- Term. The Term of this BAA shall commence as of the Effective Date and, except for the rights and obligations set forth in this BAA specifically surviving termination, shall terminate upon the termination or expiration of the last Beta Service Agreement, unless otherwise earlier terminated for cause in accordance with this Section 5.
- Termination by Covered Entity. In addition to any termination provisions set forth in the applicable Beta Service Agreement, Covered Entity may terminate this BAA if Covered Entity determines, in good faith and after reasonable investigation, that Business Associate has violated a material term of this BAA, and Business Associate has failed to cure such material breach or end the violation within thirty (30) days of notice by Covered Entity of such alleged breach.
- Termination by Business Associate. In addition to and notwithstanding any termination provisions set forth in the applicable Beta Service Agreement, Business Associate may terminate this BAA if Business Associate determines, in good faith and after reasonable investigation, that Covered Entity has violated a material term of this BAA, and Covered Entity has failed to cure such material breach or end the violation within thirty (30) days of notice by Business Associate of such alleged breach.
- Effect of Termination. Upon termination or expiration of this BAA for any reason, Business Associate, with respect to any PHI received from Covered Entity or created, maintained, or received by Business Associate on behalf of Covered Entity, shall:
- Retain only that PHI which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities (if any);
- Return to Covered Entity or destroy, at Covered Entity’s expense, the remaining PHI that the Business Associate still maintains in any form that is not necessary to carry out Section 5.4(a);
- Continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to ePHI to prevent Use or Disclosure of the PHI, other than as provided for in this Section 5.4, for as long as Business Associate retains the PHI;
- Not Use or Disclose the PHI retained by Business Associate other than for the purposes for which such PHI was retained and subject to the same conditions set out at Section 3.2(c) which applied prior to termination; and
- Return to Covered Entity or destroy the PHI retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration, or to carry out its legal responsibilities.
Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE BETA SERVICE AGREEMENT, THE LIMITATION OF LIABILITY SET FORTH IN THE BETA SERVICE AGREEMENT SHALL GOVERN THIS BAA AND LIMIT THE PARTIES’ LIABILITY TO THE SAME EXTENT.
This BAA is governed by, and will be construed in accordance with, the laws of the State that govern the Beta Service Agreement. Any action relating to this BAA must be commenced within two years after the date upon which the cause of action accrued. This BAA may only be assigned in connection with an assignment of the Beta Service Agreement. If any part of a provision of this BAA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the remainder of that provision and all other provisions of this BAA will not be affected. All notices relating to the Parties’ legal rights and remedies under this BAA will be provided in writing to a Party, will be sent to its address set forth in the Beta Service Agreement, or to such other address as may be designated by that Party by notice to the sending Party, and will reference this BAA. This BAA may be modified, or any rights under it waived, only by a written agreement executed by the authorized representatives of the Parties. In the event a change in the HIPAA Rules require the Parties to amend this BAA, the Parties agree to negotiate such amendment in good faith, provided that either Party may terminate this BAA upon notice if the Parties are unable to mutually agree upon and execute such amendment. This BAA is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding and replacing all prior agreements, communications, and understandings (written and oral) regarding its subject matter. Any ambiguity in this BAA shall be resolved in favor of the meaning that permits the Parties to comply with applicable law and any current regulations promulgated thereunder. Any failure of a Party to exercise or enforce any of its rights under this BAA will not act as a waiver of such rights.