Terms & Conditions
Forever Soles Pty Ltd and all variations of the name are all trading names and registered trademarks of Forever Soles; TRADEMARK #1635534. Forever Soles Pty Ltd is owned and operated by A. T. Geurs. ABN: 33 785 242 496.
By accessing Forever Soles online, you acknowledge that you have read, understood and accepted these terms and conditions. If you would like any further information or clarification of these terms and conditions please contact us via email at firstname.lastname@example.org
Welcome to the foreversoles.com website (the "Site"). Forever Soles provides services to your subject to the notices, terms, and conditions set forth in this agreement (the "Agreement"). In addition, when you use any of our services (e.g., Customer Reviews), you will be subject to the rules, guidelines, policies, terms, and conditions applicable to such service, and they are incorporated into this Agreement by this reference. We reserve the right to change this Site and these terms and conditions at any time. Accessing, Browsing or otherwise using the site indicates your Agreement to all the terms and conditions in this Agreement, so please carefully before proceeding. If you do not wish to be bound by the Terms and Conditions set forth below, you may not access or use the site; http://www.foreversoles.com may modify this Terms and Conditions, at any time, and such modifications shall be effective immediately upon posting of the modified Terms and Conditions on this site. We recommend that you print or electronically retain a copy of this document. These terms and conditions explain Forever Soles’ obligations to you and your obligations to Forever Soles, and they govern your use of the Forever Soles website, the use of your Forever Soles account, and the Forever Soles services provided to you.
- DEFINITION & INTERPRETATION
Unless otherwise defined, the definitions and provisions in respect of interpretation set out in Schedule 1 will apply to these Terms & Conditions of Sale.
- USE OF THE SITE
You understand that, except for information, products clearly identified as being supplied by http://www.foreversoles.com—does operate, control or endorse any information, products on the Internet in any way. Except for http://www.foreversoles.com - identified information, products, all information, products offered through the Site or on the Internet generally are from Forever Soles. You also understand that http://www.foreversoles.com cannot and does not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.
- INTELLECTUAL PROPERTY
Forever Soles websites, the content, the photos of stocks, and all associated and underlying software, know-how, methodologies and processes are and will remain the sole property of Forever Soles or its third-party suppliers and are protected by copyright, trademark, trade secret and other intellectual property laws. The use of the software, the data generated by the software, and all other materials made available on this website are licensed to you by Forever Soles on a nonexclusive and limited basis. You may not copy, reverse engineer, decompile or create derivative works from the Forever Soles website. You may not use any meta tags or any other 'hidden text' which incorporate Forever Soles’ name or trademark unless we give our prior written consent. While you are using the website, you may print out or electronically store any or all of the web pages or screens but solely for your personal use.
This Agreement shall all be governed and construed in accordance with the laws of Australia applicable to agreements made and to be performed in Australia. You agree that any legal action or proceeding between Forever Soles and you for any purpose concerning this Agreement or the parties’ obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Australia. Any cause of action or claim you may have with respect to the products must be commenced within thirty (30) days after the claim or cause of action arises or such claim or cause of action is barred.
http://www.foreversoles.com does not warrant that (i) the service will meet your specific requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the Service will be corrected.
Your use of the service is at your sole risk. The service is provided on an “as is” and “as your use of the service is at your sole risk. The service is provided on an “as is” and “as available” basis. Any rights not expressly granted herein are reserved.
- FOREVER SOLES SECURITY POLICY
Forever Soles is committed to maintaining high security standards to protect the data of all parties who interact with our information systems. No data transmission across the Internet or information storage technology can be guaranteed to be 100% secure. Forever Soles takes several measures to minimise any risk and to protect your data and your business.
Forever Soles recognises how important our security best practices are to your business. Unlike many other websites, Forever Soles chooses your password and assigns it to you. Thanks to our encryption methodologies, your Forever Soles password cannot be viewed or discovered, even by our own staff.
- INFRASTRUCTURE TECHNOLOGY
Forever Soles chooses technologies, vendors, and partners that exhibit good security practices. Defense strategies are employed with inclusion-based rules and only permit known and acceptable activities from expected or trusted entities. Forever Soles maintains reasonable physical, electronic, and procedural safeguards that comply with pertinent statutes to protect your sensitive information.
- AGGRESSIVE FRAUD ANALYSIS
Forever Soles automatically collects and interrogates the activities of all IP addresses that interact with Forever Soles systems. Suspicious or fraudulent behavior is dealt with immediately and directly using proprietary systems and procedures.
- INTELLECTUAL PROPERTY: TRADEMARK & COPYRIGHT POLICY
Unless the prior written consent of Forever Soles has been obtained, the Customer shall not remove or alter the trademarks, logos, copyright notices, serial numbers, labels, tags or other identifying marks, symbols or legends affixed to any Products.
All Forever Soles designs are copyrighted. Forever Soles prohibits the use of its designs or images for any purpose without prior written permission from Forever Soles. In the event Forever Soles sends a written demand, such as a "Cease and Desist" letter ("Demand") alleging that any Product ("Forever Soles Material") infringes upon, dilutes, tarnishes or otherwise violates its trademark & copyright rights, Forever Soles may have the right to compel anyone in its sole discretion, to remove or disable access to such Forever Soles photos, stocks from other websites other than Forever Soles: 'Forever Soles' is a trademark, with registrations granted in numerous countries. Use of this website does not grant you a license to use the Forever Soles trademark. It may not be copied, downloaded, reproduced, used, modified or distributed in any way without our written permission. ‘Forever Soles all other trademarks or trade names displayed or referred to on our website are the property of their respective owners.
If at any time You disagree with this Trademark & Copyright Policy or any part of it, Your sole remedy is to cease all use of the Forever Soles products and terminate Your account. Please note, however, that any transactions which occurred prior to the date of such termination shall be governed and controlled in full by the terms of this Trademark & Copyright Policy.
- PURCHASE OF PRODUCTS.
You agree to comply with any and all the guidelines, notices, operating rules and policies and instructions pertaining to the purchase of Products through the Platform, as well as any amendments to the aforementioned, issued by Forever Soles (whether as part of use of the Platform or in relation to the purchase of Products, on behalf of Seller), from time to time. Forever Soles reserves the right to revise these guidelines, notices, operating rules and policies and instructions at any time and you are deemed to be aware of and bound by any changes to the foregoing upon their publication on the Platform.
You may place an Order by completing the Order form on the Platform and clicking on the “Place my Order” button. Seller will not accept Orders placed in any other manner. You shall be responsible for ensuring the accuracy of the Order. You will pay the merchant directly for the product and the cost of domestic shipping (if applicable), for delivery to your address. You agree to comply with any conditions and restrictions of sale which are specified on the merchant's website or which you are notified of during the purchase process. You will take all reasonable measures to ensure that the products you order are correctly addressed to your Forever Soles address, including your name and exact suite number. As noted in section 30, additional handling fees in identifying the recipient may apply if your package was incorrectly or inadequately addressed.
You have the right to cancel your order within twenty-four hours from the time of your order (“Cooling Off Period”). The cancellation must be communicated to Forever Soles in writing within the Cooling Off Period. Upon the expiration of the Cooling Off Period, all Orders are irrevocable and unconditional: All Orders will be deemed to be irrevocable and unconditional upon transmission through the Platform and Seller shall be entitled (but not obliged) to process such Order(s) without your further consent and without any further reference or notice to you. Nevertheless, in certain circumstances, you may request to cancel or amend the Order which Seller will endeavour to give effect to on a commercially reasonable effort basis. However, notwithstanding the foregoing, Seller is not obliged to give effect to any request to cancel or amend any Order.
The warranties and conditions, remedies for breach of warranty or condition, or other terms stated in the Product Warranty are, unless expressly prohibited by applicable mandatory law, in lieu of all other terms, warranties and conditions, whether expressed or implied, statutory or otherwise. Except as expressly provided in such Product Warranty, Seller excludes (unless expressly prohibited by applicable mandatory law) all other express or implied terms, warranties or conditions with respect to the Products supplied.
You acknowledge and warrant that you have not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of Seller which has not been stated expressly in a Customer Contract or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by either Forever Soles. You also acknowledge and agree that to the extent allowed under Australian law, the exclusion of warranties, exclusion of liability and exclusion of remedies in these Terms & Conditions of Sale and Customer Contracts allocate risks between the parties and permit Seller to provide the Products at lower fees or prices than Seller otherwise could and you agree that such exclusions on liability are reasonable.
Forever Soles shall not be liable for any indirect, incidental, special, consequential or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, intangible losses, and any other type of damages caused by any breach of a Third Party Vendor’s implied or express warranty on the Products.
For products shipped internationally, please note that any manufacturer warranty may not be valid; manufacturer service options may not be available; product manuals, instructions and safety warnings may not be in destination country languages; the products (and accompanying materials) may not be designed in accordance with destination country standards, specifications, and labelling requirements. Forever Soles is not liable for any Losses suffered by any third party directly or indirectly caused by repairs or remedial work carried out without Forever Soles’ prior written approval and the Customer shall indemnify Seller against all Losses arising out of such claims. Forever Soles shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid in cleared funds by the due date for payment.
To the extent allowed under Australian law, Forever Soles shall be under no liability whatsoever in respect of any defect in the Products arising after the expiry of the applicable Product Warranty, if any.
- DELIVERY OF PRODUCTS
Shipments can be delivered directly to most addresses (except post office boxes). However, in certain remote areas, you may be need to pick up your package from the closest post office.
Delivery of the Products shall be made to the address you specify in your Order by Forever Soles (or its agents) on behalf of Seller. Delivery & packing charges: Delivery and packing charges shall be as set out in the Order.
You acknowledge that delivery of the Products is subject to availability of the Products. Seller will make every reasonable effort to deliver the Product to you within the delivery timeframe stated on the relevant page on which the Product is listed, but you acknowledge that while stock information on the Platform is updated regularly, it is possible that in some instances a Product may become unavailable between updates. All delivery timeframes given are estimates only and delays can occur. The time for delivery shall not be of the essence, and nor any of its agents shall not be liable for any delay in delivery howsoever caused. In the event you do not receive the Product by the projected delivery date and provided that you inform Forever Soles within 3 days immediately from such projected delivery date, Seller will try, to the best of Seller’s ability, to locate and deliver the Product. If Forever Soles does not hear from you within 3 days from such projected delivery date, you shall be deemed to have received the Product subject to your rights under Australian law.
Customer’s failure to take delivery: If the Customer fails to take delivery of the Products (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of Seller’s fault) then without prejudice to any other right or remedy available to Seller, Seller may terminate the Customer Contract.
Prices of Products
Listing Price: The price of the Products payable by a Customer shall be the Listing Price at the time at which the Order placed by the Customer is transmitted to Seller (through the Platform).
Taxes: All Listing Prices are subject to taxes, unless otherwise stated. Seller reserves the right to amend the Listing Prices at any time without giving any reason or prior notice.
In general, you may pay for the Product using any of the payment methods prescribed by Forever Soles from time to time. When you place an Order, actual payment will be only charged upon Seller’s acceptance of your Order and formation of a Customer Contract. All payments shall be made to Forever Soles, either accepting payment in its own right or as Seller’s agent (where Seller is a Third Party Vendor). You acknowledge that Forever Soles is entitled to collect payments from you on behalf of Third Party Vendors. The payment methods may be subject to additional terms as prescribed by Forever Soles from time to time. Payment methods: You agree that you are subject to the applicable user agreement of your payment method. You may not claim against Seller or any of its agents (which may include Forever Soles), for any failure, disruption or error in connection with your chosen payment method. Forever Soles reserves the right at any time to modify or discontinue, temporarily or permanently, any payment method without notice to you or giving any reason.
Invoicing: Seller may invoice you upon the due date of any payment under a Customer Contract. If the Customer fails to make any payment pursuant to the terms and conditions of the payment method elected or payment is cancelled for any reason whatsoever, then without prejudice to any other right or remedy available to Seller, Seller shall be entitled to cancel the Customer Contract or suspend delivery of the Products until payment is made in full.
Refund of Payment:
(a) All refunds shall be made via the original payment mechanism and to the person who made the original payment, except for Cash on Delivery, where refunds will be made via bank transfer into the individual’s bank account provided that complete and accurate bank account details are provided to us.
(b) We offer no guarantee of any nature for the timeliness of the refunds reaching your account. The processing of payment may take time and it is subject to the respective banks and/or payment provider internal processing timeline.
(c) All costs associated with the refund process imposed by the processing bank and/or payment provider shall be borne by us.
(d) All refunds is conditional upon our acceptance of a valid return of the Product.
(e) We reserve the right to modify the mechanism of processing refunds at any time without notice.
- ABUSE OF THE RETURN POLICY/RETURN POLICY
Repair, replacement or price reduction: As an alternative to returning faulty or damaged Products, a Customer may request for a repair or replacement of such Products. Such request shall be irrevocable upon notification of the request to Forever Soles and the Customer may not later elect for a return where the Products have not been repaired or replaced within a reasonable time, Forever Soles may, at its sole discretion, grant to the Customer a reduction of the price in proportion to the reduced value of the Products, provided that under no circumstance shall such reduction exceed 15 per cent (15%) of the price of the affected Products. Upon a repair, replacement or price reduction being made as aforesaid, the Customer shall have no further claim against Seller.
Replacement Products: When Forever Soles has provided replacement Products or given the Customer a refund, the non-conforming Products or parts thereof shall become Seller’s property and upon request such Products or parts thereof should be shipped back to Seller at Customer’s cost.
Risk of damage or loss: Risk of damage to or loss of the Products shall pass to the Customer at the time of delivery, or if the Customer wrongfully fails to take delivery of the Products, the time when Forever Soles has tendered delivery of the Products.
NOTE TO FOREVER SOLES CLIENTS
This Return and Cancellation Policy is part of, and incorporated within, the Forever Soles Client Contract. As a condition of registering with Forever Soles and using the Forever Soles products, you expressly acknowledge that you have read and understand this Return and Cancellation Policy and you agree to be bound by its terms and conditions. If at any time you disagree with this Return and Cancellation Policy or any part of it, your sole remedy is to cease all use of the Forever Soles products and terminate your account. Please note, however, that any transactions which occurred prior to the date of such termination shall be governed and controlled in full by the terms of this Return and Cancellation Policy.
Forever Soles’ publication of any information, statements, or claims does not constitute its endorsement of any Vendor, Product, or incentive.
- RISK AND PROPERTY OF THE GOODS
Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery or if the Customer wrongfully fails to take delivery of the Goods, the time when Forever Soles has tendered delivery of the Goods. Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions the property in the Goods shall not pass to the Customer Customer until Forever Soles has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by Forever Soles to the Customer for which payment is then due.
Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as Forever Soles’ fiduciary agent and bailee and shall keep the Goods separate from those of the Customer. The Customer agrees with Forever Soles that the Customer shall immediately notify Forever Soles of any matter from time to time affecting Forever Soles’ title to the Goods and the Customer shall provide Forever Soles with any information relating to the Goods as Forever Soles may require from time to time. Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) Forever Soles shall be entitled at any time to demand the Customer to deliver up the Goods to Forever Soles and in the event of non-compliance Forever Soles reserves it’s right to take legal action against the Customer for the delivery up the Goods and also reserves its right to seek damages and all other costs including but not limited to legal fees against the Customer.
The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Forever Soles but if the Customer does so all moneys owing by the Customer to Forever Soles shall (without prejudice to any other right or remedy of Forever Soles) forthwith become due and payable. If the provisions are not effective according to the law of the country in which the Goods are located, the legal concept closest in nature to retention of title in that country shall be deemed to apply mutatis mutandis to give effect to the underlying intent expressed in this condition, and the Customer shall take all steps necessary to give effect to the same. The Customer shall indemnify Forever Soles, all of its respective officers, employees, directors, agents and contractors against all loss damages costs expenses and legal fees incurred by the Customer in connection with the assertion and enforcement of ForeverSoles’ rights under this condition.
- GOVERNING LAW
These Terms & Conditions of Sale shall be governed by and construed in accordance with the laws of Australia and you hereby submit to the exclusive jurisdiction of the Courts of Australia.
Except any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the Rules for Arbitration of the Australia. The arbitral tribunal shall consist of a sole arbitrator, to be appointed by the Chairman of the Australia. The place of arbitration shall be award by the arbitration tribunal shall be final and binding upon the parties.
Seller may seek immediate injunctive relief if Seller makes a good faith determination that a breach or non-performance is such that a temporary restraining order or other immediate injunctive relief is the only appropriate or adequate remedy.
Seller may by notice issued jointly with Forever Soles through the Platform or by such other method of notification as Seller may designate solely through Forever Soles (which may include notification by way of e-mail), vary the terms and conditions of these Terms & Conditions of Sale, such variation to take effect on the date Seller specifies through the above means. If you use the Platform or the Services after such date, you are deemed to have accepted such variation. If you do not accept the variation, you must stop access or using the Platform and the Services and terminate these Terms & Conditions of Sale. Seller’s right to vary these Terms & Conditions of Sale in the manner aforesaid will be exercised with the joint involvement of Forever Soles (either via the Portal or such other means as Forever Soles prescribes) and subject to the foregoing, may be exercised without the consent of any person or entity who is not a party to these Terms & Conditions of Sale. The version of Terms & Conditions of Sale applicable to any particular Order is the latest version in force.
Correction of errors
Any typographical, clerical or other error or omission in any acceptance, invoice or other document on Seller’s part shall be subject to correction without any liability on Seller’s part.
Money references under these Terms & Conditions of Sale shall be in Australian Dollar.
In the event that these Terms & Conditions of Sale is executed or translated in any language other than English (“Foreign Language Version”), the English language version of these Terms & Conditions of Sale shall govern and shall take precedence over the Foreign Language Version.
- ENTIRE AGREEMENT
These Terms & Conditions of Sale shall constitute the entire agreement between you and Seller relating to the subject matter hereof and supersedes and replaces in full all prior understandings, communications and agreements with respect to the subject matter hereof.
You acknowledge and agree that any records (including records of any telephone conversations relating to the Services, if any) maintained by Seller or its service providers relating to or in connection with the Platform and Services shall be binding and conclusive on you for all purposes whatsoever and shall be conclusive evidence of any information and/or data transmitted between Seller and you. You hereby agree that all such records are admissible in evidence and that you shall not challenge or dispute the admissibility, reliability, accuracy or the authenticity of such records merely on the basis that such records are in electronic form or are the output of a computer system, and you hereby waive any of your rights, if any, to so object. Forever Soles reserves the right to delegate or subcontract the performance of any of its functions in connection with the performance of its obligations under these Terms & Conditions of Sale and reserves the right to use any service providers, subcontractors and/or agents on such terms as ForeverSoles deems appropriate.
You may not assign your rights under these Terms & Conditions of Sale without Seller’s prior written consent. Seller may assign its rights under these Terms & Conditions of Sale to any third party.
- FORCE MAJEURE
Neither Forever Soles shall be liable for non-performance, error, interruption or delay in the performance of its obligations under these Terms & Conditions of Sale (or any part thereof) or for any inaccuracy, unreliability or unsuitability of the Platform's and/or Services’ contents if this is due, in whole or in part, directly or indirectly to an event or failure which is beyond ForeverSoles’ or Seller’s reasonable control.
- EXPORT CONTROL
You acknowledge and agree to comply with all applicable export Laws, including the Australian Export & Import Laws, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act; and regulations issued pursuant to these and other Australian Laws. You hereby represent and warrant that any Product, offered and/or provided by Forever Soles products is approved for export from the Australian Laws without additional authorisation or licensing from the government. Should the export authorization status of our Products change, we must immediately notify You in writing. Information on export control regulations can be found on the Commerce Department's website at http:// www.austrade.gov.au, the State Department's website at http://www.customs.gov.au; and the www.australia.gov.au/topics/business-and.../trade-import-and-export; https://exportcontrols.govspace.gov.au/faq/; www.agriculture.gov.au/biosecurity/legislation.
- REPRESENTATIONS AND WARRANTIES
You warrant and represent that: you are at least 18 years of age or the legal age of majority in your country, you have obtained all necessary permissions to enter into and perform this agreement, and you will use the ForeverSoles services only for lawful purposes and in accordance with these terms and conditions. You may not: (i) frame, copy or mirror any content forming part of the Forever Soles products; (ii) reverse engineer the Forever Soles products or otherwise attempt to derive its source materials; (iii) access the Forever Soles products for the purpose of (A) building a competitive product or service, or (B) copy any features, designs, content, sales pitch, functions or graphics of the Forever Soles products; (iv) interfere with or disrupt the Forever Soles products or any data contained therein; (v) attempt to gain unauthorised access to the Forever Soles products, its related systems or networks; or (vi) use the Forever Soles products for any unlawful purpose or in violation of the rights of any Person.
Circumstances Beyond Our Control. Forever Soles is not liable for any loss or damage arising out of circumstances beyond our control. These include but are not limited to: natural disasters or acts of God, for example fire, earthquake, hurricane, tornado, storm, flood, fog; plane crash or embargo; war, riot, civil commotion or industrial action; epidemics or pandemics; power cuts, communications or other utility disruptions; governmental action or inaction; any defect or characteristic related to the nature of a shipment, even if known to Forever Soles; and damage to, or erasure of, electronic or photographic images, data or recordings due to electrical or magnetic interference.
You agree to indemnify, defend and hold Forever Soles and its shareholders, officers, directors, affiliated companies, employees and agents harmless from all claims, losses, damages, liabilities and costs (including reasonable attorneys fees) incurred by Forever Soles which result from your use of the Forever Soles website and Forever Soles services, including but not limited to your negligent act or omission, any misrepresentations you make in connection with obtaining Forever Soles services, any mis-declaration of contents or value or packages for export purposes, and/or your failure to comply with these terms and conditions.
- DISCLAIMER WARRANTY.
Your use of the website is at your own risk, and you acknowledge that Forever Soles web-based services are provided on an 'as is' and 'as available' basis. While we endeavour to provide accurate and current information via our website, we disclaim all warranties, express and implied, including but not limited to warranties of merchantability, fitness for a specific purpose, and non-infringement, to the full extent permissible by applicable law. The website is not warranted to be uninterrupted or error-free. Forever Soles is not liable for any inability to access, delay in accessing, or interruptions in access to your account or conducting transactions due to unavailable or unreliable telecommunications networks or internet service providers, incompatible or malfunctioning equipment, software you use for such access, or other causes beyond Forever Soles’ control.
- LOCAL AND INTERNATIONAL SHIPPING.
The international shipping and handling charges are estimates only. The Shipping Cost estimate may differ from the final shipping charges which can only be determined once we have received the package at your Forever Soles address.
You are responsible for payment of all actual international shipping and handling charges, even if they differ from the original estimated cost. Volumetric weight may apply on bulky, lightweight packages. Volumetric weight is calculated by multiplying height by width and length in inches and dividing by a weight expressed in kilos. Your final cost will include any applicable country-specific government-mandated clearance fees in addition to duty, tax, shipping, and fuel surcharges if applicable.
- ENTIRE AGREEMENT
If any provision of this agreement is judged by a court or body having jurisdiction as illegal, invalid or unenforceable, such provision will be deemed deleted without affecting any other provision.
If either you or Forever Soles fail to enforce any provision of this agreement, or fail to exercise any right at any time, such failure will not be deemed a waiver thereof.