Terms of Service
By accepting our Terms of Service, you agree to the following:
New Day Films Inc. Terms of Service
Revised: 07 April 2021
1. ACCEPTANCE OF TERMS
This website is owned and operated by New Day Films Inc. and its affiliates (collectively, "New Day"). New Day permits access to and use of this site and its related products and services (collectively, the "Service"), subject to the terms and conditions in this Terms of Service ("TOS"). New Day Films makes its Service available through several platforms, including by means of physical media (DVDs), via direct digital streaming licenses and via limited licenses enabling primarily educational institutions to host and stream content online through a password-protected platform. New Day may, at its discretion, update the TOS at any time. You can access and review the most current version of the TOS at the URL for this page or by clicking on the "Terms of Service" link within the Service or as otherwise made available by New Day.
PLEASE REVIEW THE TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT, DISTRIBUTING FILMS THROUGH THE SERVICES, PURCHASING DVDS, STREAMING FILMS, PROCURING AN IN- HOUSE/DIGITAL SITE LICENSE, ORDERING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS, DO NOT ACCESS, DISTRIBUTE THROUGH, OR USE THE SERVICE.
THE TOS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOS (EACH, A "CLAIM"), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 17 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
3. GRANT OF RIGHTS
(a) All New Day films are protected by U.S. Copyright. New Day grants you a limited, non- exclusive, non-transferable, non-sublicensable, revocable license to access, view, display, stream, or exhibit materials within the Service or obtained from the Service, including through any online software, applications, other similar components and through purchase of DVDs. All other rights not expressly granted are reserved by New Day. Further license limitations are as follows:
i. DVD Rental and Purchase License: Rental or purchase of any New Day DVD is for educational use during the specified DVD rental period, or for life of the DVD purchase and for the exact print, cassette or DVD purchased. New Day DVDs are not licensed for screenings in which admission fees are charged, including but not limited to theatrical screenings. To avoid late charges, rented DVDs must be postmarked 24 hours after show date. All returns should be shipped via UPS.
ii. Streaming License: Streaming, display, or exhibition of any New Day film is for classroom use or in other related venues for educational use. Any other stream, display, or exhibition of New Day films must be licensed through special arrangement with the individual member/filmmaker. You may purchase unlimited online access to New Day films. Purchase of unlimited online access shall entitle you and your authorized users to stream, display, and exhibit New Day films on an unlimited basis and to receive updates regarding the New Day films on a proprietary platform. Streamed New Day films may not be rented, loaned, sub-leased, re-sold or sub- licensed to others. Streamed New Day films may not be digitized, transferred, altered, duplicated or reproduced by any means except as expressly provided in this license without prior written authorization of New Day or the independent member/filmmaker. This streaming license is expressly conditioned upon receipt of payment by New Day of all applicable fees and taxes.
1. Term – Limited License. The term of your limited license with respect to the New Day film shall be concurrent with the length of the license chosen (i.e. 14-day, 1-year, 3-year, life of file, or other agreed-upon term). Upon expiration, non-renewal, or any termination of the limited license, all of your rights to stream, display or exhibit New Day films shall cease. The limited license term commences at the time the license is purchased.
2. Term – Life of File License. If you select a life of file license option when placing your order, the term of your license with respect to the New Day film and any included updates shall be for the life of the file and, notwithstanding Section 3(a), may only be revoked if you materially breach the TOS, or if the New Day film is withdrawn due to errors or third party claims (including claims of infringement). If you select a life of file license and lose the ability to access the New Day film for any other reason (e.g., if New Day discontinues online access services), or if the New Day film is otherwise eligible for local loading, you may obtain digital copies upon certifying that you will secure and restrict use of the New Day film as contemplated under the TOS, including implementation of appropriate copyright protection practices and technologies, as applicable. All use of New Day films shall continue to be subject to the terms of this life of file license, and file transfer costs, if any, shall be your responsibility.
iii. In-House/Digital Site License: In-house/digital licenses for educational institutions to host and stream content online through their password-protected server may only be shared within any single, geographically unified campus, and with distance-learning classes and students who are enrolled by the educational institution for study conducted through that campus. The sharing of streamed New Day films between two or more campuses, or with other institutions, or with individuals, classes or groups who are not specifically affiliated through employment or enrollment with the educational institutions, is not permitted without the express authorization of New Day or the independent member/filmmaker.
1. Term – In House/Digital Site License. If you purchase an in-house/digital license, the term of your in-house/digital site license shall be concurrent with the applicable term set forth in your purchase order from New Day. Upon expiration, non-renewal, or any termination of the in-house/digital site license, all of your rights to use the New Day films shall cease. All New Day films in all formats must be erased, deleted, or destroyed upon expiration or any termination of the in-house/digital site license. Failure by you to delete all New Day films covered by this license at the end of the term or upon any termination of this license is a violation of the TOS and will most likely be regarded as a violation of U.S. Copyright law and subject to legal action. The in-house/digital site license term commences at the time the license is purchased.
(b) Licenses granted by New Day under this TOS are further restricted as follows:
i. New Day films licensed for educational use may only be shared by authorized users within a single, geographically unified campus. Permission is also granted for authorized users of distance learning programs affiliated with the same geographically unified campus and authorized users at a satellite campus of the same geographically unified campus, provided that the distance learning programs and satellite campuses are served by the same information network as the main campus and bear the same institutional name and affiliation. Sharing of New Day films with other institutions, or with users not specifically affiliated with the geographically unified campus is strictly prohibited.
ii. New Day films licensed for educational use may be streamed at multi-campus K-12 institutions on a case-by-case basis. Please contact New Day to make specific arrangements to obtain a license for K-12 institutions.
iii. New Day films licensed to institutions for streaming via 14-day, 1-year, 3-year or life of file licenses may be used for all educational purposes, including classroom use. However, a personal viewing license does not permit use of New Day films for classroom use.
iv. You may not make or distribute copies of New Day films, or electronically transfer New Day films from one computer to another or over any other internet server or other communications network, except as permitted by these TOS. You may not decompile, reverse engineer, disassemble, or otherwise reduce the New Day film to a human-perceivable form. You may not modify, transfer, or create derivative works based on the New Day film or any part thereof, whether digitally or through analog transmission. You may not digitize, transfer, alter, duplicate or reproduce any New Day films, by whatever means, except as expressly provided in this license without prior written authorization of New Day or the independent member/filmmaker. You may not rent, loan, sublease, sublicense or otherwise provide access to the Service to others. You may not transmit New Day films by means of broadcast, narrowcast, open-cable, direct broadcast satellite, or any other means, or to any off-campus, distance learning or affiliate website.
(c) All rights granted to you under this TOS are subject to your compliance with the TOS in all material respects and may only be exercised for your non-commercial personal or educational use. Your access to and use of the Service must further comply in all material respects with any usage guidelines posted by New Day or set forth in the agreement between New Day and the institution through which you obtain access to the Service ("Institution Agreement").
4. REGISTRATION AND VIEWING
(a) You may browse the Service without registering for an account, but some features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (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 New Day reasonably suspects that you have done so, New Day may suspend or terminate your account.
(b) To stream films or order film DVDs within the Service, you must be an authorized user and you must register to use the Service accessed through www.NewDay.com.
(c) You are fully responsible for all activities that occur under your account. You may not share your account or password with anyone unless that person is an authorized user. You agree to notify New Day 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, audiovisual works, music, sounds, photographs, images, graphics, videos, messages, scripts, tags, and other materials accessible through the Service, whether publicly posted or privately transmitted, whether via DVD or other physical media or via online streaming ("Content"), are the sole responsibility of the person from whom such Content originated. This means that you, and not New Day, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service ("Your Content"), and other users of the Service, and not New Day, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service ("User Content").
(b) You acknowledge and agree that New Day has no obligation to pre-screen Content (including, but not limited to, Your Content and User Content), although New Day reserves the right in its sole discretion to pre- screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, New Day shall have the right to remove any Content that violates the TOS or that it deems objectionable.
(c) 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 the TOS with respect to Your Content; (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; and (iii) that you will provide adequate security for protection of Content from piracy, theft and any other misuse while Content is stored on systems controlled, owned, leased or otherwise contracted for your use.
6. RIGHTS TO CONTENT
(a) New Day does not claim ownership of Your Content. However, you grant New Day 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 Your Content (in any form and any medium, whether now known or later developed) only as necessary to provide the Service. You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(b) Except with respect to Your Content, you acknowledge and agree that, as between you and New Day, New Day owns all rights, title and interest (including, but not limited to, all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright and other intellectual property laws and treaties. New Day reserves all rights not expressly granted to you.
(c) Except with respect to Your Content, you may not: (i) use, capture, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the TOS; (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 Service; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by New Day; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; or (vi) remove or obscure any proprietary notice that appears within the Service.
7. AUTHORIZED USE OF THE SERVICE
You represent and warrant that you are accessing the Service for educational purposes only, and that you are not accessing the Service for theatrical projection, screenings or playback.
You represent and warrant that: (i) you are a full, part-time or contract faculty member, a currently- enrolled student, educational staff, a researcher or independent contractor or independent member/filmmaker accessing the Service for individual use, or a casual, "walk-in" on-site user customarily granted access to the educational institution and using the content for individual use.
You represent and warrant that you are accessing the Service for the following educational purposes: (i) Classroom use, namely streaming, exhibition or display of Content in classrooms or other venues, for audiences of more than one person, conducted without charging admission. In this context, the Content may be exhibited by any means not requiring additional digitization, alteration, duplication or reproduction; (ii) Distance learning, namely specific coursework conducted via electronic, digital or other communications network (including Internet and Intranet) by students enrolled for that purpose through a geographically discrete setting which constitutes your principal place of business; and (iii) general educational use, namely exhibition or display of Content in educational settings including, but not limited to, primary schools, middle schools, high schools, colleges, universities, libraries, museums, hospitals, companies, and nonprofit organizations and for individual exhibition or display of Content by you for studying, researching or working through primary schools, middle schools, high schools, colleges, universities, and distance learning programs.
8. USER CONDUCT
In connection with your access to or use of the Service, you may not:
(a) 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.
(b) impersonate any person or entity, including, but not limited to, New Day personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c) manipulate information or identifiers in order to disguise the origin of any Content transmitted through the Service;
(d) act in a manner that negatively affects the ability of other users to access or use the Service;
(e) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
(f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(g) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or substantially download, reproduce or archive any portion of the Service;
(h) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including, but not limited to, your user account and password; or
(i) violate any applicable local, state, provincial, federal or international law or regulation.
If you elect to provide or make available to New Day any suggestions, comments, ideas, improvements or other feedback relating to the Service ("Suggestions"), New Day shall be free 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.
10. LINKS AND EXTERNAL MATERIALS
11. MODIFICATIONS TO THE SERVICE
New Day reserves the right at any time to modify or discontinue the Service (or any portion thereof) with or without notice, and New Day shall not be liable to you for any such modification or discontinuance.
You shall indemnify, defend and hold New Day and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, "New Day Parties") harmless from and against any Claim (as defined in Section 1), demand, loss, damage, cost, liability and expense, including, but not limited to, reasonable attorneys' fees, resulting from or arising out of your: (a) violation of the TOS or any law or regulation, including, but not limited to, the license restrictions stated in Paragraph 3(d); or (b) violation of any rights of another party.
13. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE NEW DAY 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, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
(b) THE NEW DAY PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR- FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL AND EDUCATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
14. LIMITATION OF LIABILITY
(a) YOU ACKNOWLEDGE AND AGREE THAT THE NEW DAY PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE NEW DAY 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 NEW DAY PARTIES' TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THE TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO NEW DAY FOR ACCESS TO THE SERVICE AT ISSUE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
(b) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
(a) In the event that you violate the TOS, all rights granted to you under the TOS shall terminate immediately, with or without notice to you. To the extent that your access to the Service arises from an Institution Agreement, such access shall terminate upon termination of the applicable Institution Agreement.
(b) Upon termination of the TOS for any reason: (i) New Day, in its sole discretion, may remove and discard Your Content; and (ii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination.
16. GOVERNING LAW
The TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of New York, 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 the TOS.
17. BINDING ARBITRATION AND CLASS ACTION WAIVER
(a) ALL CLAIMS (AS DEFINED IN SECTION 1) 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 THE TOS 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.
(b) 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/. 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 Newburgh, New York 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 a claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. 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 NEWBURGH, NEW YORK OR ORANGE COUNTY, NEW YORK. 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.
(d) Notwithstanding anything to the contrary, you and New Day 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 17.
18. 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, but not limited to, the Specially Designated Nationals List.
19. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the TOS, there shall be no third- party beneficiaries to the TOS.
20. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide New Day's Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. New Day's Agent for Notice of Copyright Claims can be reached as follows:
21. GENERAL PROVISIONS
Agent for Notice of Copyright Claims
New Day Films Inc.
102 Holly Drive, New Windsor, NY 12553 Newburgh, NY 12550 Email: email@example.com.
The TOS constitutes the entire agreement between you and New Day concerning your access to and use of the Service. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and New Day with respect to such subject matter. The TOS may not be amended by you except in a writing executed by you and an authorized representative of New Day. You may not assign or delegate any right or obligation under the TOS without the prior written consent of New Day. The failure of New Day to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of this TOS 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 the TOS. Any prevention of or delay in performance by New Day hereunder due to labor disputes, acts of god, pandemics, governmental restrictions or orders, 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.