ACTION AUTO PARTS TERMS & CONDITIONS

All purchases of products and/or services through this website are governed by this Terms & Conditions of Sale Agreement. Please read it carefully before executing and completing a purchase with us online. While we take pride in our hassle-free service, it is necessary to highlight specific procedures for completing your purchase transaction with us.

We maintain this web site as a service to our customers. By using this site, you are agreeing to comply with and be bound by the following terms of use. Please review the following information carefully. If you do not agree with these terms, you should not use or review our online auto parts catalog nor should you obtain goods or products from this website.

This online retail store is owned and operated by Action Auto Parts, a Rhode Island Corporation, and all purchase transactions completed with us here on this website or with any of our online sales affiliates shall be interpreted under the laws of the State of Rhode Island. All disputes shall be resolved by a court of competent jurisdiction within the City of Providence, as noted within paragraph 19 below.

PURCHASE PROCEDURES & INFORMATION

When you click on the "BUY", "SUBMIT", "CHECKOUT" or similar button on a product or service screen, you agree to purchase the products and services indicated, in accordance with the terms and conditions included on the relevant screens, and in accordance with this agreement.

ORDER FULFILLMENT SCHEDULE:
Shipment of your order is often completed on the day we receive your order when your order is in stock and your order is received prior to 2:00 pm Eastern Time. Special circumstances can cause us to be unable to ship your order on the day we receive it so we define Standard Fulfillment to be executed within 1 to 2 business days. Special order items may have longer fulfillment schedules and we make every attempt to offer delivery schedules to you in written emails which acknowledge your special order items.

EXPEDITED SHIPPING SERVICES:
When expedited shipping services are available, you expressly agree that we are not contractually obligated to release your order on the day that you enter the order with us. You understand that your order is not expedited within our fulfillment centers to be packaged and shipped ahead of orders received prior to your own. This means that there are normal circumstances which could result in your order being packed and shipped on the subsequent business day. Our obligation is to ship your package using the service that you designate and you understand that responsibility for compliance with your delivery service is then passed to the shipping service provider. You expressly agree to hold us harmless and you waive any right to a shipping refund in the event that your order is packaged within 24 business hours and when the proper shipping service is selected with the courier. If you experience problems with the courier, then you agree to be bound to the result(s) of filing a damage claim with the shipping courier.

SAME DAY SHIPMENT - Some exceptions apply!!!
In-stock orders processed for direct shipment to a domestic United States address and deliverable by UPS or FedEx are typically processed for shipment the same afternoon. Occassionally the fulfillment centers experience high processing demand and order shipment the same afternoon is NEVER guaranteed. Orders not shipped the same day are typically processed for shipment the following business day. International orders, orders shipped to APO addresses, orders shipped to PO Boxes, and orders which contain ORM-D classified chemical items can experience a delay in shipment by 2 to 7 business days. There are also some cases where customers may be ordering "critical" or "low" stock items and these orders commonly experience some difficulty in being processed on a same day basis. Please refer also to our errors and ommissions clause noted in the footer of every page of our website.

ORDER REVIEW BY ACTION AUTO PARTS:
Shipping charges quoted on our website are intended to reflect shipping costs incurred by our shipping courier plus handling charges for special packing materials and procedures which will assure the safe arrival of your order at your shipping destination. Although our online shipping calculators are very handy for planning shipping costs for your purchases, they are not 100% accurate. Shipping costs tend to change with larger and more complicated orders which will likely require multiple packages for shipping. Shipping costs can change for many reasons and are subject to our review upon receipt of your order. Once we have reviewed your order (normally within 2 to 24 business hours), you will receive an email that will either accept your order or one that will suggest changes to your order, subject to your review and approval. If we suggest changes to your order, we will confirm our shipping method, packaging details, ACTUAL shipping charges, scheduled shipping date, and your scheduled date for receipt of the shipment. Once this email is sent to you, we will await your approval of the FINAL order details before your order is processed by Action Auto Parts.

PACKAGE TRACKING INFORMATION BY ACTION AUTO PARTS:
At this time, we do our very best to automate the delivery of package tracking information upon shipment of your order. You are advised that not all of our fulfillment centers have an automated delivery system for this information thus this information is not guaranteed to be provided as a matter of convenience on your order. We retain the right to obtain this information when and if there is a potential shipping error which requires special administrative review. You agree not to demand this information nor will you demand an order cancellation when this information is not provided in accordance with your expectations.

USE OF OUR CATALOG DATA AT ACTION AUTO PARTS:
Please note that our catalog data is provided as a service to you our customer as an aid to helping you find a recommended replacement part for your automobile. This catalog data is provided by leading original equipment manufacturers and compiled by Action Auto Parts as a service to you. This catalog data is subject to clerical error and this data is NOT warranted in any way by Action Auto Parts or the original equipment manufacturers. Use this information at your own risk and you agree to hold us harmless to labor or shipping claims or other consequential damages which result in the use of this online data service.

IMPORTANT DISCLAIMER: We Do Not Warrant the selection of a replacement part number for your application. You acknowledge that the use of online catalog tools on our website or on the websites of the original equipment manufacturers is done so completely at your own risk. If we assist you with a "look up" of an auto part by application or even a cross reference from one manufacturer part to another, it is expressly stated that we do this completely as a service to you the customer with data provided by the original equipment manufacturers and we provide this service solely with the information about your vehicle and application provided by you (our customer) at the time of order entry. We assume no responsibility in the event that the part selection is completed incorrectly or in the event that the catalog tools are incorrect. Final selection of a part number is ALWAYS the customer responsibility and customer warrants that they have selected this part at their own risk in the event the part does not fit their application. This typically means that you will be responsible for all shipping and handling charges for the original delivery of the item(s) to you with your original order as well as any return shipping charges necessary to return your item(s) for purchase credit. We always recommend that if you have any questions related to your application, you should use the online cataloging tools provided by the original equipment manufacturer and/or place your own telephone call to the OEM for technical support. If you have any question(s) related to whether or not the OEM warrants their catalog tools, please contact the OEM with your questions regarding this concern. We provide links to the OEM cataloging tools on each and every product detail page of our website to assist you.

PAYMENT PROCESSING AT ACTION AUTO PARTS:
When paying by credit card or online check processing on our site, your payment IS NOT immediately and automatically processed by our website. Your credit card is pre-authorized by Authorize.net and your payment details are transmitted to us on our encrypted server. The processing of the payment for your order is delayed to be sure that your order is received by us in a deliverable and acceptable format. Once we have reviewed your order, we may approve it as received and continue to process your payment after we have sent you notification that we have accepted your order. If the order is not immediately approved, we will recommend changes to your order as noted above. During our order review process, your payment is NOT processed until we receive your final approval of our Modified Order Agreement.

Once we do process payment, payment is processed in the name of Action Auto. If you have any questions, please feel free to Contact Us.

SHIPPING RESPONSIBILITY:
All of your shipments from Action Auto Parts are delivered by us or warehouse fulfillment partners who are part of our distribution network. Some of our shipments are shipped directly from our vendor(s) facilities which allows us to serve you from one or several locations across the United States and Canada. Our shipments of YOUR products are offered F.O.B. Point of Origin. This means that it is important for you to to note that shipping is sometimes YOUR responsibility. You should select and compensate us for the shipping service which will best suit the needs of your shipment - including the addition of insurance should you desire to insure your package against loss or shipping damage. This means that you can not elect the most economical method of shipping and hold us responsible for shipping loss, damage, or other responsibility beyond the scope of your selected shipping service. Shipping loss or damage is the responsibility of the carrier - not Action Auto Parts. If you have any questions related to shipping services, every carrier describes its services and responsibilities in extensive detail on their respective website(s).

INTERNATIONAL DUTIES & VALUE ADDED TAXES: (International Shipping is temporarily suspended)
International customers may be subject to taxes, duties, and/or customs fees upon receipt of their order. Under no circumstances have we stated or implied that Action Auto Parts has paid or will pay your taxes due to your local tax authorities. DO NOT refuse your shipment to avoid your tax obligations! We will not credit you any expense incurred as a result of your refusal of a shipment. Please see also UNDELIVERABLE PACKAGES below.

Due to varying custom laws, we cannot advise you if you will incur custom fees. Please check with your local customs department if you have questions related to importation of products from the United States!

UNDELIVERABLE PACKAGES: (International Shipping is temporarily suspended)
International and domestic customers beware! Unless we made an error in processing your shipment, you are responsible to assure package delivery services. You are responsible to provide an accurate shipping address; and, if your signature is required upon delivery, you are responsible to be present to receive the delivery. Please be sure to specify your delivery address as necessary to receive your package in a timely manner from the shipping carrier. If we incurr additional expense from the carrier for repeated delivery attempts, undeliverable mail, unclaimed mail, adult not present, returned and/or refused packages (unless we made an error), you hereby expressly agree to allow us to charge these additional expenses against your previously authorized credit card and/or online check payment account.

INVOICE/BILLING DISCREPANCIES:
In the event that you receive a shipment from us and there are errors with the fulfillment of your order, please report your shipping discepancies with us via email through the following page link - Contact Us. It is very helpful and imperitive that we have written notification of your order discrepancy. All shipping discrepancies must be reported promptly with seven (7) calendar days of your receipt of your package.

RETURN POLICY:
Action Auto Parts offers only the finest products available and we make every effort to meet your high standards for quality products, accurate descriptions, reliable shipping and exceptional customer service. If you should experience a problem, question or concern, please Contact Us and we will be pleased to assist you.

All of our product manufacturers guarantee their products to be free of manufacturer defects. If for any reason you are not satisfied with a product, please Contact Us. If you are dissatisfied for any reason, your responsibility to us is to keep your original purchase in its original packaging along with your sales receipt. We will not be responsible for crediting your purchase costs nor your shipping costs upon return of your products without our consent. Since we deal with several wholesale sources, we may, under certain circumstances, need to return your item to a third party OEM or distributor and receive their consent to the return of your purchase. If your item was damaged during shipment, please contact us and we will assist you with the filing of a claim with the shipping company.

If you are not satisfied with your item(s), you may return, with our expressed consent, some items to us within a period of 30 days. All original shipping & handling costs and special order fees when applicable are non-refundable unless we made a shipping error. Should we approve the return of an item, you will be responsible to pay shipping costs even in the event that a product is exchanged or warranted by Action Auto Parts. Some items, particularly but not limited to special order items, may be subject to a restocking fee as high as 20% of your purchase price of the item(s) being returned. Some items purchased may not be returned at all so please take care in making a purchase for an item in which you are familiar. We can not allow you to return electrical or electronic items of any kind.

We do not directly warrant any purchases. Action Auto Parts passes through all warranty provisions provided by the original equipment manufacturers. We work with all of our customers to effectively process warranty claims made within 1 year from date of purchase or within a lesser term as specified by the OEM. Your warranty claim with Action Auto Parts must be initiated in writing and you should make a complete attempt to describe the defect in materials and workmanship that you have with the product. We will issue you a Return Authorization that will instruct you to return the item(s) to the warehouse which filled your original order. You are responsible for payment of return freight as well as for freight charges that apply to the shipment of your replacement item. This shipping cost disclaimer is provided herein to assure that we can offer the lowest possible price for the items offered on this website. Consumers doing business online at Action Auto Parts hereby expressly agree to be responsible for all shipping costs of ay items to and from our warehouse distributors for any reason whatsoever except whereas we make a mistake in delivery of the item to you. Consumers shopping online at Action Auto Parts also consent to be responsible for all consequential damages related to their purchase(s) inclusive of lost service time, installation labor costs, and other typical costs related to your purchase.

SPECIAL ORDER ITEMS:
These items are not available from our current inventory and not commonly stocked within our current inventory; however, they may be available by special order from the Original Equipment Manufacturer. Orders containing SPECIAL ORDER items can not be cancelled by customer once entered and the SPECIAL ORDER items are NON-REFUNDABLE and NON-RETURNABLE to our warehouse. Special order fees may apply to certain items. We encourage you to select your part number carefully for your application using the online catalog tools provided by the manufacturer. Please Contact Us by email to inquire about the availability of special order items. We reserve the right to cancel your special order in the event that the order can not be filled by the manufacturer due to obsolescence or lack of availability of the item(s) for any reason. If your order is cancelled in whole or in part by Action Auto Parts, all applicable special order fees and shipping and handling expenses related to the purchase of these special order items will be refunded as well.

SHORT SHIPMENTS & PARTIAL SHIPMENT OF ORDERS:
It is expressly understood on entry of your order at Action Auto Parts that some items can be short stocked at actual time of order fulfillment. While we make every attempt to process orders in their entirety, we can not stop or avoid all circumstances where we may have insufficient stock to ship your order completely. In this circumstance, we request that you notify us immediately of the missing item(s) and we will review the shipping history with the fulfillment center. Once we verify the shipping shortage, we reserve the right to either enter a seperate order to ship your missing items (if possible), or we will issue full credit for the purchase price of the items as well as the shipping costs applicable to those items only.

TYPOGRAPHICAL ERRORS:
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers or from staff error, we shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is cancelled, we shall immediately issue a credit to your credit card account in the amount of the charge.

EMAIL RECEIPT
After you place an order with us, you should receive an email acknowledgment (normally within 24 hours) to confirm that we have accepted your order. This email will contain the details of your order, the itemized and total amounts that will be billed to your credit card, including all applicable taxes and other charges. Please review this receipt carefully to confirm that we properly understood your order.

TERMS & CONDITIONS OF SALE AT ACTION AUTO PARTS

1. Acceptance of Agreement. You agree to the terms and conditions outlined on this page ("Agreement") with respect to our site (the "Site"). This Agreement constitutes the entire and only agreement between us and you, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the Site, the content, products or services provided by or through the Site, and the subject matter of this Agreement. This Agreement may be amended at any time by us from time to time without specific notice to you. The latest Agreement will be posted on the Site, and you should review this Agreement prior to using the Site.

2. Copyright. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by you of any such matters or any part of the Site, except as allowed by Section 4, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials.

3. Trademarks. There are thousands of registered trademarks used in the delivery of information on our website and these are trademarks or registered trademarks of the companies in which the products represent. We use these trademarks with the implied consent of the manufacturers solely in the active promotion and sale of their proprietary products. We make absolutely no product substitutions with our customers without the disclosure and consent of the customer typically in the event that a product request can not be fulfilled due to obsolesence or national back order. Other product and company names mentioned on the Site may be trademarks of their respective owners.

4. Limited Right to Use. The viewing, printing or downloading of any content, graphic, form or document from the Site grants you only a limited, nonexclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, preparation of derivative works or other use. No part of any content, form or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your personal use (but not for resale or redistribution).

5. Editing, Deleting and Modification. We reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Site.

6. Indemnification. You agree to indemnify, defend and hold us and our partners, attorneys, staff and affiliates (collectively, "Affiliated Parties") harmless from any liability, loss, claim and expense, including reasonable attorney's fees, related to your violation of this Agreement or use of the Site. You agree to limit our maximum responsibility under any circumstance to be not more than the return cost of the item(s) purchased from us inclusive of your original shipping and handling fees.

7. Nontransferable. Your right to use the Site is not transferable. Any password or right given to you to obtain information or documents is not transferable.

8. Disclaimer and Limits. THE INFORMATION FROM OR THROUGH THE SITE ARE PROVIDED "AS-IS" AND "AS AVAILABLE" AND ALL WARRANTIES WITH RESPECT TO THE DATA PUBLISHED ON OUR WEBSITE, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE DATA, INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY DATA, INFORMATION OR SERVICE. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SITE AND THE INFORMATION WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

All responsibility or liability for any damages caused by viruses contained within the electronic file containing the form or document is disclaimed. WE WILL NOT BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT MAY RESULT FROM USE OF OR INABILITY TO USE OUR SITE. OUR MAXIMUM LIABILITY TO YOU UNDER ALL CIRCUMSTANCES WILL BE EQUAL TO THE PURCHASE PRICE YOU PAY FOR ANY GOODS, SERVICES OR INFORMATION.

9. Use of Information. We reserve the right, and you authorize us, to the use and assignment of all information regarding Site uses by you and all information provided by you in any manner consistent with our Privacy Policy.

10. Third-Party Services. We allow access to or advertise third-party merchant sites ("Merchants") from which you may purchase certain goods or services. You understand that we do not operate or control the products or services offered by Merchants. Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service. We are not a party to the transactions entered into between you and Merchants. You agree that use of such Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY US, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE.

11. Third-Party Merchant Policies. All rules, policies (including privacy policies) and operating procedures of Merchants will apply to you while on such sites. We are not responsible for information provided by you to Merchants. We and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other.

12. Privacy Policy. Our Privacy Policy, as it may change from time to time, is a part of this Agreement. For additional information about our Privacy Policy, please visit this page link - Privacy Policy.

13. Payments. You represent and warrant that if you are purchasing something from us or from Merchants that (i) any credit information you supply is true and complete, (ii) charges incurred by you will be honored by your credit card company, and (iii) you will pay the charges incurred by you at the posted or subsequently acknowledged changes to proposed prices, including any applicable taxes.

14. Securities Laws. This Site may include statements concerning our operations, prospects, strategies, financial condition, future economic performance and demand for our products or services, as well as our intentions, plans and objectives, that are forward-looking statements. These statements are based upon a number of assumptions and estimates which are subject to significant uncertainties, many of which are beyond our control. When used on our Site, words like "anticipates," "expects," "believes," "estimates," "seeks," "plans," "intends" and similar expressions are intended to identify forward-looking statements designed to fall within securities law safe harbors for forward-looking statements. The Site and the information contained herein does not constitute an offer or a solicitation of an offer for sale of any securities. None of the information contained herein is intended to be, and shall not be deemed to be, incorporated into any of our securities-related filings or documents.

15. Links to other Web Sites. The Site contains links to other Web sites. We are not responsible for the content, accuracy or opinions express in such Web sites, and such Web sites are not investigated, monitored or checked for accuracy or completeness by us. Inclusion of any linked Web site on our Site does not imply approval or endorsement of the linked Web site by us. If you decide to leave our Site and access these third-party sites, you do so at your own risk.

16. Copyrights and Copryright Agents. We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed;
A description of where the material that you claim is infringing is located on the Site;
Your address, telephone number, and email address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
and A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent for Notice of claims of copyright infringement on the Site can be reached as follows:

By mail:

Action Auto Parts
795 North Main St
Providence, RI 02904

By email: Contact Us

17. Refund Policy. If a product purchased by you proves to be defective or not to your reasonable satisfaction, you can return the product within 30 days of receipt, with and only with a properly issued Return Goods Authorization. To request your return goods authorization, please send us an email at the following link Contact Us. In such event, we will provide you a credit for other purchases on the Site (less shipping and handling charges incurred). This Section 17 sets forth your sole and exclusive right to refund and return.

18. Information and Press Releases. The Site contains information and press releases about us and our affiliates. While this information was believed to be accurate as of the date prepared, we disclaim any duty or obligation to update this information or any press releases. Information about companies other than ours contained in the press release or otherwise, should not be relied upon as being provided or endorsed by us.

19. Governing Law. THE PARTIES AGREE THAT THIS AGREEMENT, ANY SALES THERE UNDER, OR ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND ACTION AUTO PARTS. arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement, Action Auto Parts advertising, or any related purchase SHALL BE GOVERNED BY THE LAWS OF THE STATE OF RHODE ISLAND, WITHOUT REGARD TO CONFLICTS OF LAW.

20. Dispute Resolution. This Agreement shall be treated as though it were executed and performed in the State of Rhode Island and shall be governed by and construed in accordance with the laws therein (without regard to conflict of law principles). Any cause of action by you with respect to the Site (and/or any information, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in Section 8 and Section 10. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against either party. All legal proceedings arising out of or in connection with this Agreement shall be brought solely in the State of Rhode Island. You expressly submit to the exclusive jurisdiction of said courts and consents to extra-territorial service of process. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.