Privacy and Terms

Our Policy:

Welcome to the web site (the “Site“) of MyDigitalShield, Inc.(“MDS“, “we”, “us” and/or “our”). This Site is operated by MDS and has been created to provide information about our MDS and our cloud security service, hardware devices, software, mobile applications and related services (together with the Site, the “Services“) to our Service visitors (“you”, “your”). This Privacy Policy sets forth MDS’s policy with respect to information including personally identifiable data (“Personal Data“) and other information that is collected from visitors to the Site and Services.

Information We Collect:
When you interact with us through the Services, we may collect Personal Data and other information from you, as further described below:

Personal Data That You Provide Through the Services: We collect Personal Data from you when you voluntarily provide such information, such as when you contact us with inquiries, respond to one of our surveys, register for access to the Services or use certain Services. Wherever MDS collects Personal Data we make an effort to provide a link to this Privacy Policy.

Monitoring and Inspection of Data in Transit: MDS will scan and monitor, as well as remove or replace content as part of it’s OmniShield filtering service. Some examples are, but not limited to, removing advertising, malicious attacks vectors and files, as well as viruses. Replacing content includes, but not limited to, replacement block pages, content replacement of blocked content and other information necessary for the service. MDS will not store any of the data transmitted but only the logs containing source and destination information, as well as actions taken. It may also store any other log related information within the logs or temporarily store packet capture data for troubleshooting purposes.

By voluntarily providing us with Personal Data, you are consenting to our use of it in accordance with this Privacy Policy. If you provide Personal Data to the Services, you acknowledge and agree that such Personal Data may be transferred from your current location to the offices and servers of MDS and the authorized third parties referred to herein located in the United States.

Other Information:

Non-Identifiable Data: When you interact with MDS through the Services, we receive and store certain personally non-identifiable information. Such information, which is collected passively using various technologies, cannot presently be used to specifically identify you. MDS may store such information itself or such information may be included in databases owned and maintained by MDS affiliates, agents or service providers. The Services may use such information and pool it with other information to track, for example, the total number of visitors to our Site, the number of visitors to each page of our Site, and the domain names of our visitors’ Internet service providers. It is important to note that no Personal Data is available or used in this process.

In operating the Services, we may use a technology called “cookies.” A cookie is a piece of information that the computer that hosts our Services gives to your browser when you access the Services. Our cookies help provide additional functionality to the Services and help us analyze Services usage more accurately. For instance, our Site may set a cookie on your browser that allows you to access the Services without needing to remember and then enter a password more than once during a visit to the Site. In all cases in which we use cookies, we will not collect Personal Data except with your permission. On most web browsers, you will find a “help” section on the toolbar. Please refer to this section for information on how to receive notification when you are receiving a new cookie and how to turn cookies off. We recommend that you leave cookies turned on because they allow you to take advantage of some of the Service features.

We may also use local shared objects, also known as Flash cookies, to display content based upon what you view on our site to personalize your visit.  Flash cookies are different from browser cookies because of the amount of, type of, and how data is stored.  Cookie management tools provided by your browser will not remove Flash cookies.  To learn how to manage privacy and storage settings for Flash cookies click here.

Aggregated Personal Data: In an ongoing effort to better understand and serve the users of the Services, MDS often conducts research on its customer demographics, interests and behavior based on the Personal Data and other information provided to us. This research may be compiled and analyzed on an aggregate basis, and MDS may share this aggregate data with its affiliates, agents and business partners. This aggregate information does not identify you personally. MDS may also disclose aggregated user statistics in order to describe our services to current and prospective business partners, and to other third parties for other lawful purposes.

Our Use of Your Personal Data and Other Information:
MDS uses the Personal Data you provide in a manner that is consistent with this Privacy Policy. If you provide Personal Data for a certain reason, we may use the Personal Data in connection with the reason for which it was provided. For instance, if you contact us by email, we will use the Personal Data you provide to answer your question or resolve your problem. Also, if you provide Personal Data in order to obtain access to the Services, we will use your Personal Data to provide you with access to such services and to monitor your use of such services. MDS and its subsidiaries and affiliates (the “Related Companies”) may also use your Personal Data and other personally non-identifiable information collected through the Services to help us improve the content and functionality of the Services, to better understand our users and to improve the Services. MDS and its affiliates may use this information to contact you in the future to tell you about services we believe will be of interest to you. If we do so, each marketing communication we send you will contain instructions permitting you to “opt-out” of receiving future marketing communications. In addition, if at any time you wish not to receive any future marketing communications or you wish to have your name deleted from our mailing lists, please contact us as indicated below.

If MDS intends on using any Personal Data in any manner that is not consistent with this Privacy Policy, you will be informed of such anticipated use prior to or at the time at which the Personal Data is collected.

Our Disclosure of Your Personal Data and Other Information:
MDS is not in the business of selling your information. We consider this information to be a vital part of our relationship with you. There are, however, certain circumstances in which we may share your Personal Data with certain third parties without further notice to you, as set forth below:

Business Transfers: As we develop our business, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, dissolution or similar event, Personal Data may be part of the transferred assets.

Related Companies: We may also share your Personal Data with our Related Companies for purposes consistent with this Privacy Policy.

Agents, Consultants and Related Third Parties: MDS, like many businesses, sometimes hires other companies to perform certain business-related functions. Examples of such functions include mailing information, maintaining databases and processing payments. When we employ another entity to perform a function of this nature, we only provide them with the information that they need to perform their specific function.

Legal Requirements: MDS may disclose your Personal Data if required to do so by law or in the good faith belief that such action is necessary to (i) comply with a legal obligation, (ii) protect and defend the rights or property of MDS, (iii) act in urgent circumstances to protect the personal safety of users of the Services or the public, or (iv) protect against legal liability.

Your Choices:
You can visit the Site without providing any Personal Data. If you choose not to provide any Personal Data, you may not be able to use certain Services.

Exclusions:
This Privacy Policy does not apply to any Personal Data collected by MDS other than Personal Data collected through the Services. This Privacy Policy shall not apply to any unsolicited information you provide to MDS through the Services or through any other means. This includes, but is not limited to, information posted to any public areas of the Services, such as forums, any ideas for new products or modifications to existing products, and other unsolicited submissions (collectively, “Unsolicited Information”). All Unsolicited Information shall be deemed to be non-confidential and MDS shall be free to reproduce, use, disclose, and distribute such Unsolicited Information to others without limitation or attribution.

Children:
MDS does not knowingly collect Personal Data from children under the age of 13. If you are under the age of 13, please do not submit any Personal Data through the Services. We encourage parents and legal guardians to monitor their children’s Internet usage and to help enforce our Privacy Policy by instructing their children never to provide Personal Data on the Services without their permission. If you have reason to believe that a child under the age of 13 has provided Personal Data to MDS through the Services, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Web Sites:
This Privacy Policy applies only to the Services. The Services may contain links to other web sites not operated or controlled by MDS (the “Third Party Sites”). The policies and procedures we described here do not apply to the Third Party Sites. The links from the Services do not imply that MDS endorses or has reviewed the Third Party Sites. We suggest contacting those sites directly for information on their privacy policies.

Security:
MDS takes reasonable steps to protect the Personal Data provided via the Services from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. However, no Internet or email transmission is ever fully secure or error free. In particular, email sent to or from the Services may not be secure. Therefore, you should take special care in deciding what information you send to us via email. Please keep this in mind when disclosing any Personal Data to MDS via the Internet.

Changes to MDS’s Privacy Policy:
The Services and our business may change from time to time. As a result, at times it may be necessary for MDS to make changes to this Privacy Policy. MDS reserves the right to update or modify this Privacy Policy at any time and from time to time without prior notice. Please review this policy periodically, and especially before you provide any Personal Data. This Privacy Policy was last updated on the date indicated above. Your continued use of the Services after any changes or revisions to this Privacy Policy shall indicate your agreement with the terms of such revised Privacy Policy.

Access to Information; Contacting MDS:
To keep your Personal Data accurate, current, and complete, please contact us as specified below. We will take reasonable steps to update or correct Personal Data in our possession that you have previously submitted via the Services.

Please also feel free to contact us if you have any questions about MDS’s Privacy Policy or the information practices of the Services.

You may contact us as follows: privacy@mydigitalshield.com.

Terms & Conditions

    1. Acceptance of Terms.
      1. MyDigitalShield, Inc. (“MDS”) provides its Service (as defined below) and its web site located at http://omninet.wpengine.com (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
      2. MDS reserves the right, at its sole discretion, to change or modify portions of these TOS at any time. MDS will post changes on this page and will indicate at the top of this page the date these terms were last revised. MDS will also use commercially reasonable efforts to notify you of changes, either through the Services user interface, in an email notification, or other means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new TOS.
    2. Description of Service. The “Service(s)” includes (a) the Site, (b) MDS’s cloud security service and related technologies, (c) any hardware device provided by MyDigitalShield, Inc (“Device(s)”), (d) all Software (as defined below); (e) the Shield Tester vulnerability test tool located at www.shieldtest.com or any site part of the domain shieldtester.com, and (f) any data and other content made available through any of the foregoing (collectively referred to as the “Content”).  Any new features added to or augmenting the Service are also subject to this TOS.
    3. General Conditions/ Access and Use of the Service.
      1. a. Subject to the terms and conditions of this TOS, you may purchase, access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components (excluding the hardware portions of the Devices you have purchased) will remain with and belong exclusively to MDS. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices MDS provides you or publishes in connection with the Service, and you shall promptly notify MDS if you learn of a security breach related to the Service.
      2. Any software that may be made available by MDS in connection with the Service, including without limitation software embedded in, provided with, or installed on Devices, including any error corrections and bug fixes provided by MDS (collectively, “Software”), contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, MDS hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the Device and object code of any Software solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software; or remove any proprietary notices or labels. You agree not to access the Service by any means other than through the interface that is provided by MDS for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of MDS or any third party is granted to you in connection with the Service.
      3. c. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you deliver, provide or otherwise transmit or store (hereafter “transmit(ting)”) in connection with or relating to the Service (“Your Content”). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. MDS may access your account in order to respond to your requests for technical support. By transmitting Your Content on or through the Service, you grant MDS the perpetual right to use your Content free of charge to provide the Service. MDS has the right, but not the obligation, to monitor Content or Your Content. You further agree that MDS may remove or disable any Content uploaded to the Service at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
      4. d. You understand that the operation of the Service, including Your Content, may involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to MDS’ third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. You acknowledge that you bear sole responsibility for backup of Your Content.
      5. e. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service.
      6. f. If you are using the Shield Tester vulnerability test tool, you acknowledge and agree that use of the Shield Tester may involve transmitting potentially harmful code to your computer/network as a test to detect security vulnerabilities, It may also involve port scanning and transmitting a large amount of data which is intended to test service interruption attacks. By doing so in rare cases it could cause service interruption when using the tool. MyDigitalShield is not responsible for any service interruptions or any captured harmful code or for any actions or repercussions that may occur from use of the Shield Tester.

Payment.

    1. a. You shall pay MDS fees for the Service as set for within the Service or on the Site (“Fees”). You shall be responsible for all taxes associated with Services other than U.S. taxes based on MDS’s net income. If you provide MDS with information regarding your credit card or other payment instrument, you represent and warrant to MDS that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
    2. b. During the Term of this Agreement, you hereby authorize MDS to charge the Fees to your credit card on a monthly basis, beginning on the date you order the Services, and continuing every thirty (30) days thereafter until expiration or termination of the Term. MDS will endeavor to promptly ship the Device to you after placing your order. Upon receipt of the Device, you must install your Device and connect to the Service in order to activate the Services (the “Activation Date”). Such Activation Date must be no later within thirty (30) days after ordering the Services. Fees are nonrefundable once paid. No prorated refunds or credits will be provided under any circumstances and you will not receive any refunds for cancellations during a month. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. If payment is not received when due, MDS may immediately and without notice discontinue providing the Services.
    3. c. As part of your purchase of the Services, a Device will be shipped to you. After you have paid for the Services for a period of three months, the Device will belong to you. If you cancel the Services within three months after signing up, you will be charged the amount of the Device in full and you hereby agree to pay such amount.
  1. Confidentiality; Data. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, which may include personally identifying information of individuals (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of MDS includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.
  2. Representations and Warranties; Disclaimer.
    1. a. You represent and warrant to MDS that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your transmitting and other activities (and allow MDS to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and MDS’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you are eighteen (18) years of age or older; and (v) you will use the Services only in compliance with all applicable laws and regulations.
    2. b. MDS does not offer any warranties with respect to Devices, but will endeavor to pass down any third party manufacturer warranties associated with the Device, if applicable. Such third party warranties may not apply to Devices that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with any provided specifications or instructions. EXCEPT FOR BODILY INJURY, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OF ANY DEVICE SHALL BE THE APPLICABLE MANUFCATURER’S WARRANTY FOR SUCH DEVICE.
    3. c. MDS warrants that it shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MDS or by third-party providers, or because of other causes beyond MDS’s reasonable control, but MDS shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, MDS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DEVICES OR THE SERVICE.
    4. d. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE, INCLUDING THE DEVICES, SITE AND CONTENT, AND ANY SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND MDS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT MDS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE OR THAT THE SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, SECURITY OR QUALITY AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM MDS OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS. WITHOUT LIMITING THE FOREOGING, MDS DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL PROTECT AGAINST ALL POSSIBLE THREATS (INCLUDING INTENTIONAL MISCONDUCT BY THIRD PARTIES), THAT THERE WILL BE NO MALFUNCTIONS OR OTHER ERRORS IN YOUR COMPUTERS, NETWORKS OR OTHER SYSTEMS CAUSED BY VIRUS, INFECTION, WORM OR SIMILAR MALICIOUS CODE. You acknowledge and agree that the Internet is not secure and you assume all risk of loss of data, theft of intellectual property, theft due to malicious code (i.e., programming designed to disrupt or deny operations, gather information that leads to loss of privacy or exploitation, gain unauthorized access to your computer system, etc.) or hacking that may result from your use of the Internet.
  3. Termination.
    1. This TOS will commence on the date you accept its term and continue until terminated as set forth herein. You may terminate this TOS at any time by canceling your account and ceasing to use the Services. We may terminate this TOS at any time upon ten days notice to you.
    2. Upon the expiration or termination of this TOS for any reason: (i) MDS will terminate your access to the Service and will cease the provision of all Service; and (ii) if you have not paid in full for the Device, you will promptly return the Device to MDS pursuant to instructions provided by MDS. Termination of this TOS shall not relieve either party of its respective obligations to the other hereunder that arose prior to the effective date of termination.
  4. LIMITATION OF LIABILITY.
    1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL MDS BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, (B) ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM; (C) ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (D) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR (E) ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
    2. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, MDS’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
  5. Indemnification. You shall defend, indemnify, and hold harmless MDS from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. MDS shall provide notice to you of any such claim, suit or demand. MDS reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting MDS’s defense of such matter.
  6. Government Matters. You may not remove or export from the United States or allow the export or re-export of the Devices, Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
  7. Assignment. You may not assign this TOS without the prior written consent of MDS, but MDS may assign or transfer this TOS, in whole or in part, without restriction.
  8. Governing Law.This TOS shall be governed by the laws of the State of Delaware without regard to the principles of conflicts of law. Unless otherwise elected by MDS in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware for the purpose of resolving any dispute relating to your access to or use of the Service.
  9. Privacy. Please visit http://omninet.wpengine.com/privacy to understand how MDS collects and uses personal information.
  10. Publicity. MDS may use your name and/or company name as a reference for marketing or promotional purposes on MDS’s website and in other communication with existing or potential MDS customers, subject to any reasonable trademark guidelines you may provide.
  11. Miscellaneous. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. This TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind MDS in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of MDS to exercise or enforce any right or provision of this TOS shall not be a waiver of that right.