Effective Date: July 16, 2012
Welcome to www.roamright.com (the “Website”)! The Website is provided by Arch Capital Group Ltd. and its subsidiaries (noted below) (collectively, “Company,” we,” “our”, or “us”). RoamRight® is a trade name used by Arch Insurance Company and owned by Arch Capital Group (U.S.) Inc., which are both subsidiaries of the Company. These “Terms and Conditions of Use” govern your use of the Website, regardless of how you access or use it. These Terms and Conditions of Use may also apply to interactive features, widgets, applications, content or downloads that are owned and/or operated by us, are available through the Website or that interact with the Website and post links to these Terms and Conditions of Use. Some of Company’s other websites may have similar or different terms that govern the use of those websites so we encourage you to review each of our website’s terms prior to using or accessing one of our other websites.
1. Solicitation, Licensing and Regulatory Issues.
No insurance product or security is offered or will be sold in any jurisdiction in which such offer or solicitation would be unlawful under the laws of such jurisdiction. Not all insurance coverages or products are available in all jurisdictions.
RoamRight travel insurance is underwritten by Arch Insurance Company. Arch Insurance Company (a Missouri corporation, NAIC #11150) is licensed as an insurer in all 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands.
2. Opening and Terminating Accounts.
If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your device used to access the Website so that others may not access any password protected portion of the Website using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms and Conditions of Use, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
3. Terms Applicable For Purchases on the Website
A. Generally. To purchase any goods and/or services on our Website, you must be at least eighteen (18) years of age or the applicable age of majority in your jurisdiction of residence. Prior to the purchase of any goods or services on our Website, you must provide us with a valid credit card number and associated payment information including all of the following: (i) your name as it appears on the card, (ii) your credit card number, (iii) the credit card type, (iv) the date of expiration; and (v) any activation numbers or codes needed to charge your card. By submitting that information to us, you hereby agree that you authorize us to charge your card at our convenience but within thirty (30) days of credit card authorization. All sales of products and services are subject to the terms and conditions within each insurance policy. For each product or service that you order on the Website, you agree to pay the price applicable (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. We will automatically bill your credit card or other form of payment submitted as part of the order process for such price. Please note that we do not provide price protection or refunds in the event of a price drop or promotional offering.
B. Methods of Payment, Credit Card Terms and Taxes. All payments must be made by Visa, MasterCard, Discover and American Express. We currently do not accept cash, personal or business checks or any other payment form, although in the future we may change this policy. Your card issuer agreement governs your use of your designated card, and you must refer to that agreement and not this Terms and Conditions of Use to determine your rights and liabilities as a cardholder. You hereby represent and warrant that you will not use any credit card or other form of payment unless you have all necessary legal authorization to do so. You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless you notify us of any discrepancies within sixty (60) days after they first appear on your credit card statement, you agree that they will be deemed accepted by you for all purposes. If we do not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by us or our agents. Sales taxes, or other taxes, customs, import/export charges, or similar governmental charges are not included in the price of the products. You are responsible for paying any such taxes or charges imposed on your purchases, including, but not limited to, sales, use or value-added taxes. We shall automatically charge and withhold the applicable tax for orders to be delivered to addresses within any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
C. Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order for an insurance policy, nor does it constitute confirmation of our offer to sell a policy to you. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. Your order will be deemed accepted by us upon our issuance of the insurance policy that you have ordered. We may require additional verifications or information before accepting any order. Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order, your sole and exclusive remedy is either that: (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion (if your credit card has already been charged for the order); or (b) we will not charge your credit card for the cancelled portion of the order. Do not assume that a cancellation or change of an order you have placed with us has been effected until you receive a confirmation from us via email or the Website. As stated above, you will be responsible for, and your credit card or third-party payment account may be charged for, the payment of all fees associated with orders already processed before your cancellation/change request was received.
D. No Responsibility to Sell Mispriced Products or Services. We do our best to describe every item, product or service offered on this Website as accurately as possible. However, we are human, and therefore we do not warrant that specifications or pricing on the Website is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications of any policy, we shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card prior to cancellation, we will issue a credit to your account in the amount of the charge. Any insurance policy purchased contains the terms and conditions applicable to such policy. In the event of any conflict between the policy and the description of the policy on this Website, the policy shall govern.
E. Modifications to Prices or Billing Terms. COMPANY RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR PRODUCTS OR SERVICES SOLD, EFFECTIVE IMMEDIATELY UPON POSTING ON THE WEBSITE OR BY E-MAIL DELIVERY TO YOU.
5. Intellectual Property.
The design of this Website and its content are the property of Company and are protected by copyright and other intellectual property laws. Company hereby authorizes you to view and download the content portion of this Website only for your personal use, provided that you retain, on any copies of the materials, all copyright and other proprietary notices contained on the original materials. You may not otherwise copy, reproduce, modify, adapt, display, perform, publish, create derivative works from, store, sublicense, translate, sell, rent, reverse engineer, decompile, disassemble, or otherwise exploit this Website or its content.
The display of any trade names, trademarks, service marks, logos, or domain names on this Website does not imply that a license of any kind has been granted with respect to such trade names, trademarks, service marks, logos, or domain names. Any unauthorized downloading, re-transmission or other copying or modification of trade names, trademarks, service marks, logos or domain names may be a violation of trademark laws and could subject you to legal action.
You acknowledge that any software which may be available or provided to you on this Website may contain technology that is subject to strict controls pursuant to export control laws and regulations of the United States of America and other countries and jurisdictions. You hereby agree that you will not transfer or export such software in violation of such applicable export laws and regulations. We do not authorize the downloading or exportation of any software or technical data from this Website to any jurisdiction prohibited by such export controls laws and regulations.
You should be aware that the Internet is not secure. If you choose to send any electronic communications by means of this Website, you do so at your own risk. We do not guarantee that such communications will not be intercepted or changed or that they will reach the intended recipient securely.
YOUR ACCESS TO AND USE OF THIS WEBSITE ARE AT YOUR SOLE RISK. YOU ARE ENTIRELY LIABLE FOR YOUR ACTIVITIES. WE DO NOT WARRANT THE ACCURACY, COMPLETENESS, TIMELINESS OR OTHER CHARACTERISTICS OF ANY CONTENT AVAILABLE ON OR THROUGH THIS WEBSITE. THIS WEBSITE AND THE INFORMATION ON IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT WARRANT THAT THIS WEB SITE IS FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS.
WE SHALL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, CAUSED BY USE OF, OR RELIANCE ON, OR INABILITY TO USE OR ACCESS, OR DELAYS IN, OR INACCURACIES OR ERRORS OR DEFECTS OR OMISSIONS IN THE WEBSITE, WHETHER RESULTING FROM IMPAIRED OR LOST DATA, SOFTWARE OR COMPUTER FAILURE OR ANY OTHER CAUSE, BY YOU OR ANY OTHER THIRD PARTY, REGARDLESS OF THE CLAIM AS TO THE NATURE OF THE CAUSE OF ACTION, AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
YOU HEREBY EXPRESSLY RELEASE COMPANY FROM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DAMAGE CAUSED, DIRECTLY OR INDIRECTLY, TO YOU OR ANY THIRD PARTY AS A RESULT OF USE OF THIS WEBSITE, ITS CONTENT, INCLUDING ANY CONTENT OR FILE DOWNLOADED OR ACCESSED FROM THIS WEBSITE.
You agree to defend, indemnify and hold Company and its employees, agents, officers, directors, contractors, suppliers and other representatives harmless from and against all liabilities, damages, demands, settlements, claims, actions, costs and expenses (including reasonable attorneys’ fees) in connection with or arising from your use of this Website, the Website’s content as it may change from time to time, or your violation of these Terms and Conditions of Use. We may, if necessary, participate in the defense of any claim or action at your expense and any negotiations for settlement. We reserve the right, on notice to you, to assume exclusive defense and control of any claim or action subject to indemnification by you, without relieving you of your indemnification obligations hereunder. Upon learning of a claim by a third party that your use violates or allegedly violates a third party’s rights, you agree to promptly notify us of any such claim. You agree to cooperate with us as reasonably required in the defense of any such claims, and you shall not in any event settle any such claim or matter without the written consent of Company.
9. User Conduct.
You may not use the Website to conduct any activity that is illegal or violates the rights of others. You may not use any robot, spider, scraper, automated scripts or other automated means to access the Website or content or services provided on the Website for any purposes. You shall not attempt to make the Website unavailable through denial-of-service attacks or similar means or use the Website in a manner that could damage, disable or impair the Website.
10. Remedies for Misuse.
You agree that any unauthorized use of this Website or its contents that may cause Company immediate and irreparable harm for which money damages may not constitute an adequate remedy. You agree that we may, with or without cause, immediately terminate your access to this Website without prior notice. You further agree that injunctive relief, in addition to any other remedies available, may be warranted in order to enforce these Terms and Conditions of Use. You further understand that unauthorized use of this Website may expose you to civil and criminal liability and that we may report violations of these Terms and Conditions of Use to and cooperate fully with the appropriate law enforcement authorities concerning any violations hereof.
11. Links to Third Party Sites.
This Website may contain hyperlinks to websites operated by persons or entities other than Company. Such hyperlinks are provided for your reference and convenience only. Please be aware that we do not monitor, endorse or accept responsibility for the content on such websites or the operator or operations of such websites. You are solely responsible for determining the extent to which you may use any content at any other web sites to which you might link from this Website. You agree not to hold Company responsible for the content or operation at any other web sites to which you might link from this Website. Selected content on the Website is provided by a third party. We have no control over, and take no responsibility for supplementing, correcting or updating that information. Furthermore, we make no warranties or representations of any kind whether with respect to its accuracy, completeness, timeliness or otherwise. We have no obligation to correct or update that information and shall not be liable for damages of any kind arising out of your access, inability to access or reliance upon the investor information contained in this Website.
You agree that you will not upload to, distribute, or otherwise publish on the Website any slanderous, obscene, libelous, or defamatory material. You are solely responsible for any content you post to this Website and represent and warrant that such content: (a) shall not be fraudulent; (b) shall not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (c) shall not violate any law, statute, ordinance or regulation (including without limitation those governing import/export control, consumer protection, unfair competition, anti-discrimination or false advertising); and (d) shall not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information.
13. Governing Law, Jurisdiction, No Class Actions and Waiver of Injunctive Relief.
We hope we never get into any disputes with you in connection with our Website, but just in case, here are some things that would apply:
A. GOVERNING LAW/JURISDICTION. THESE TERMS AND CONDITIONS OF USE AND THE INTERPRETATION OF THESE TERMS AND CONDITIONS OF USE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THIS WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
B. Arbitration. You and we agree that, to the fullest extent permitted by applicable law, any controversy or claim in connection with or related to the Website or these Terms and Conditions of Use not otherwise resolved between you and Company will be settled solely by binding arbitration by a single neutral arbitrator who is a lawyer or retired judge in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), administered in accordance with the AAA’s Supplementary Procedures for Consumer-Related Disputes; provided, however, that any issues relating to Company’s intellectual property rights, including any such rights Company claims that may be in dispute, shall only be subject to arbitration if Company’s President agrees in writing to have such subject to arbitration. For purposes of certainty, any dispute that may arise out of or is related to an insurance policy that we issued to you (regardless of whether the policy was issued through this Website or elsewhere) shall be governed by the dispute resolution process set forth in the policy itself (if any). However, before either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, and the proposed resolution. We will send notice to you based on the contact information you have provided us and notice to us must be sent to: RoamRight, Executive Plaza IV, 11350 McCormick Road, Suite 102, Hunt Valley, MD 21031 (Attn: Legal Department). Company and you agree to make attempts to resolve any dispute. If the parties cannot resolve the dispute within forty-five (45) days of receipt of the notice to arbitrate, then either of us may submit the dispute to formal arbitration. If a party submits the dispute to formal arbitration hereunder and the AAA is unwilling or unable to set a hearing date within forty-five (45) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), using its streamlined Arbitration Rules and Procedures, or any other mutually agreeable arbitration administration service.
In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in these Terms and can award the prevailing party(ies) damages and other relief. You and we each further agree that any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration or other proceedings with any claim or controversy of any other party; provided, however, that if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought in court. If an in-person hearing is required, the arbitration hearing will be conducted in New York, New York (unless prohibited by applicable law) and judgment on the arbitration award may be entered into any court having jurisdiction of it. The parties will pay the administrative and arbitrator’s fees in accordance with the applicable arbitration rules; provided, however, if applicable law requires Company to pay a greater portion of such fees in order for the arbitration provision to be enforceable, Company shall have the discretion to elect to pay such fees and proceed to arbitration. You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 or www.adr.org and from JAMS at (949) 224-1810 or http://www.jamsadr.com. Discovery shall be permitted pursuant to the applicable arbitration rules. The arbitrator’s award will consist of a written statement stating the disposition of each claim, and will provide a statement of the essential findings and conclusions on which the award is based. The award shall be enforceable by any court with jurisdiction over the parties. Notwithstanding the foregoing, either of us may bring qualifying claims in small claims court.
C. No Class Actions. To the fullest extent permitted by applicable law, you agree that any and all disputes, claims and causes of action you may have in connection with or related to the Website or these Terms and Conditions of Use will be resolved individually, without resort to any form of class action.
D. WAIVER OF INJUNCTIVE RELIEF. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.
14. General Provisions.
A. Updates to Terms and Conditions of Use. Company reserves the right to modify these Terms and Conditions of Use, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and Conditions of Use on a regular and frequent basis. The Updated Terms will be effective as of the time that Company posts them on the home page of the Website, or such later date as may be specified in them.
B. Operation of Website; Availability of Products and Services; and International Issues. Company controls and operates the Website from its U.S.-based offices in the U.S.A., and Company makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Website may describe products and services that are available only in the U.S.A. (or only parts of it) and are not available worldwide. We reserve the right to limit the availability of the Website and/or the provision of any content, program, product, service, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You and we disclaim any application to these Terms and Conditions of Use of the Convention on Contracts for the International Sale of Goods.
C. Travel Assistance Services Offered Through the Website. We may use third party vendors to perform certain services on our behalf that you access or purchase through Website, such as travel assistance services. Neither Company, nor our vendors, that offer these services are referral services and we do not recommend or endorse any particular medical provider, medical recommendation, medical diagnosis, or medical treatment plan. No information used as part of this service should be construed as health advice. We do not offer any warranties regarding any information either on the Website or obtained through any of our vendors, third party providers or any travel assistance services. The use of our travel assistance services is on an “as is” basis. Company, its licensors, contractors, vendors and any third-party mentioned on this Website, to the fullest extent permitted by the law, disclaim all warranties, expressed or implied, statutory or otherwise. As a condition of use of our travel assistance or similar services, you agree to hold Company, its licensors, vendors, contractors and all of its partners and any third-party mentioned on this Website harmless for any unintended consequences. We and our licensors, vendors, contractors and all of its partners and any third-party mentioned shall have no liability for claims by or damages for any user of these services. In the event of medical or mental emergency, do not call the travel assistance services and instead please contact emergency services (call 911 in the United States), a medical professional, or a trained counselor immediately.
D. Export Controls. Software related to or made available by the Website may be subject to export controls of the U.S.A. No software from the Website may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of these Terms and Conditions of Use, includes Cuba, North Korea, Iran, Sudan, and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). By downloading any software related to the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
E. Severability; Interpretation. If any provision of these Terms and Conditions of Use is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms and Conditions of Use, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms and Conditions of Use (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter.
F. Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
G. Investigations; Cooperation with Law Enforcement; Termination; Survival. Company reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Website security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and Conditions of Use, (iii) investigate any information obtained by Company in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and Conditions of Use, and (vi) discontinue the Website, in whole or in part, or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Company under these Terms and Conditions of Use. Upon suspension or termination of your access to the Website, or upon notice from Company all rights granted to you under these Terms and Conditions of Use will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of these Terms and Conditions of Use, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Company in these Terms and Conditions of Use, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
H. Assignment. Company may assign its rights and obligations under these Terms and Conditions of Use, in whole or in part, to any party at any time without any notice. These Terms and Conditions of Use may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Company.
I. No Waiver. Except as expressly set forth in these Terms and Conditions of Use, (i) no failure or delay by you or Company in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms and Conditions of Use will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.