Terms of Service

1. Scope of application and conclusion of agreements

1. We offer the conclusion of agreements about the use of the product Turbofy® only to businesses according to § 14 BGB. We refuse to conclude agreements with consumers and will terminate such agreements without notice for good cause if we have been deceived.

2. The customer's terms and conditions shall not form part of the agreement, even if we are aware of them unless we have expressly agreed to their inclusion. Our terms and conditions shall also apply if we execute the agreement without reservation in the knowledge of the customer's conflicting, deviating, or additional terms and conditions.

3. The option to conclude an agreement on our website is not a legally binding offer by us. Rather, the customer's order is an offer to conclude a corresponding agreement. We may reject this offer without giving reasons. The acceptance of the offer takes place through the confirmation of the conclusion of the contract by us, e.g., by setting up the customer account.

4. The customer must provide truthful and complete information when registering. Subsequent changes to these must be made by the customer without undue delay using the options for change offered by us. If the information has not been updated by the customer, he has no right to correction of invoices issued accordingly.

5. For determining the features of Turbofy®, only our statements at the time of the conclusion of the agreement are decisive. Public statements or advertisements deviating from these are not contractual quality specifications.

2. Provision and use of Turbofy®

1. Upon execution of this Agreement, we grant the customer access to Turbofy® for use via the internet. The customer is granted a non-transferable right to use Turbofy® for its own purposes for the duration of this Agreement. The customer may develop its own offerings using Turbofy®, such as web apps or other applications, and provide them to third parties, provided that these offerings are not mere replicas of the functionalities of Turbofy® without additional services for their users. The customer may not represent itself as a reseller, distributor, or similar provider of our services unless expressly authorized by us. Requests for authorization shall be sent to partner@turbofy.com. We may decline any such request without giving reasons. If authorization is granted, Section 20 shall also apply.

2. Use of Turbofy® in connection with critical infrastructure within the meaning of Section 2 of the German Critical Infrastructure Act (KRITIS-Dachgesetz) requires a separate agreement with us, which we may decline to enter into without giving reasons.

3. Turbofy® may be used with a standard web browser.

4. The customer may not use Turbofy® if and to the extent that such use infringes third-party rights or violates statutory provisions. In the event of any such infringement or violation, the customer shall indemnify us against all third-party claims arising from the infringement or violation, including reasonable costs of legal review and representation, unless the customer is not responsible for the infringement or violation. If any such claim is asserted against us, we shall inform the customer without undue delay. The customer is entitled to participate in the defense against such claims at its own expense.

5. If the customer breaches paragraph 4, we are entitled, at our reasonable discretion and in compliance with the principle of proportionality, first to block the content, functions, or processing operations affected by the breach, to the extent that this can remedy or sufficiently mitigate the infringement. If an infringement of paragraph 4 for which claims could be asserted against us can be remedied only by deleting content, we are entitled to delete that content. We are also entitled to block the customer's access or individual user accounts if a measure pursuant to sentence 1 or 2 would be insufficient or impossible, or if we are required to do so by law or by an enforceable administrative or court order.

   To the extent reasonable for us, we shall inform the customer in advance of the breach and the intended measure, set a reasonable period, and request that the customer remedy the breach. If prior notice cannot reasonably be required of us, we shall provide the information without undue delay after taking the measure. The request or information concerning a measure already taken shall be sent by e-mail and shall state, where possible, the content in question, the breach, the measure to be taken or already taken, and any steps available to remedy the breach.

   Our further rights, including our right to terminate the Agreement with immediate effect for good cause, shall remain unaffected. Any measures taken shall be lifted without undue delay as soon as the conditions required for taking them cease to apply and we become aware of this. To the extent applicable, measures taken under this paragraph shall comply with any data processing agreement concluded with the customer.

6. If the customer permits third parties to use Turbofy® as permitted under paragraph 1, the customer shall impose obligations on those third parties corresponding to paragraph 4 and shall be responsible to us for their acts and omissions. Section 5 shall remain unaffected. Paragraph 5 shall apply accordingly.

7. If, despite having received a corresponding warning notice, the customer continues to breach or repeatedly breaches paragraph 4, we may terminate the Agreement with immediate effect for good cause. We are also entitled to terminate the Agreement with immediate effect for good cause if a single breach of paragraph 4 was so serious that we cannot reasonably be expected to continue cooperating with the customer.

3. Protection of access data

Each party shall utilize proven technology to protect the access data of the customer's users from being accessed by unauthorized third parties. If one party should assume that unauthorized third parties have gained knowledge of access data, it shall inform the other party without undue delay. As soon as the customer knows of a possible breach, it will arrange for the access data of the affected users to be changed. In this case, we are also entitled to reset the access data of the users so that they have to provide a new password when logging into the system the next time.

4. Availability of Turbofy®

1. We warrant the availability of Turbofy®, including the APIs provided for the customer of 99% per contractual month. The availability is measured at the interface to the internet of the data center utilized by us ("measuring point"). Availability is given if Turbofy® can be utilized at the measuring point according to the agreement, unless we are responsible for the specific non-usability by the customer.

2. When determining availability, the following periods are not taken into account:

   1. Non-availability announced with at least one week's notice between 8 p.m. and 8 a.m. Monday through Friday at our headquarters, on weekends and on national holidays in Germany.;

   2. Non-availability notified with at least one hour's notice if it is required urgently to remedy or avert more than insignificant risks to IT security or data protection. The unavailability may not exceed a duration of eight hours per month.

3. Information pursuant to paragraph 2 will be sent by e-mail to the address provided by the customer.

5. Transfer of rights by the customer

The customer grants for the contents stored by him or its users in Turbofy® all rights necessary for the execution of the agreement and guarantees to be able to transfer these rights to us. This includes, in particular, the right to utilize, process, reproduce, distribute, edit and keep available for use to the extent technically required for the execution of the agreement. Otherwise, the indemnification claim from section 2.4 shall apply.

6. Access by third parties

1. The customer may grant third parties access to his customer account and the services provided to him (e.g., several employees each have a user account and are given rights to administer the services used).

2. The actions or omissions performed by the third parties shall be attributed to the customers; this shall apply in particular if the third parties utilize the rights granted to them to use chargeable services.

7. Special regulations for the free version

1. To the extent that the customer utilizes the free version of Turbofy®, the following paragraphs shall apply, which in case of contradictions, shall take precedence over the further provisions of these Terms and Conditions.

2. The free version is provided to the customer as is. We do not owe for this version that it includes a certain scope of functions and that the services owed by us are always available and error-free during the utilization period. We are solely obliged to endeavor to operate the free version with the same care as our paid offers..

3. Each party may terminate this Agreement at any time unless a minimum term has been stipulated with the customer.

4. The free version may be utilized only for such cases where defects in performance, failure of our performance, and loss of data will not cause any damage to the customer or third parties.

8. Fees and billing, changes to agreed fees

1. Any fixed charges agreed with the customer upon conclusion of an agreement will be invoiced by us in advance for the agreed term of the agreement. Any discounts granted to the customer for longer-term agreements are consideration for the longer term of the agreement that the customer enters into with us. Variable charges are billed monthly in arrears.

2. If we are entitled to unbilled receivables of more than 1,000 Euro from variable charges stipulated with the customer, we shall be entitled to invoice such receivables before the end of the respective month.

3. All prices indicated by us are net and are to be understood in the respective currency stipulated.

4. If the customer has provided a credit card for payment, the customer warrants that the credit card is issued to the contracting party and may be utilized to collect the fees due to us. The customer must update the deposited credit card in good time before its validity expires.

5. Customers for which VAT is invoiced under the reverse charge procedure shall deposit their VAT ID in their customer profile; otherwise, we shall be entitled to invoice German VAT to the customer. The customer has no right to subsequent correction of corresponding invoices.

6. In the event of a default of payment by the customer, we shall be entitled to charge a one-time, flat-rate default fee per corresponding invoice per § 288 para. 5 BGB (German Civil Code). The possibility of asserting any further damages caused by default shall remain unaffected.

7. Invoices can be issued in digital form, sent by e-mail, or made available on our website in the customer area.

8. We are entitled to adjust the fees stipulated with the customer. Information about the adjustment must be sent by e-mail to the customer's e-mail address stored in the customer profile at least two weeks before the end of the notice period for the agreement. The adjustment may take effect at the earliest after the date the customer can terminate the agreement after receipt of the information.

9. Term and termination

1. The agreement is binding for the term selected by the customer when placing the order. Before the specified term expires, the agreement can only be terminated for good cause. Otherwise, termination is possible until the end of the last day of the stipulated term of the agreement. If the agreement is not terminated, the fixed term shall be extended by the respective term stipulated at the time of the conclusion of the agreement.

2. The right to terminate for good cause remains unaffected. The following reasons, in particular shall be deemed to be good cause if they exist for the other party:

   1. breach of essential contractual obligations by the other party if the breach is not remedied despite issuance of a notice of default and setting of a reasonable deadline with reference to the right of termination. A reminder and setting of a deadline shall not be required if the violation is considered to be unreasonable;

   2. the rejection of the opening of insolvency proceedings for lack of assets;

   3. the opening of liquidation proceedings;

3. We shall be entitled to terminate the agreement without notice if the provisions of Section 543 (2) No. 3 of the German Civil Code (BGB) apply.

4. Termination according to § 543 para. 2 clause 1 No. 1 BGB due to failure to use Turbofy® in accordance with the agreement is only permissible if we have been given a reasonable opportunity to remedy the defect that failed.

5. Cancellations can be made by e-mail. A notice of termination by the customer shall be sent to support@turbofy.com. Alternatively, a termination can be effected in the customer area.

10. Consequences of termination of the Agreement

1. The customer may export the data stored in Turbofy® at any time using the export functions provided. Unless a switching process pursuant to Section 11 is pending, the customer shall export any data it requires for continued use before termination of the Agreement.

2. Upon termination of the Agreement, the customer's access to Turbofy® and the data stored in Turbofy® shall end. This shall not apply to the extent that Section 11 grants the customer access during an applicable Transitional Period or Retrieval Period.

3. If the data stored in Turbofy® include personal data, the rights and obligations of the parties under any separately concluded data processing agreement shall remain unaffected.

4. Except where Section 11 or mandatory law requires assistance from us, the customer may export its data without further assistance from us.

5. Subject to Section 11 and any separately concluded data processing agreement, the customer's data shall be deleted automatically following termination of the Agreement. Where Section 11 applies, deletion shall take place only after expiry of the applicable Retrieval Period and subject to successful completion of the switching process. The deletion shall be performed in a manner that makes restoration of the data impossible.

11. Switching pursuant to the Data Act

1. The customer may at any time use the API provided by us to export all digital data and digital assets, within the meaning of Regulation (EU) 2023/2854 of the European Parliament and of the Council (the "Data Act"), that are stored in Turbofy®. We shall provide the corresponding API documentation free of charge.

2. In accordance with Article 25 of the Data Act, the customer may, subject to a notice period of two months (the "Notice Period"):

   1. initiate a switch to another data processing service or to on-premises ICT infrastructure; or

   2. instead of switching, request that, upon termination of the Agreement, all digital data and digital assets processed by the customer be erased.

3. The request shall be sent to us by e-mail to support@turbofy.com. The provisions of the Agreement shall continue to apply during the Notice Period and the subsequent transitional period.

4. No later than the expiry of the Notice Period, the customer shall notify us in text form, by e-mail to the address specified in paragraph 3, which switching option it wishes to exercise and, where applicable, provide the details of any third parties authorized by the customer that are involved in the switching process.

5. The switching process shall be completed without undue delay and, where technically feasible, within 30 calendar days after expiry of the Notice Period (the "Transitional Period").

6. If completion within the maximum Transitional Period is technically unfeasible, we shall notify the customer within 14 working days after receipt of the switching request, duly justify the technical unfeasibility in accordance with the requirements of the Data Act, and specify an alternative Transitional Period, which may not exceed seven months.

7. The customer is entitled to extend the Transitional Period once by a period that the customer considers reasonable for its own purposes. Our right to terminate the Agreement on ordinary notice shall remain unaffected.

8. At the customer's request, we shall support the switching process to the extent required by law and, where separately agreed, beyond that extent, and shall provide the relevant information reasonably requested for this purpose.

9. During the Transitional Period, we shall, in accordance with the requirements of the Data Act:

   1. provide reasonable assistance to the customer and third parties authorized by the customer in the switching process;

   2. act with due care to maintain business continuity and continue the provision of the functions or services under the Agreement;

   3. inform the customer of known risks to the uninterrupted provision of the functions or services that are attributable to us; and

   4. maintain a high level of security throughout the switching process and the Retrieval Period, in particular for data transfer and storage, in accordance with applicable Union or national law.

10. Upon expiry of the Transitional Period, a retrieval period of at least thirty (30) calendar days (the "Retrieval Period") shall begin. During the Retrieval Period, the customer may retrieve any remaining data and digital assets through the API in a commonly used, machine-readable format.

11. After expiry of the Retrieval Period, or a later date mutually agreed by the parties, and subject to successful completion of the switching process, we shall fully erase all customer data and digital assets in accordance with applicable data protection laws.

12. After completion of the switching process, the customer shall send a completion notice (the "Completion Notice") in text form, by e-mail to the address specified in paragraph 3, confirming successful completion of the switching process. The switching process shall be deemed successfully completed upon receipt of the Completion Notice.

13. The Agreement shall terminate, and the customer shall be notified of its termination:

    1. upon successful completion of the switching process; or

    2. upon expiry of the Notice Period if, instead of switching, the customer has requested erasure of all data and digital assets.

14. No separate switching charge shall be imposed for the switching process.

15. If the Agreement has an annual term, we shall be entitled, as an early termination penalty pursuant to Article 25 of the Data Act, to an amount equal to the fees that we could have invoiced to the customer if, instead of exercising the right under Article 25 of the Data Act, the Agreement had been terminated on ordinary notice.

16. At turbofy.com/data-portability, we shall publish:

    1. an exhaustive list of all categories of data and digital assets that can be ported during the switching process, including at least all exportable data, and, where applicable, an exhaustive list of the categories of data that are specific to the internal functioning of Turbofy® and excluded from the exportable data where there is a risk of a breach of our trade secrets, provided that such exclusions do not impede or delay the switching process pursuant to Article 23; and

    2. a reference to an up-to-date online register hosted by us containing details of all data structures and data formats, as well as the relevant standards and open interoperability specifications, in which the exportable data are available.

12. Development and improvement of Turbofy®

1. Turbofy® is not a static product. Instead, we intend to develop Turbofy® further to offer new features and offerings that make Turbofy® more attractive and secure. The scope of Turbofy® is, therefore, subject to change. If changes should be made, with which existing essential features should be omitted or significantly restricted, we will inform the customer about this in reasonable time to the e-mail address provided in his customer account.

2. If changes to Turbofy® should be objectively unreasonable against the background of the services owed by us, the customer has a right of extraordinary termination, which must be exercised with a notice period of two weeks. The period shall commence when the customer becomes aware of the change. This right of termination does not apply to changes that implement legal changes, court orders, or to ensure IT security, as well as to changes to and the omission of features that we have made available to the customer as part of a beta test. For these, we reserve the right at any time not to continue to offer them or only to provide them in a modified form.

3. We are looking forward to any suggestion for improvement from a customer. For good order, however, we must stipulate that the customer transfers to us, free of charge, all rights to his suggestion that are necessary for its possible implementation and any exploitation. In other words, every suggestion is welcome, but we do not provide any compensation for it.

13. Non-fulfillment of main performance obligations incumbent upon us

1. If the owed availability of Turbofy® is not met for a contractual month, the agreed usage fee shall be reduced proportionally for the period in which Turbofy® was not available to the customer to the extent stipulated.

2. We have to demonstrate that we are not liable for the shortfall. If the customer has not notified us of the lack of availability of Turbofy®, he has to prove upon our objection that we have otherwise gained knowledge of the lack of availability.

14. Defects

1. In case of defects of performance, the customer shall be entitled to the statutory rights as modified hereinafter, whereby we shall determine whether we shall remedy the defect by repair or new delivery.

2. Our no-fault liability for damages (§ 536a BGB) for defects existing at the time of conclusion of the agreement shall be excluded, unless the defect relates to a quality warranted by us (guarantee, § 276 para. 1 BGB).

3. A limitation period of one year shall apply to claims. This limitation period shall not apply to claims for damages due to the infringement of claims for defects; in this respect, the provisions on liability shall apply.

4. If the customer notifies the existence of a defect and if, as a result of our resulting activity, it is determined that no defect exists in our performance, the customer shall reimburse our expenses incurred for this in accordance with the agreed hourly rates or, in the absence of an agreement, with reasonable hourly rates. This paragraph shall not apply if the absence of the defect was not identifiable by the customer when applying the care and knowledge to be expected of him.

5. For features, services, software or other offers that are expressly provided by us as beta versions, any claims for defects shall be excluded, unless we have acted intentionally. The very nature of such beta versions is that they are unfinished and may have defects. Such defects may e.g. result in the loss of data or the inability of Turbofy® to function. Therefore, the customer should only use beta versions, if the occurrence of such defects does not cause any disadvantage for him, especially if it does not cause any damage, for which he would like to hold us or third parties liable.

6. The customer is obliged to notify us without undue delay of any defects in performance of the contract, in particular defects of Turbofy®. If we were not able to remedy the defect as a result of the omission or delay of the notification, the customer is not entitled to reduce the agreed remuneration in whole or in part for the corresponding period, to demand compensation for the damage caused by the defect or to terminate the agreement for cause without notice. The customer must demonstrate that he is not responsible for the failure to notify the defect.

15. Third party rights

1. We warrant that the use of Turbofy® per the agreement does not infringe on third parties copyrights or other proprietary rights.

2. Should this be the case, we shall, at our discretion, acquire the rights required at our own expense or modify Turbofy® at our own cost to ensure that no rights of third parties are infringed anymore while maintaining the services owed to the customer.

16. Liability

1. Liability for intent and gross negligence is unrestricted.

2. In case of simple negligent violation of essential contractual obligations, the liability is limited to foreseeable and contract-typical damages. This liability is further limited to 25,000 Euro per incident. Essential contractual obligations are those whose fulfillment is essential to the due performance of the agreement and on whose fulfillment the breached party may regularly rely. The limitation period for claims under this paragraph shall be one year.

3. Paragraph 2 shall not apply to rights arising from injury to body, health, or life, in the event of fraudulent conduct, in the event of the assumption of a guarantee, in the event of liability for initial incapacity or impossibility for which we are responsible as well as for rights under the Product Liability Act.

4. In all other respects, liability - on whatever legal grounds - is excluded.

17. Non disclosure

1. We shall keep confidential the data stored by the customer in Turbofy®. We will use this data only to fulfill the agreement with the customer. It shall be disclosed to third parties only insofar as it is necessary to fulfill the agreement in our reasonable discretion.

2. Data shall not be subject to confidentiality which (i) was generally known at the time of transmission or becomes generally known thereafter - through no fault of our own, (ii) was already lawfully known to us at the time of disclosure without the existence of a confidentiality obligation, (iii) is lawfully made known to us by third parties after the time of transmission without the existence of a confidentiality obligation, (iv) has been independently developed by us without us having utilized confidential information of the customer for this purpose, (v) become known to us through a permissible analysis of publicly available services or products of the customer or (vi) must be disclosed due to mandatory statutory, official or judicial regulations or court order.

3. This confidentiality obligations shall not be affected by any termination of the agreement.

18. Privacy

1. Any processing of the customer's personal data by Turbofy® is subject to the attached data processing agreement according to Art. 28 GDPR.

2. Apart from that, we undertake to process personal data, which is not subject to the commissioned processing, which the customer provides to us for the fulfillment of the agreement per the applicable data protection regulations.

19. Offsetting and assignment

1. Each party shall be entitled to exercise a right of retention or set-off only to the extent that the underlying counterclaim has been legally established or is not disputed.

2. The assignment of rights and obligations under this agreement or the agreement as a whole to a third party shall only be permitted with the prior consent of the other contracting party. Such consent may not be unreasonably withheld or delayed.

20. Additional Provisions for Authorized Resellers and Distributors

1. If we authorize a customer as a reseller, distributor, or similar provider pursuant to Section 2(1), the provisions of this Section 20 shall additionally apply.

2. We reserve the right to revoke the customer's authorization at any time with one month's notice, unless a longer period has been agreed upon with the customer. We are entitled to an immediate revocation of authorization for just cause.

3. Upon the issuance of authorization, the customer is permitted to represent themselves in a customary and reasonable manner as a "Turbofy® Partner." They must not create the impression that they legally represent us or possess the authority to enter into contracts on our behalf. We maintain the liberty to choose our partners and may appoint additional partners at any time. The customer shall have no entitlement to exclusivity.

4. The customer is prohibited from registering intellectual property rights or domains that include "Turbofy" or any term confusingly similar thereto. Should such registration occur, we may demand the free transfer or deletion of such registrations at any time. If we grant permission to the customer in a specific instance, they are obligated upon termination of their partnership to transfer or delete these at our discretion without charge.

5. The customer is forbidden from engaging in or authorizing advertising that uses "Turbofy" as a keyword (particularly to prevent so-called brand bidding).

6. The responsibility to ensure that the use of "Turbofy® Partner" does not infringe upon third-party rights rests with the customer. They are obligated to conduct their own legal review. Upon request, we will inform the customer whether we are aware of any third-party claims of rights infringement.

21. Export and Import Regulations

1. The customer has been informed that the right to use Turbofy® may involve services subject to export and import restrictions, sanctions, or embargoes under applicable laws. Consequently, specific approvals may be required, or the use of Turbofy® and related technologies may be subject to restrictions.

2. For this reason, the customer shall comply with applicable export and import control regulations, particularly those of the Federal Republic of Germany, the European Union, and the United States of America, as well as all other relevant regulations, and shall monitor compliance in accordance with legal requirements. If the services of Turbofy® are prohibited from use by the customer, any of their users, or any third party who is permitted to receive services under the terms of this Agreement, according to export and import control regulations, the customer must refrain from or prevent such use. Similarly, the customer shall not grant any third party access to the services of Turbofy® in violation of export and import control regulations. The customer is required to promptly inform us of any such violation and, in the event of fault, indemnify us from all damages and third-party claims, including reasonable costs of legal review and defense, upon first demand.

3. Our performance under the contract concluded with the customer is conditional upon the absence of any national or international export and import law regulations, as well as any other legal provisions that may conflict with it.

22. Force majeure

1. Each party shall be temporarily released from its obligation to perform to the extent and for the duration that it is prevented from performing due to force majeure (the "Prevented Performance"). This shall also apply if the party is already in default. If a party claims occurrence of an act of force majeure, the other party shall also be temporarily released from the performance owed by it to that extent that such performance is the counter-performance of the prevented performance or such performance can only be performed based on or together with the prevented performance.

2. Force majeure shall be events within the meaning of Section 206 of the German Civil Code (BGB) as well as any other unusual and unforeseen event, if the party invoking the force majeure did not cause the event, could not expect the event to occur, could not influence its occurrence, could not prevent its consequence despite exercising due care, and is prevented from rendering performance for the event. This applies in particular to war, terrorism, riots, pandemics, severe weather, environmental disasters, cyber-attacks, or if the performance hindrance is otherwise due to government order resulting in a performance hindrance. Force majeure shall also include impediments to performance due to shortages of raw materials and/or government actions due to shortages of raw materials and resulting general disruptions to performance (including in supply chains).

3. The party invoking the existence of force majeure shall

   1. inform the other party without undue delay in text form about the fact, the reasons for it, and the effects;

   2. with the diligence of a prudent businessman, undertake the measures necessary to resume full performance of its obligations without undue delay, if possible;

   3. to make reasonable efforts to minimize, as far as possible, the negative impact on the performance of the agreement;

23. Applicable law and place of jurisdiction

1. The agreement shall be governed exclusively by the laws of the Federal Republic of Germany. International private law shall not apply, insofar as it is excludable.

2. The sole place of jurisdiction for all disputes in connection with this agreement shall be at our registered office.

3. For customers domiciled in the USA, the following arbitration agreement shall apply:

   1. All disputes arising out of or in connection with this agreement or concerning its validity shall be finally settled in accordance with the Rules of Arbitration of the German Institution of Arbitration (DIS), excluding the ordinary courts of law.

   2. The arbitral tribunal shall consist of one arbitrator.

   3. The language of the proceedings shall be German.

24. Final provisions

1. This agreement contains all stipulations of the parties regarding the subject matter of the agreement. Any deviating ancillary and earlier agreements on the subject matter of the agreement are declared invalid.

2. Amendments and supplements to this agreement must be made in writing unless a stricter form is required by law. This shall also apply to any waiver of the formal requirement.

3. The customer's general terms and conditions shall not apply to this agreement. This shall also apply if reference was made to their inclusion in later documents in connection with this agreement without objection.

4. If any provision of this agreement is or becomes void, invalid or unenforceable, in whole or in part, or if any provision necessary in itself is not included, the validity and enforceability of all remaining provisions of this agreement shall not be affected.