Effective on March 18, 2021
Welcome to 23blocks Corp. ("23blocks", "we", "our" or "us"). This Services Agreement contains the legal terms and conditions governing the use of any of the services, including the Software, hosting, cloud computing services, and access to www.23blocks.com, or any related or local sites (the "Site") and our Agents, Software, Documentation, Forums, and Content (all as defined below, together), the "Services." Please review these Terms of Service carefully before using our Services. Since this is a binding legal agreement between you and 23blocks Corp., please print a copy for your records.
THIS SERVICES AGREEMENT (the "Agreement") is entered into and effective as of the day you "AGREE" (the "Effective Date") by and between 23blocks Corp. ("23blocks") and you or the company or entity you represent ("Client" or "You"). You may not access the Services if You are Our direct competitor, except with Our prior written consent.
PLEASE SCROLL DOWN AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CLICKING "AGREE" OR SIMILAR BUTTON OR INSTALLING OR USING THE SERVICES (DEFINED BELOW). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND 23BLOCKS AND SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SERVICES. BY CLICKING AN "AGREE" OR SIMILAR BUTTON OR BY USING THE SERVICES, YOU ACCEPT AND ABIDE BY THESE TERMS AND CONDITIONS AS PRESENTED TO YOU. 23BLOCKS MAY UPDATE THESE TERMS AND CONDITIONS FROM TIME TO TIME; YOUR CONTINUED USE OF THE SERVICES CONSTITUTE YOUR ACCEPTANCE OF THE UPDATED TERMS AND CONDITIONS. ANY OTHER CHANGES, ADDITIONS, OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY 23BLOCKS AND WILL NOT BE PART OF THIS AGREEMENT.
1. Distribution of ServicesSubject to the terms and conditions, 23blocks will provide specific services (the "Services") and user documentation ("Documentation") to Customer and to particular persons or entities that are authorized to use the Services ("Authorized Users").
23blocks resulting from this grants Customer a limited, non-exclusive, non-transferable, and non-sublicensable right and license to access and use the Services and Documentation for the Term (defined below) subject to the terms and conditions of this agreement. For the avoidance of doubt, any installation guide or end-user Documentation is not prepared or provided by 23blocks; any online community site, feedback, or other online or informal forums does not constitute Documentation.
2. Services Evaluation AgreementSuppose the Services and Documentation are provided to the Client for evaluation purposes. In that case, 23blocks grants a nonexclusive, limited, royalty-free, non-transferable evaluation license to use the Services solely for evaluation before purchase ("Evaluation License"). The Evaluation License shall terminate on the pre-determined evaluation period or immediately upon notice from 23blocks, at its sole discretion. Notwithstanding any other provision contained herein, Services provided under an Evaluation License are provided to Client "AS IS" without indemnification, support, or warranty of any kind, express or implied.
Except to the extent such terms conflict with the specific evaluation terms outlined in this Section, all other terms of this Services Agreement shall apply to the Services under an Evaluation License.
3. Client's Obligations; License RestrictionsClient will:
(i) be responsible for its and its Authorized Users' compliance with this agreement;
(ii) be solely responsible for the accuracy, quality, integrity, and legality of Client Data (defined below) and means relating to the acquisition of the Client Data;
(iii) not provide, make available to, or permit other individuals to use or access the Services, except under the terms listed herein, and that Client will be responsible for any unauthorized activity of the Services;
(iv) not to sell, resell, rent or lease the Services without prior authorization from 23blocks;
(v) not modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Services;
(vi) not remove any proprietary notices or labels on the Services;
(vii) not license the Services if Client (or any of its Authorized Users) is a direct competitor of 23blocks or its affiliated entities to monitor the Software Service's availability, performance, or functionality or for any other benchmarking or competitive purposes;
(viii) not use the Services to store or transmit infringing, defamatory, unlawful, or tortious material or to store or transmit material in violation of third party privacy rights;
(ix) not use the Services to store or share malicious code; or
(x) not interfere with or disrupt the integrity or performance of the Services.
4. Expenses & PaymentAll orders placed will be considered final. Fees will be due and payable as set forth on the web site or otherwise conveyed to you during the order process. Costs for any Renewal Term shall be at 23blocks's then-standard rates, currently in effect, or if applicable, as otherwise set forth on the web site or otherwise conveyed to you by 23blocks.
Suppose the Client fails to pay by the payment terms. In that case, 23blocks shall be entitled, at its sole discretion, (i) to suspend the provision of the Services temporarily until Client fulfills its pending obligations or (ii) to terminate this agreement for breach. Unless otherwise stated, all payments made under this agreement shall be in United States dollars. Except as otherwise expressly provided herein, fees are non-refundable.
5. Upgrading Your AccountThe Client may, at any time during the Term, upgrade to a different 23blocks account type. The change in account type will take effect immediately.
After an upgrade in account type, the Client will be billed directly for the additional fees due under the upgraded account type for the applicable Term's remaining time. The amount due and the upgraded account type will be reduced by the amount the Client has already paid for the relevant Term if it is a yearly license. Regarding an upgraded account type that will be renewed monthly, the Client will be billed the upgraded account type at the Renewal Term's commencement.
6. Policy For Automatic RenewalSUPPOSE A CUSTOMER'S ACCOUNT IS SET TO RENEW ON THE ANNIVERSARY DATE, THE DATE OF THE START OF THE 23BLOCKS MONITORING. IN THIS CASE, 23BLOCKS MAY AUTOMATICALLY CHARGE SAID CUSTOMER AT THE END OF THE TERM FOR THE RENEWAL FOR ADDITIONAL PERIODS EQUAL TO THE CURRENT SERVICES AND THE TERM THAT EXPIRES. UNLESS ANY OF THE PARTIES GIVES A NOTICE OF NON-RENEWAL AT LEAST THIRTY (30) DAYS BEFORE THE EXPIRATION OF THE THEN EFFECTIVE AGREEMENT. THIS NON-RENEWAL WRITTEN NOTICE MUST BE ACCEPTED AND ACKNOWLEDGED BY 23BLOCKS IN WRITING.
23blocks reserves the right to increase the rates for said renewal period at the discretion of 23blocks without prior notice to said, Client. Any rate increase must not exceed more than ten (10%) per unit increase in the rate level for the relevant Service in the immediately preceding Term unless the rates in said the last Term included a discount, multi-annual, single, or promotional price.
7. TaxesThe fees are exclusive of taxes, and the Client shall pay or reimburse 23blocks for all taxes arising out of transactions contemplated by this agreement. If Client is required to withhold any tax for payments due under this Agreement, Client shall gross its payments to 23blocks so that 23blocks receives sums due in full and free of any deductions.
The Client will provide Documentation to 23blocks, showing that taxes have been paid to the relevant taxing authority. "Taxes" means any sales, VAT, use, and other taxes (other than taxes on 23blocks' income), export and import fees, customs duties, and similar charges imposed by any government or other authority.
The Client confirms that 23blocks may rely on the Client's name and address when accepting the Services' rates as a supply for sales tax, income tax, or collection for VAT purposes.
8. Term & Termination Agreement and Fair Use PolicyUnless previously terminated, this agreement will commence on the Effective Date. It will continue until the end of the period specified in the applicable quotation or order form for the Services (the "Initial Service Period").
This agreement will automatically renew for additional terms of the same duration as the Initial Service Term (each, a "Renewal Term," along with the Initial Service Term, the "Term") unless either party request termination at least thirty (30) days before the end of the Term in force at that time.
At any time, either party may terminate this agreement with thirty (30) days' written notice and before a material breach by the other party; If said breach remains uncorrected at the expiration of said thirty (30) day period, either party may terminate it immediately. Suppose the other party is subject to bankruptcy or any other procedure related to insolvency, judicial administration, liquidation, or assignment for creditors' benefit after showing proof of this. If the Client infringes or misappropriates the intellectual property of 23blocks, or violates the license restrictions or the confidentiality provision established in this document.
Termination shall not relieve Client of the obligation to pay any fees or other amounts accrued or payable to 23blocks before the effective date of termination.
23BLOCKS WILL HAVE THE ABSOLUTE AND UNILATERAL RIGHT TO DENY USE OR ACCESS TO ALL OR ANY PART OF THEM, TO USERS CONSIDERED TO BE USING THE PRODUCTS OR SERVICES IN AN UNINTENDED WAY OR VIOLATION OF THE LAW. THE PREVIOUS INCLUDES NOT LIMITED TO SUSPENDING OR TERMINATING A USER'S ACCOUNT WITH 23BLOCKS AND THE LICENSE TO USE THE PRODUCTS OR SERVICES.
23blocks Products or Services are designed to serve the needs of particular types of users, such as small to medium-sized enterprises.
Suppose you have purchased a 23blocks Product or Service that is inappropriate for your actual usage. In that case, 23blocks may ask you to switch to a more appropriate Product or Service, resulting in you having to pay additional fees to 23blocks for using the correct product or cancel your purchased Products or Services. 23blocks may refund, on a pro-rata basis, any paid fees that may have been settled on the unused portion of your subscription, provided the most recent license renewal or original license purchase was made at least 30 days prior.
23blocks may, in its sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of 23blocks Products or Services and prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources, CPU, illegal content hosting, or monitoring infrastructure that activates our virus scanner and takes technical and other resources that we consider appropriate. Your consumption of 23blocks Products or Services may be deemed excessive if, within any month, your usage significantly exceeds the average level of monthly use of 23blocks' customers, generally.
Suppose you are considered to have violated this policy. In that case, we reserve the right to offer an alternative pricing plan or 23blocks Product or Service that will permit you to continue to use 23blocks Products or Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to Use 23blocks Products or Services and any license to use the 23blocks Software without prior notice in the event of a violation of this policy.
Suppose 23blocks believes that you are breached our Fair Use Policy and have not switched to a Business Service. In that case, 23blocks will allow the user fifty (15) days from the first communication date to retrieve theirs before deleting the user's account and data. 1st notice will be sent fifty (15) days before account deletion, 2nd notice will be sent seven (7) days before account deletion, and the 3rd final notice will be sent two (2) days before account deletion. All communications will be sent to the email address attached to the user's account.
9. Customer Data23blocks agrees that the data and information uploaded by Client (or Authorized Users of Client) that is stored or processed via the Services (the "Client Data") shall be treated as confidential by 23blocks and shall remain Client's sole property.
Client agrees that it is responsible for maintaining and protecting all Client Data directly or indirectly processed using the Services. 23blocks is not responsible for the failure to store, the loss, or Client Data corruption. Client agrees that 23blocks and its affiliated entities will collect and track technical and related information about Client and Client's use of the Services. That includes the Client's internet protocol address, hardware, Software that the Client utilizes, and various usage statistics.
All previous, to assist with the necessary operation and function of the Services and for internal purposes only, including without limitation to facilitate the provision of updates, support, invoicing, marketing by 23blocks, its affiliated entities, or its agent's research and development.
Suppose that 23blocks is required to disclose Customer Data under a court order or other legal obligation. In that case, 23blocks will take all commercially reasonable measures to provide the Client with immediate notice, to allow the Client to take all the steps it can to oppose such mandatory disclosure if they so desire.
10. Tech SupportTechnical support is only provided to users of Commercial Services based on your specific purchased Service. Customers can buy additional help if this is necessary.
If you are using the Service via a Free account, 23blocks provides support via email or other channels to 23blocks installation guides and other Service documentation.
11. Confidential Information AgreementAs used in this agreement, "Confidential Information" means any information (other than Client Data) disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects:
(i) that the disclosing party identifies as confidential or proprietary or
(ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself.
Personal information may also include confidential or proprietary information disclosed to a disclosing party by a third party or all technical and non-technical information being informed by one party to the other party other than Client Data (including but not limited to product information, plans and pricing, financials, marketing plans, business strategies, customer information, data, research and development, Software and hardware, APIs, specifications, designs, proprietary formulas, and proprietary algorithms).
The receiving party will:
(a) hold the disclosing party's Confidential Information in confidence;
(b) restrict disclosure of confidential information to employees/agents who need to know. Said employees/agents might be subject (for example, as a condition of their relationship with the company) by obligations that respect the protection of confidential information, similar to those in this agreement and that would extend to the Confidential Information of the disclosing party;
(c) use such Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein; and
(d) to the extent applicable, not modify, reverse engineer, decompile, create other works from, or disassemble any such Confidential Information, unless expressly permitted by applicable law without the possibility of contractual waiver or otherwise specified in writing by the disclosing party.
(a) it was in the public domain at the time of disclosure;
(b) became publicly available after exposure to the receiving party without breach of this agreement;
(c) the receiving party lawfully received it from a third party without such restrictions;
(d) the receiving party or agents knew it without such restrictions before its receipt by the revealing party;
(e) the receiving party independently developed it without breach of this agreement;
(f) it was generally made available to third parties by the disclosing party without such restriction; or
(g) the receiving party is required to be disclosed under a judicial order or another compulsion of law provided that the receiving party will deliver to the disclosing party prompt notice of such demand and comply with any protective order imposed on such disclosure.
The parties agree that any material breach of this Section will cause irreparable injury. That injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing violation of these Sections in addition to any other relief to the relevant party may be entitled.
12. Usage RightsThe Services are licensed, not sold. Use herein of the word "purchase" in conjunction with the Services licenses shall not imply a transfer of ownership. Except for the limited rights expressly granted by 23blocks, the Client acknowledges and agrees that all titles, copyrights, trademarks, patents, intellectual property, and other proprietary matters related to the Services belong exclusively to 23blocks.
As a result of this, 23blocks obtains a fully paid, worldwide, exclusive, transferable, irrevocable, and perpetual license to use or incorporate services into its products. Any information, data, suggestions, requests for improvement, recommendations, or other comments provided by the Client or its Authorized Users about the Services. Besides, 23blocks reserves all rights not expressly granted under this agreement.
Customer acknowledges and agrees that all Intellectual Property Rights in and to the Software and Professional Services are owned by 23blocks and shall, notwithstanding the terms of this Agreement, remain vested in 23blocks. Unless otherwise expressly provided in this Agreement, the Customer shall not acquire any proprietary right, title, or interest in any Intellectual Property Rights in the Software. Neither Customer will not be given access to the source code of the 23blocks Platform. All rights not expressly granted by 23blocks herein are reserved.
13. Warranties23blocks guarantees the Client that during the thirty (30) days after the Services until the Client's initial purchase. The Services will operate substantially following the Published Documentation. 23blocks does not warrant that the Services meet all of the Client's requirements or that use of the Services will be uninterrupted, secure, or error-free. To the maximum extent permitted under applicable law, as 23blocks's and its suppliers' entire liability, and as Client's sole and exclusive remedy for a breach of the previous warranty, 23blocks will, at its only option and expense, promptly repair the Services.
Each party warrants that:
(i) it has the necessary corporate power and authority to enter into and perform this agreement;
(ii) does not and will not conflict with any other agreement or understanding to which such party is a party or by which it is bound, and
(iii) the person is signing this agreement on such party's behalf has been duly authorized and empowered to enter into this agreement.
14. DISCLAIMERTHE SERVICES AND ALL OTHER PRODUCTS AND SERVICES, INCLUDING THIRD-PARTY HOSTING SERVICES, PROVIDED HEREUNDER ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY OUTLINED IN SECTION 09, 23BLOCKS RESULTING FROM THIS DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 23BLOCKS SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES AS, TO THE CONDITION, VALUE, OR QUALITIES OF ANY SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER. INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED, NON-INFRINGING OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. 23BLOCKS ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SERVICES WITH WHICH CLIENT MAY UTILIZE THE SERVICES. CLIENT SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS CLIENT MAY HAVE AGAINST 23BLOCKS CONCERNING SUCH THIRD PARTY PRODUCTS AND SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15. LIMITATION OF LIABILITYTO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL 23BLOCKS OR ITS AFFILIATED ENTITIES HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE ENTIRE AGGREGATE LIABILITY OF 23BLOCKS AND ITS AFFILIATED ENTITIES AND THE SOLE REMEDY AVAILABLE TO THE CLIENT IN ANY CASE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND MONETARY DAMAGES THAT IN THE AGGREGATE MAY NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAYABLE OR PAID TO 23BLOCKS BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO ITS TERMINATION.
16. Intellectual Property and Client Indemnification23blocks will indemnify and hold the Client harmless from any third party claim brought against the Client for the Services, as provided by 23blocks to the Client under this agreement.
The preceding, used or distributed within the scope of this agreement, infringes or misappropriates any patent, copyright, trademark, secret trade, or other intellectual property rights of a third party, provided that:
(i) use of the Services by Client conforms with the Agreement and Documentation;
(ii) the infringement is not caused by modification or alteration of the Services or Documentation, or
(iii) the violation was not caused by a combination or use of the Services with products not supplied by 23blocks.
23blocks indemnification obligations are contingent upon Client:
(i) promptly notifying 23blocks in writing of the claim;
(ii) granting 23blocks sole control of the selection of counsel, defense, and settlement of the request; and
(iii) providing 23blocks with reasonable assistance, information, and authority required for the claim's protection and compensation. This Section states 23blocks' entire liability (and shall be Client's sole and exclusive remedy) concerning Client's indemnification.
- Relationship of the Parties. The parties are independent contractors. This agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Nothing in this Agreement makes an exclusive relationship or in any way prevents 23blocks from entering into similar arrangements with or providing similar services to other entities, including, without limitation, other similar customers.
The Client understands and acknowledges that 23blocks is free to use the data, information, techniques, methodologies, forms, designs, or results of any of the products or services provided by 23blocks. Nothing in this Agreement shall be construed as a limitation of the right of 23blocks to do so.
- Third-Party Services. Suppose the Client uses any third-party service with the Services (including services that may utilize any application programming interface (API) provided by 23blocks). In that case, the Client acknowledges that the third party service may access or use the Customer's Information.
23blocks will not be responsible for any act or omission of the third party, including such third party's use of the Customer's Information. The Client agrees to contact the third-party service provider for any issues arising from the Client's use of the third party service.
- Compliance with Applicable Laws. The Services are protected by intellectual property laws and the other USA and international laws and treaties, including intellectual property and export laws.
The Client agrees to use the Services and comply with all obligations under this agreement, including the application and the Published Documentation, including but not limited to any contracts, rights, and legal or common-law obligations applicable restrictions concerning intellectual property rights.
The Services provided to Client hereunder may be subject to USA control laws and regulations and may also be subject to other applicable import and export laws.
The Client agrees that it shall abide by all applicable export control laws, rules, and regulations applicable to its use of the Services.
- Software Updates. (i.e., minor enhancements, additions, and substitutions to Software, including corrections and bug fixes) are provided from time to time and at the discretion of 23blocks at no cost for as long as the Licensee account shall remain in good standing. Installing, updating, or uninstalling 23blocks software versions will never compromise or affect processed data or compromise the configuration of 23blocks Software, unless 23blocks data files, resource files, or data directories shall be manually removed or altered by another third party system or process. The determination of whether a matter involves an Update is within the sole discretion of 23blocks.
- Software Upgrades. (i.e., modifications, additions, or substitutions that result in a substantial change, improvement, or addition to Software), if available, are provided for an additional fee. 23blocks will make every effort to notify the Customer of available upgrades, and the Client has absolute discretion in the decision to acquire them or not. In case of rejection by the Client of an upgrade necessary for the correct operation of the Client's system or process, the Client will be notified and will have the responsibility of not executing it.
All Updates and Upgrades obtained by the Customer are subject to this Agreement.
- Entire Agreement. This agreement constitutes the final, complete, and exclusive agreement among the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether in written, oral, electronic, or another form, relating to the subject matter hereof. Notwithstanding the preceding, the Client acknowledges and accepts that the policies published by 23blocks, available at "https://23blocks.com/company-policies/" may be modified from time to time.
- Waiver. No failure or delay by either party in exercising any right under this agreement shall constitute a waiver of that right. The release of any breach or provision of this agreement will not be deemed a waiver of any different or subsequent breach.
- Governing Law; Venue. This agreement is governed by and will be construed using USA law, without giving effect to conflict of law provisions or constructive presumptions favoring either party. All actions arising out of or related to this agreement will be heard and determined exclusively by the USA's courts. The parties, due to this consent, waive any objection related to said jurisdiction and place.
- Severability. The provisions of this agreement are severable. Suppose any provision or portion thereof is found by any court to be invalid or otherwise unenforceable. In that case, the remainder of this agreement will not be affected. The parties consent to such court's substitution of a valid and enforceable term that approximates the intent and effect of such invalid or unenforceable provision portion.