DDK MARKETING, INC. ONLINE MASTER SUBSCRIPTION AGREEMENT FOR ddk learn
THIS DDK MARKETING, INC. ONLINE SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN DDK MARKETING, INC., WITH BUSINESS OFFICES LOCATED AT 414 N. ORLEANS STREET, SUITE 310, CHICAGO, IL 60654 (“PROVIDER”), AND YOU (“SUBSCRIBER”). THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE OF ELECTRONIC ACCEPTANCE BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM (“ORDER FORM”) THAT REFERENCES THIS AGREEMENT (“EFFECTIVE DATE”). ANY REFERENCE TO PROVIDER SHALL ALSO INCLUDE PROVIDER’S AFFILIATES, AS DEFINED BELOW. EACH OF THE PROVIDER AND SUBSCRIBER IS A “PARTY” AND TOGETHER THEY ARE THE “PARTIES”.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
WHEREAS, Provider has developed and maintains a suite of Internet based services allowing subscribers to better market to their prospects and customers (the “Services”). These Services are provided by Provider under the trade name of ddk learn and are described in greater detail on Provider’s web site, http://jewelry.ddkmarketing.com (the “Site”). ddk learn is a subscription based application used to provide informative marketing content, sustainment learning questions, and gamified leaderboards.
WHEREAS, Subscriber wishes to utilize the Services provided through the Site in connection with Subscriber’s organization, and Provider has agreed to provide such Services pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, the Parties hereto, for good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, and intending to be legally bound, hereby agree as follows:
1) License Grant.
- License to Use Provider hereby grants to Subscriber a nonexclusive, nontransferable, license during the Term (the “License”) to access and use the Services in accordance with this Agreement. All rights not expressly granted to Subscriber under the License are reserved by Provider. The License granted to Subscriber pursuant to this Agreement will permit use of the Services by the number of Subscriber employees or agents (“End-users”) specified in the Order Form. If there are any conflicts between this Agreement and the details of the license in the Order Form, the details of the license in the Order Form shall prevail. Subscriber may increase the number of End-users during the Initial or Subsequent Terms (as defined in Section 9a) of this Agreement for an additional prorated fee at either the fee rate set forth in the Order Form or the then-current fee rate, to be determined by Provider in its sole discretion.
- Designated End-users. Each End-user will be designated as an End-user within Provider’s, ddk learn application. The License to use the Services by each End-user may not be shared or used by more than one individual, but may be re-issued from time to time to new End-users upon prior notification to and acceptance by Subscriber understands that the aforementioned restrictions are contractual in nature and that Provider reserves the right to review Subscriber’s actual license usage at any time throughout the Term to ensure compliance with the permitted license type and to adjust invoices as needed. Any unauthorized access to Services, or other abuse or impermissible activity on Provider’s ddk learn or in connection with Provider’s Services, may result in immediate suspension or termination of End-user accounts pursuant to Section 7 of this Agreement. Subscriber will promptly notify Provider of any unauthorized use of the Services in breach of this Agreement, any unauthorized use of accounts, or any other known or suspected breach of security.
- Limitations on The Services are for use only by Subscriber and its assigned End-users. Except as permitted by this Agreement, the Services may not be decompiled, reverse engineered, disassembled, transferred, distributed, resold, sublicensed, or used to create any derivative works. Subscribers may not use any network monitoring or discovery software to determine the Site’s or Service’s architecture, or extract information about usage or individual identities of users. Subscriber may not use any robot, spider, other automatic software or device, or manual process to monitor or copy the Site or Services. Subscriber may not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any non-End-user third party the Services in any way; (ii) modify or make derivative works based upon the Site or Services; (iii) “frame” or “mirror” any content on any other server or wireless or Internet-based device; (iv) develop applications for internal use or install additional applications that are designed to run on or be used in conjunction with the Services. Subscriber may use the Site and Services only for its business purposes and shall not; use the Services in association with sending spam or otherwise duplicative or unsolicited messages; use the Services in association with infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or material in violation of third party privacy rights; use or introduce material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; interfere with or disrupt the integrity or performance of the Site or Services; or attempt to gain unauthorized access to the Site, Services, or its related systems or networks.
2) Service Details.
- Provider, ddk learn. Provider offers an internet based application service that allows Subscribers using Provider’s, ddk learn in a manner that will allow Subscriber’s End-users to better collect customer data, train Subscribers and End-users in the use of the Application with the learn function, using gamivation incentives to reward the End-users who are more successful in their market place and that have demonstrated a greater understanding of the ddk lear content.
- Support During the term of this Agreement, Provider shall provide support services for the use of the ddk learn Application via e-mail at firstname.lastname@example.org or phone assistance Monday through Friday from 8:00 AM to 5:00 PM Central Time at (312) 638-3478
3) Fees and Payment.
- Subscription The total fee for the use of Provider’s ddk learn Application is based on the number of End-users. The subscription fees are described in detailed at (jewelry.ddkmarketing.com/ddk-learn).
- Additional End-users / Increase in The Subscriber may increase the number of End-users at any time during the subscription service by purchasing additional licenses through this website.
- Taxes and Provider’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state), local, or other taxes based solely on Provider’s income.
- Payment and Billing Subscriber agrees to provide Provider with complete and accurate billing and contact information at all times. This information includes Subscriber’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. All fees are payable in U.S. dollars. Payment for the use of its Services will be made with a valid credit card who’s information will be provided and validated during the initial sign-up process . If Subscriber believes any invoice is incorrect, Subscriber must contact Provider in writing within 90 days of the invoice date, of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Subscriber will pay the undisputed portion of the invoice, and Subscriber and Provider will cooperate to promptly resolve the invoice dispute.
4) Service Level Performance Criteria.
- Service Uptime, Downtime, and Provider shall provide to Subscriber 99.7% Application Uptime per month (scheduled maintenance or upgrades on the system will not count against uptime). “Uptime” is defined as time when the Services may be accessed and used by End-users. The determination of Service Uptime will be calculated using a historical monthly percentage. Provider shall provide Subscriber with at least forty-eight (48) hours’ notice of any scheduled maintenance on the Application and Provider will use commercially reasonable efforts to conduct maintenance during non-Business Hours only (as defined below). Should the Service not be accessible at least 99.7% of the month by most users in the aggregate (“Downtime”), Provider will credit to Subscriber any prepaid Subscription Fees at the prorated cost calculated as a percentage of monthly subscriptions divided by number of weekdays in the month multiplied by days of unavailability. Any credits due to Service Downtime shall be applied towards future Subscription Fees in the next month. Provider shall use good faith efforts to promptly notify Subscriber of any outages or Downtime that it anticipates or discovers during the Term of this Agreement.
- Specifically excluded from the definition of Downtime are:
- Network errors outside of the control of Provider or agents of Provider;
- Server errors and limitations set by third-party service
- Planned maintenance announced at least forty-eight (48) hours prior;
- Maintenance that is performed between 10 pm and 2 am CST;
- Outages resulting from the actions of Subscriber, its employees and agents other than through normal use of Application; and
- Any other unavailability caused by circumstances beyond Provider’s reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquake, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service
- . The Parties agree that, in order to continually improve its Application, Provider may, from time to time, amend its Application in its discretion and will make commercially reasonable efforts to notify Subscribers of said amendments via e-mail.
- Provider Proprietary The Application, Services, and its Contents (“ddk marketing IP”) are owned and licensed by Provider and protected by U.S. and international copyright, trademark, service mark, patent and/or other proprietary rights and laws. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring to Subscriber any license or right under any applicable intellectual property laws. No part of the ddk marketing IP may be altered, copied, photocopied, reproduced, translated or reduced to any electronic medium or machine-readable form, in whole or in part, except as specifically provided in this Agreement. Subscriber shall not take any action that shall interfere with or diminish Provider’s right in any of the ddk marketing IP.
7) Term, Suspension, and Termination.
- This Agreement shall commence upon the date of the initial sign-up for the use of the Application, for the 30 day free trial, and shall automatically renew on a monthly basis so long as Provider is providing the use of the Application pursuant to an executed Order Form. Unless this Agreement is terminated earlier pursuant to this Section 7, the term (“Term”) for the provision of Services shall be set forth in the applicable Order Form. The Term shall thereafter automatically continue monthly, for successive monthly periods, unless Provider provides Subscriber at least a thirty-day (30) written notice of termination prior to the start of the next monthly period or the Subscriber opts out of use of the Application as noted in Section 3, subsection (a). The month to month subscription shall be known as the “Term”.
- Suspension and Provider reserves the right to suspend access to its Application if Subscriber’s credit card payment of Subscription Fees cannot be successfully processed by the beginning of the monthly Term to which the payment applies. In no case will Provider be liable to Subscriber for any refund or damages arising out of a suspension and, if applicable, subsequent termination. Either Party may terminate the Agreement for the reasons set forth below:
- Material If a Party materially breaches this Agreement, the other Party may terminate the Agreement for cause by delivering a termination notice to the breaching Party (a) describing the breach and (b) stating the non-breaching Party’s intention to terminate the Agreement if the breaching Party has not remedied the breach within thirty (30) days after receipt of such termination notice (the “Cure Period”). In the event that the breaching Party does not cure such breach within the Cure Period, such termination notice shall terminate the Agreement as of the last day of the Cure Period or such later termination date specified in such termination notice.
- Indemnifiable Either Party may terminate this Agreement for cause (without opportunity to cure) by delivering a termination notice to the other Party if the other Party fails to undertake its obligations relating to Losses under Section 11 (Indemnification) of this Agreement within 90 days following notification of a claim against the terminating Party.
- Either Party may terminate the Agreement for cause (without opportunity to cure) by delivering a termination notice to the other Party if (a) the other Party is subject to a change in control in favor of a direct competitor of the terminating Party or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
- Remedies Not The remedies provided in this Section 7 are in no way limiting of one another or of any other rights and remedies granted to Provider under this Agreement. Provider may choose to, but is not required to, place Subscriber’s use of the Application on suspension in lieu of termination where termination is permitted under the terms of this Agreement or take other appropriate action.
8) Representations and Warranties.
- Each Party represents, warrants, and covenants, as applicable, to the other Party that: (i) It has all right, title, and authority to enter into this Agreement; and (ii) Its execution of this Agreement and its engagement hereunder do not constitute a breach of any contract, agreement or understanding, oral or written, to which it is a party or by which it is bound.
- Performance During the Term of this Agreement: (i) the Application shall function properly in conformity with the warranties herein and in accordance with this Agreement; and (ii) the Applications commentaries and text shall completely and accurately reflect the operation of the Application.
- (i) All updates shall, at a minimum, be consistent with then-existing and released industry standards; (ii) no update will materially degrade the functionality, capabilities, or features of the Application at the time of release of such update
- Disclaimer of Provider will make commercially reasonable efforts to ensure a virus free environment, a reliable operational schedule and to provide timely correction of content known to be inaccurate. Unless otherwise stated in Sections 4 (Service Level Performance Criteria) and 8 (Representations and Warranties), The Application provided is on an “as is” and “as available” basis, and, unless otherwise stated in this Agreement, Provider expressly disclaims all warranties, including the warranties of merchantability, and fitness for a particular purpose and non-infringement. Provider disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of or any way related to (a) any errors in or omissions from the Application; (b) the unavailability of this Application, or any portion thereof; (c) Subscriber’s use of this Application; (d) Subscriber’s use of any equipment or software in connection with the Application.
- Limitation of
- THE LIABILITY OF PROVIDER AND SUBSCRIBER TO EACH OTHER FOR ANY AND ALL CAUSE(S) OF ACTION, REGARDLESS OF THE FORM OF ACTION (INCLUDING CONTRACT, TORT, NEGLIGENCE OR ANY OTHER), ARISING OUT OF OR RESULTING FROM THE PERFORMANCE OR BREACH OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT PAID BY SUBSCRIBER TO PROVIDER UNDER THIS AGREEMENT FOR THE APPLICABLE SERVICES IN THE PAST 12 MONTHS PRIOR TO THE EVENT RESULTING IN THE
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, OR DAMAGES FROM LOST PROFITS, LOST USE, OR ANY OTHER DAMAGES OF ANY KIND WHATSOEVER IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THIS APPLICATION OR SERVICES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
- NOTWITHSTANDING THE FOREGOING, SECTION 11a and SECTION 11b WILL NOT APPLY TO (I) CLAIMS FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR CRIMINAL ACTS OR OMISSIONS, (II) BREACH OF CONFIDENTIALITY, (III) ANY THIRD-PARTY CLAIMS SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THIS
- Subscriber agrees to indemnify, defend and hold harmless Provider, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Application from and against all claims, losses, expenses, damages and costs, including reasonable attorneys’ fees (collectively, “Losses”), resulting from or in connection with: (i) any breach of any obligation of Subscriber under Section 12 (Confidential Information); (ii) any breach by Subscriber of any of its warranties and representations under Section 8(a) (Representations and Warranties); (iii) violation of any applicable laws by Subscriber, its officers, directors, employees, agents, contractors, or affiliates (“Subscriber Responsible Parties”); or (iv) any misuse, loss, damage, corruption, or destruction of the Application by Subscriber Responsible Parties or any breach of security relating to the
- Provider agrees to indemnify, defend and hold harmless Subscriber, its officers, directors, and employees from and against all Losses resulting from or in connection with: (i) any breach of any obligation of Provider under Section 11 (Confidential Information); (ii) any breach by Provider of any of its warranties and representations under Section 12 (Representations and Warranties); (iii) violation of any applicable laws by Provider, its officers, directors, or employees (“Provider Responsible Parties”); (iv) any loss, damage, corruption, or destruction of the Application by Provider Responsible Parties or any breach of security relating to the same; or (v) any infringement of intellectual property rights of any third party; provided, however, that Provider is not liable for any Losses arising under this Subsection 12(b) to the extent that Subscriber modified the ddk marketing IP, unless such modifications were approved by Provider, or the Losses are based on a use for which the applicable ddk marketing IP was not
- Indemnification under subsections (a) and (b) hereof will be provided only on the conditions that: (i) the indemnifying Party is given written notice within fifteen (15) calendar days after the indemnified Party receives notice of the subject Action; (ii) the indemnifying Party has sole control of the defense and all related settlement negotiations, provided any settlement that would impose any monetary or injunctive obligation upon the indemnified Party shall be subject to such Party’s prior written approval and unconditionally releases the indemnified Party of all liability; and (iii) the indemnified Party provides cooperation and information in furtherance of such defense, as reasonably required by the indemnifying Party at the indemnifying Party’s The indemnifying Party shall not be relieved of its indemnification obligations herein for the indemnified Party’s failure to comply with such requirements, except to the extent that the indemnifying Party has been prejudiced by the indemnified Party’s actions or inactions.
12) Receipt of Confidential Information.
- Confide Each Party agrees to maintain the confidentiality of the other Party’s Confidential Information as defined herein. “Confidential Information” means all information concerning a Party’s business not generally known to the public, whether or not marked as confidential. By way of illustration only, Confidential Information may include this Agreement, trade secrets, know-how, inventions, contractual disclosures, techniques, processes, algorithms, software programs, schematics, software source documents, contracts, customer lists, financial information, sales and marketing plans, information and business plans and other proprietary information, whether or not such information is marked as confidential. Confidential Information shall not include, even if it is marked as such, information that: (i) is already known to the receiving Party at the time of disclosure, which knowledge the receiving Party shall have the burden of proving; (ii) is, or, through no act or failure to act of the receiving Party, becomes publicly known; (iii) is readily observable and /or duplicable by the public; (iv) is legally received by receiving Party from a third party without restriction on disclosure; (v) is independently developed by receiving Party without reference to the Confidential Information of the disclosing Party; or (vi) is approved for release by written authorization of the disclosing Party. In maintaining the confidentiality of the other Party’s Confidential Information, each Party shall use at least the same standard that Party uses for its own confidential information of similar type, and shall take necessary precautions not to disclose such information to any person except its officers, employees or subcontractors, who have a need to know in order to comply with the obligations of this Agreement. Each Party’s officers, employees, and subcontractors shall be bound by the terms of this Section or a similar written agreement with terms no less protective of either Party’s Confidential Information than this Agreement. Each Party acknowledges that any actual or threatened violation of this Section may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing Party shall be entitled to seek injunctive relief in addition to all other remedies available at law and/or in equity. Nothing in this Section shall prohibit Provider from disseminating aggregated information that contains no identifiable Subscriber Confidential Information.
- Destruction and Return of Confidential Upon written request of the disclosing Party, all materials containing Confidential Information in the receiving Party’s possession will be destroyed or returned to the disclosing Party and the receiving Party will retain no copies or reproductions of the Confidential Information unless required by law, except the receiving Party may retain one record copy, subject to the reasonable instructions of the disclosing Party with respect to such copy.
- In the event of any unauthorized use or disclosure or loss of any Confidential Information of the disclosing Party, the receiving Party shall promptly, at its own expense: (i) notify the disclosing Party in writing; (ii) take such actions as may be necessary or reasonably requested by the disclosing Party to minimize the violation or the damage resulting therefrom; and (iii) cooperate in all reasonable respects with the disclosing Party to minimize the violation and any damage resulting therefrom.
- Notwithstanding the provisions of this Section, Provider may disclose Subscriber’s Confidential Information, which includes personally identifying information and End-user activity: (i) in accordance with a judicial or other governmental subpoena, warrant or order; provided that Provider shall comply with any applicable protective order or equivalent and, unless prohibited by law, Provider will employ commercially reasonable efforts to provide Subscriber with prior written notice, so that Subscriber has an opportunity to intervene at its own expense and to protect the confidentiality of its information; (ii) to law enforcement officials and regulators if it reasonably suspects unlawful activity; and (iii) to other Parties that are identified by Subscriber for that purpose.
- No Intellectual THE RECEIVING PARTY ACQUIRES NO INTELLECTUAL PROPERTY RIGHTS FROM THE DISCLOSING PARTY UNDER THIS AGREEMENT, except for the restricted right to use disclosing Party’s Confidential Information for the express, limited purposes described above.
13) Additional Miscellaneous Provisions.
- Governing Law; Jurisdiction; Venue; Attorney’s Governing Law; Jurisdiction; Venue; Attorney’s Fees. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Illinois, except for that body of law addressing conflicts of law. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. In any action to interpret or enforce this Agreement, the prevailing Party shall be awarded all court costs and reasonable attorneys’ fees it incurs. The venue for any arbitration shall be in Chicago, Illinois. Class action lawsuits, class wide arbitrations, private attorney-general actions, and any other proceeding where someone acts in a representative capacity are not allowed. The Parties waive any defense of forum non-conveniens. The Parties waive all rights to jury trials.
- Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign the Agreement, together with all rights and obligations under the Agreement, without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party (if a public company, as set forth in the other Party’s then-most recent 10-K filing). Any attempted assignment, delegation, or assumption of this Agreement not in accordance with this Section will be void and of no effect. Provider retains the right to terminate this Agreement immediately in the event of any breach by Licensee of this Section.
- Survival/Severability of Terms. The provisions of Sections 6 (ddk Marketing, Inc. Proprietary Information), 7d (Remedies Not Limiting), 8 (Representations and Warranties), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Receipt of Confidential Information), and 13 (Additional Miscellaneous Provisions), this “Survival” provision, shall survive termination of this Agreement regardless of the manner in which this Agreement was If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
- The English language version of this Agreement is the controlling version thereof. All support and other inquiries regarding Subscriber’s use of any Provider Services must be submitted to Provider in English, and Provider will communicate in English only.
- Subscriber is responsible for compliance with all import and export regulations (including documentation requirements of any authority); compliance with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries. Subscriber acknowledges that the Services may be subject to export restrictions imposed by the United States government and governments of any of the other countries in which Provider operates. Subscriber will comply with, and fully co-operate with Provider in relation to these restrictions.
- Notices and Contact Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either (i) hand-delivered to the addressee; or (ii) deposited in the mail (registered or certified) or delivered to a private express company. Notices must be addressed as follows: (A) if to Provider, at the mailing address in the preamble of this Agreement or by email to email@example.com or (B) if to Subscriber, at the mailing address or email set forth in the Order Form. Email notice shall only be effective upon confirmation of receipt by the receiving Party. Either Party may change its notice address by providing the other Party with notice of the change.
- This Agreement may be modified only in writing, signed by a duly authorized representative of each Party.
- Relationship of the Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, or employment relationship between the Parties, and neither Party shall have any right to bind the other or incur any obligation on the other’s behalf without the other’s prior written consent. Except as expressly provided for herein, this Agreement is not for the benefit of any third party, but nothing in this Agreement shall prevent or interfere with any consumer bringing an action against Subscriber for violation of law.
- Entire Agreement; This Agreement and the Exhibits hereto constitute the entire agreement between the Parties as to the subject matter hereof, and supersede all prior and/or contemporaneous agreements, representations, and understandings between them, whether orally or in writing, except as may be expressly incorporated by reference into this Agreement. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Parties.