Terms and Conditions
Revised: December 16, 2021
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY EXECUTING AN ORDER FORM OR OTHERWISE ACCESSING OR USING THE SYSTEM, CLIENT AGREES TO BE BOUND BY THIS AGREEMENT. IF CLIENT DOES NOT AGREE WITH THIS AGREEMENT, CLIENT MAY NOT ACCESS OR USE THE SYSTEM.
1. Definitions
(a) “Admin User” means any Client employee or on-site contractor designated by Client to have administrative access to the System on behalf of Client.(b) “Aggregate Data” means Client Data (as defined in Section 6(a)) that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used identify Client as the source of such data.
(c) “Client Facilities” means Credentials and any account, hardware, system or other facility within the custody or control of Client.
(d) “Credentials” means any user accounts, passwords and other authentication credentials associated with use of the System by Client.
(e) “Emergency Security Issue” means any: (i) use of the System by Client in violation of the terms and conditions of this Agreement that disrupts or is reasonably likely to disrupt the availability of the System to other users or cause significant harm to the Hardware; or (ii) access to the System by any unauthorized third party through use of any Client Facilities.
(f) “Hardware” means the physical equipment and related materials provided to Client as part of the System.
(g) “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
(h) “Professional Services” means any integration, training, support or other professional services to be provided by Virdee as specified in the Order Form.
(i) “Site(s)” means the Client properties who are authorized to used the System, as set forth in the Order Form.
(j) “System” means the Hardware and/or Software provided by Virdee pursuant to this Agreement.
(k) “Software” means the executable computer programs (including firmware and other embedded software within the Hardware and any online platform operated by Virdee to which the Hardware connects) and any related printed, electronic and online documentation any other files that may accompany the System.
2. Grant of Rights and Restrictions
(a) Grant of Rights. During the term of this Agreement and subject to and conditioned upon Client’s compliance in all material respects with the terms and conditions of this Agreement (including any limitations on use set forth in the Order Form), Virdee hereby grants Client a limited, non-exclusive, non-sublicensable right to access and use the System in connection with the Site(s0 only in the form made available by Virdee. The Site(s) and specific Hardware and/or Software Virdee will provide to Client for access and use under this Agreement are listed on the Order Form.(b) Restrictions. Except as expressly permitted under this Agreement, Client shall not itself, nor shall it permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon the System; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the System; (iii) access the System for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the System; (v) rent, lease, lend, sell or sublicense the System or otherwise provide access to the System to anyone who is not associated with the Site(s) or an employee or contractor of Client; or (vi) use the System in any way that does not comply with all applicable laws and regulations.
(c) Compliance Monitoring. Client acknowledges and agrees that the System may include features that allow Virdee to monitor use of the System to confirm that such use complies with this Agreement. Such features may further permit Virdee to disable use of the System remotely.
(d) Changes. Virdee may improve, modify, add or remove functions or features to or from the System from time to time, with or without notice to Client.
3. Professional Services
(a) Professional Services. Virdee shall provide Customer with the Professional Services set forth in the Order Form.(b) Client Technical Specifications. Client shall supply Virdee all information and inputs reasonably necessary for Virdee to provide the Professional Services and System to Client (“Client Technical Specifications”), which may include information, documents, equipment, services, access, facilities and support regarding Client’s systems. In the event Client fails to provide the Client Technical Specifications, Client will reimburse Virdee for additional costs incurred due to such failure.
(c) Disclaimer. Virdee expressly disclaims, and Client releases and Virdee from, any and all liability for damage or impact to the Site(s) incurred in connection with the Professional Services.
4. Client Responsibilities
(a) Compliance with Laws. Client shall be solely responsible for ensuring that it uses the System only in a manner that complies in all material respects with all applicable laws and regulations, including for ensuring that Client is permitted under all applicable laws and regulations to use and provide Client Data (defined below) to Virdee for processing in accordance with this Agreement.(b) Technical Requirements. Client shall be solely responsible for obtaining, configuring and maintaining any third-party hardware, network connectivity and third-party software required to access and use the System, including computers, operating systems, web browsers and storage devices. Client shall be responsible for providing and maintaining the Hardware’s inventory of Mifare® cards or other compatible RFID cards as specified by Virdee.
(c) Internet Connectivity. Client shall use commercially reasonable efforts to keep the Hardware connected to the internet at all times. Client understands that the System may not function if the Hardware is not connected to the internet, and firmware updates may be pushed automatically to the Hardware via the internet. Client understands that use of the System without the most current version of Software may result in damage to the Hardware or degradation of results obtained using the System for which Virdee is not responsible.
(d) Third-Party Products. The System process information provided through Client’s accounts with certain third-party services and products (the “Third-Party Products”). Any business relationship, exchange of data or other interaction between Client and any such third party, and/or any purchase, download or use by Client of any Third-Party Products, is solely between Client and such third party. While Virdee may recommend such a third party and/or rely on data or information provided or generated by such Third-Party Products, Client hereby acknowledges and agrees that: (i) Virdee does not warrant the accuracy, reliability or completeness of any Third-Party Products or any such data and information, and (ii) Virdee shall not be liable for any acts or omissions based on its reliance on such data and information or any loss or liability caused by such third party. Virdee reserves the right to discontinue the access to the System (or any part thereof) with or without notice, if Client’s use of the System violates any terms or condition set forth in any agreement governing any Third-Parts Products.
(e) Protection. Client shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Client Facilities. In the event that Client becomes aware of any unauthorized access to or use of the System through use of Client Facilities, Client shall promptly give written notice to Virdee of such breach and make reasonable efforts to eliminate it. Client shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the System through Client Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.
(f) Policies. In addition to the terms and conditions of this Agreement, access to and use of the System shall comply with and be subject to any terms of service, acceptable use guidelines, privacy policy, end user license agreement and other guidelines instituted by Virdee or its licensors or service providers (collectively, “Policies”).
(g) Settings. Client, through the Admin Users it assigns, shall be solely responsible for implementing Client’s permissions architecture for access to the System and, as applicable, access to Client Data for third parties through APIs, SDKs or other connectivity options made available by Virdee (“Settings”). Client understands that Virdee will not be able to modify Settings for Client.
5. Fees, Shipping, and Taxes
(a) Fees. Client shall pay Virdee the applicable fees set forth in the Order Form pursuant to the payment terms therein. In addition to the fees described in the Order Form, Client will pay Virdee’s documented out-of-pocket travel expenses (at cost). All fees are non-refundable; provided, however, that Virdee will refund any Deposit (as set forth in the Order Form) after deduction of any unpaid fees or costs for Hardware damage.(b) Late Fees. Any payment not received from Client when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less.
(c) Shipping. After Virdee has received a signed Order Form, Virdee will ship the Hardware directly to Customer, at Customer’s expense. Shipment will be FOB Virdee’s shipping point.
(d) Taxes. Any and all amounts payable hereunder by Client are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”). Client shall be solely responsible for paying all applicable Taxes. If Virdee has the legal obligation to collect any Taxes, Client shall reimburse Virdee upon invoice by Virdee. If Client is required by law to withhold any taxes from its payments to Virdee, Client shall provide Virdee with an official tax receipt or other appropriate documentation to support such payments and take reasonable steps to minimize such payments.
6. Intellectual Property and Ownership of Hardware
(a) Responsibility for Content. All data, information and other content accessible through the System (“Data”) are the sole responsibility of the party from whom such materials originated. Client acknowledges and agrees that Client, and not Virdee, is entirely responsible for all Data that Client submit, upload, email, transmit or otherwise make available through the System (“Client Data”).(b) Virdee Ownership. Client acknowledges and agrees that, as between Virdee and Client, Virdee owns all right, title and interest (including all Intellectual Property) in and to System, including all Data therein (except for Client Data).
(c) Client Data. Virdee acknowledges and agrees that, as between Client and Virdee, Client owns all right, title and interest (including all Intellectual Property) in and to Client Data. Client hereby grants Virdee and its service providers a worldwide, royalty-free, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Client Data (including Aggregate Data) as necessary for Virdee to: (i) provide access to the System to Client (including any Professional Services); (ii) provide maintenance, support, calibration, diagnostic and troubleshooting services to Client relating to the System; and (iii) monitor and improve the System.
(d) Aggregate Data. Client acknowledges and agrees that Virdee may collect or generate Aggregate Data in connection with providing Client with access to the System, and Client hereby grants Virdee and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose.
(e) Suggestions. If Client elects to provide or make available to Virdee any suggestions, comments, ideas, improvements or other feedback relating to the System (“Suggestions”), Client hereby grants Virdee a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions in any manner, without credit or compensation to Client.
(f) Trademarks. During the term of this Agreement, Client hereby grants Virdee a limited, nonexclusive, royalty-free license to use Client’s names, logos, trade names, domain names, uniform resource locators, trademarks and service marks (“Marks”) as reasonably necessary for Virdee to provide Client with the System and Professional Services. Virdee will not: (i) alter or otherwise modify any of the Marks; (ii) attack ownership of, or rights to, any of the Marks; or (iii) intentionally use the Marks in a way that might deceive others, create a likelihood of confusion or destroy or diminish the goodwill in any of Marks.
(g) Intellectual Property Notices. Client shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the System.
(h) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
(i) Ownership of Hardware. The Hardware shall at all times be the sole and exclusive property of Virdee and Client shall not have any rights or property interest therein. Client may not assign any right or interest to the Hardware or permit any lien or encumbrance to exist thereon. Upon expiration or termination of this Agreement for any reason, Client shall promptly return the Hardware to Virdee.
7. Term, Suspension and Termination
(a) Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of the Initial Term, each as specified in the Order Form. Thereafter, this Agreement shall automatically renew for successive terms equal in duration to the Initial Term (each, a “Renewal Term”), subject to payment of all applicable fees by Client, unless either party gives written notice of non-renewal to the other party within thirty (30) days before the conclusion of the Initial Term or applicable Renewal Term. Virdee reserves the right to change prices and other terms for the System for any upcoming Renewal Term by providing notice of such change to Client at least thirty (30) days before the commencement of the applicable Renewal Term.(b) Suspension. Virdee reserves the right to suspend Client’s access to or use of the System in the event of: (i) Client’s breach of this Agreement, including Client’s failure to pay any fees when due under this Agreement; or (ii) an Emergency Security Issue, in which case Virdee will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue. Virdee further reserves the right to suspend or revoke access to the System for violations of any Policy.
(c) Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
(d) Events Upon Termination. Upon termination of this Agreement for any reason: (i) Client shall immediately cease all use of and access to the System; (ii) Client shall return all portions of the System within Clients custody or control by methods previously approved by Virdee; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 10(a)) and return or destroy all copies of such Confidential Information that are within its custody or control.
(e) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2(b) {Restrictions}; 4(f) {Fees and Taxes}; 6 {Intellectual Property}; 7(d) {Events Upon Termination}; 7(e) {Survival}; 8 {Representations and Warranties}; 9 {Indemnification}; 10 {Confidential Information}; 11 {Disclaimer of Warranties}; 12 {Limitation of Liability}; and 13 {Miscellaneous}. 8. Representations and Warranties
Virdee and Client each represents and warrants to the other that: (a) it has the necessary power and authority to enter into this Agreement; (b) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (c) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (d) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (e) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
9. Indemnification
(a) Virdee Indemnification. Virdee agrees that Client shall have no liability and Virdee shall indemnify, defend and hold Client harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that Client’s use of the System infringes the Intellectual Property of such third party; provided, however, that Virdee shall have no obligation to indemnify Client from any Losses to the extent they arise from: (i) use of the System by Client or through Client Facilities in any manner that does not comply in all respects with the terms and conditions of this Agreement or any Policies or applicable laws or regulations; (ii) use of the System by Client or through Client Facilities in combination with any hardware, software, or consumables not provided or approved by Virdee; (iii) modifications to the System made by or on behalf of Client or through Client Facilities that are not authorized by Virdee; or (iv) any Client Data (Sections 9(a)(i) through 9(a)(iv)), collectively, “Client Acts”). In the event that any part of the System becomes the subject of a Loss or Virdee reasonably determines that any part of the System is likely to become the subject of a Loss, Virdee may, at its sole discretion: (1) procure for Client a license as necessary for Client to exercise the rights granted by Virdee under this Agreement; (2) modify or replace the System to avoid infringement, provided, however, that the System as modified or replaced retains materially the same or better features and functionality; or (3) terminate this Agreement and provide a pro rata refund of the fees paid by Client to Virdee for the unused portion of the Initial Term or Renewal Term, as applicable.(b) Client Indemnification. Client agrees that Virdee shall have no liability and Client shall indemnify, defend and hold Virdee harmless against any Loss to the extent arising from any Client Acts.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 9, except to the extent the indemnifying party has been materially prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
10. Confidential Information
(a) Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary. Ionization Lab’s Confidential Information shall include, but not be limited to, the terms and conditions of this Agreement, the source code and architectural and physical framework of the various components the System, information relating to future releases of System components, testing processes, training videos, instructions, manuals, pricing information, and business plans provided by either party.(b) Non-Disclosure. Each party will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third-party Confidential Information of the other party. Client agrees that at no time will Client disseminate any materials supplied to Client, including, without limitation via blog, video channels, data uploading services, etc. To maintain in confidence the Confidential Information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure. 11. DISCLAIMER OF WARRANTIES
ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” VIRDEE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 8), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH PRODUCTS AND SERVICES WILL BE, ACCURATE, ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CLIENT’S REQUIREMENTS. CLIENT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO OR THEFT OF THE HARDWARE WHILE IN CLIENT’S CUSTODY OR CONTROL, INCLUDING ANY DAMAGE ARISING FROM DROPS, WATER DAMAGE OR OTHER MISUSE. VIRDEE WILL HAVE NO LIABILITY OR OBLIGATION TO REPAIR OR PROVIDE MAINTENANCE AND SUPPORT IN CONNECTION WITH THE SYSTEM FOR ANY ERROR OR DAMAGE ARISING FROM CLIENT ACTS (AS DEFINED IN SECTION 9(a)). 12. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR BREACH OF SECTION 2(b) OR 10: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SYSTEM OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY VIRDEE FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.
13. Miscellaneous
(a) Independent Contractors. The relationship between Virdee and Client established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.(b) Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 13(b): To Virdee
Virdee, Inc.
Attn: Legal
2120 W Braker Ln, Suite D
Austin, TX 78758 To Client
As set forth in Order Form (c) Publicity. Notwithstanding anything to the contrary, including Section 10, Virdee shall be permitted use the Marks on Virdee’s website or other marketing materials in order to identify Client as a Virdee client and issue a press release describing in general terms the business relationship between the parties.
(d) Assignment. Client may not assign this Agreement or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Virdee. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Interpretation. For the purposes of this Agreement: (i) use by Client includes use by Admin Users and Testers; (ii) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (iii) the word “or” is not exclusive; and (iv) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.
(g) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(h) Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(i) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
(j) Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.
(k) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(l) Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.
(m) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
