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SMILE VIRTUAL BY UDO CARE, LLC

VIRTUAL CONSULTATION SUBSCRIPTION AGREEMENT

Last Modified: December 2, 2021

 

The following terms and conditions govern Customer access and use of the Platform provided by Udo Care, LLC (“Udo”) during the Subscription Term (the “Subscription Agreement”).

 

1. Applicability of this SUBSCRIPTION Agreement

1.1 Udo provides communication technology on a software as a service (SaaS) basis that connects patients and health care providers (the “Platform”). The Platform is free to patients, but health care providers (each a “Customer”) must purchase a subscription. This Subscription Agreement is a legally binding contract between Udo and each of its Customers.

1.2 If you are a potential patient or Authorized User (as defined below) of the Platform, please see the User Agreement, which governs your use of the Platform.

1.3 If you have any questions over this document or what legal terms apply to your use of the Platform, please contact Udo at [email protected]

2. Acceptance and Modification of this SUBSCRIPTION AGREEMENT

2.1 By accessing or using the Platform or by clicking to accept or agree to this Subscription Agreement when this option is made available, you acknowledge that you have read, understand, and agree, without limitation or qualification, to be bound and abide by the Subscription Agreement, which includes our Privacy Policy and Business Associate Agreement, both incorporated herein by reference. If you do not wish to agree to the Subscription Agreement, Business Associate Agreement, or the Privacy Policy, you must not access or use the Platform. If you are agreeing to this Subscription Agreement on behalf of your company, you are representing to us that you have the authority to bind your company to this Subscription Agreement, and the term “you” shall refer to your company.

2.2 The Platform is offered and available to users who are eighteen (18) years of age or older. You represent and warrant that you are of legal age to form a binding contract with Udo.

2.3 Udo may revise and update this Subscription Agreement from time to time in our sole discretion. Unless set forth otherwise at the time of posting, all changes are effective immediately when posted and apply to all access to and use of the Platform thereafter. Your continued use of the Platform following the posting of changes means that you accept and agree to the changes. It is your responsibility to check this Subscription Agreement periodically for changes, as these changes are binding on you.

3. DEFINITIONS

3.1 “Authorized User” means any of your employees, consultants, contractors or agents authorized by your administrator to access and use the Platform on behalf of your business, in each case subject to such person’s agreement to be bound by the terms of this Subscription Agreement. For the avoidance of any doubt, Authorized User does not include any potential patients with whom you connect using the Platform.

3.2 “Customer Data” means data, case information, communications, artifacts, links, quick response (QR) codes, and other information, including without limitation any information concerning your Authorized Users’, or patients’ input into and/or stored by the Platform to which Customer has access.

3.3 “Force Majeure” means the occurrence of any event beyond Udo’s reasonable control, including without limitation, an act of God, a labor disturbance, an Internet outage, interruption of service, communication outage, failure by a service provider to Udo, acts of an intervening bad actor, fire, terrorism, natural disaster, or war.

3.4 “Initial Term” means the use term for the Platform as set forth in the Order Form.

3.5 “Order Form” means any online or written subscription order form for the Platform submitted by you either during an online subscription process or separately signed by you and submitted to Udo, and any future purchase order or order form that refers to this Subscription Agreement.

3.6 “Personally Identifiable Information” means information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, or the like alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date or birth, mother’s maiden name, etc.

3.7 “Platform” means the virtual consultation SaaS service that is developed, operated, and maintained by Udo (and its third-party service providers) and to which you purchase or otherwise receive a subscription or use rights through Udo or an authorized agent.

3.8 “Subscription Term” means the Initial Term and any subsequent month-to-month renewal term.

3.9 “Third-Party Content” means any third-party content that Udo may make available for your access, reference, or use in connection with the Platform, including without limitation any content provided by users of the Platform.

3.10 “Udo Materials” means any documentation, user guides, or other similar materials provided by Udo to you in connection with your use of the Platform.

4. Use Rights / Restrictions

4.1 Use Rights; Restrictions. On the condition that you comply with all your obligations under this Subscription Agreement and that you ensure that all of your Authorized Users comply with this Subscription Agreement and the User Agreement, Udo grants to you during the Subscription Term the non-transferable (except as permitted below), non-exclusive right to permit your Authorized Users to access and use the Platform (and any Udo Materials provided to you). You will, and will ensure that your Authorized Users, comply with the following restrictions:

(i) use of the Platform may not be on behalf of third parties unless a separate agreement between you and Udo permits use of the Platform as a service provider (and in such case is limited to use on behalf of customers for whom you have purchased access and use rights);

(ii) except as expressly permitted herein, you and your Authorized Users may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Platform or the Udo Materials available to any third party;

(iii) you and your Authorized Users may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Platform or Udo Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law);

(iv) you and your Authorized Users may not access or use the Platform or Udo Materials in order to build a similar or competitive product or service; (v) all use of the Platform shall conform with the restrictions set forth in the Order Form for the level of subscription purchased by you;

(v) use of the Platform must not cause undue strain on the Udo network through any non-standard use; and

(vi) use of the Platform must comply at all times with this Subscription Agreement, applicable federal and state law (including without limitation HIPAA 45 C.F.R. Part 2 (the “Part 2 Regulations”)), and the applicable order.

4.2 Use Subject to Regulation. You acknowledge and agree that your use of the Platform may be subject to regulation by a variety of different laws and regulations, including those of jurisdictions where your patient or Authorized User may be located, and that it is your sole responsibility to both research and confirm whether your use of the Platform fully complies with such laws and regulations applicably to you and your business. By accessing, using and continuing to use the Platform, you represent and warrant to Udo that you will continue to do so in compliance with any and all applicable laws. Your or your Authorized Users’ permission to use the Platform may be limited or suspended immediately in Udo’s discretion if Udo believes that this Section has been violated.

4.3 Support. During the Subscription Term, you are entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard support resources made available by us from time to time for the Platform.

4.4 Intellectual Property Rights. Udo and its licensors shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Platform and Udo Materials (including methodologies and business processes used by Udo to develop or provide the Platform or Udo Materials), and any and all updates, enhancements, modifications, customizations and future releases and any other changes relating to the foregoing. Except for the limited access and use rights granted pursuant to this Subscription Agreement, you do not acquire any interest in the Platform or Udo Materials. You agree that if you provide us with any suggestions, enhancement requests or other feedback relating to the Platform or the Udo Materials, we may use such suggestions and feedback without restriction or obligation to you.

4.5 Ownership of Customer Data. As between you, your Authorized Users and Udo, Customer owns all right, title and interest in and to the Customer Data. You (on behalf of yourself and all of your Authorized Users) hereby grant to Udo a non-exclusive, worldwide, royalty-free, and sublicensable right and license to access, use, process, copy, distribute, perform, export and display Customer Data as authorized under the Customer Agreement, including the Privacy Policy and BAA. You, not Udo, shall have responsibility for the accuracy, integrity, and reliability of Customer Data and Authorized Users’ use of the Platform, and Udo shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Customer Data or any destruction, damage, loss or failure caused by any user of the Platform.

4.6 Aggregation Services, Limited Data Sets, and De-Identified Data. Udo may use Protected Health Information (as defined under HIPAA), including that within your Customer Data, to perform data aggregation services (as that term is defined by HIPAA), to create Limited Data Sets (as that term is defined by HIPAA) and/or to de-identify information in accordance with 45 CFR 164.514(a)–(c). You grant a non-exclusive, perpetual, worldwide right to incorporate its Protected Health Information into aggregated data or data sets maintained by Udo and agree that Udo retains any and all ownership claims related to its data sets and the de-identified data it creates from Protected Health Information. Udo may use, during and after this Agreement, all aggregated information and de-identified data for purposes of enhancing the Platform, technical support and other business purposes, all in compliance with the HIPAA privacy standards and the Part 2 Regulations. Udo may create Limited Data Sets using your Protected Health Information and further use and disclose those Limited Data Sets in accordance with the BAA.

4.7 Rights, Permissions, and Consents. You are solely responsible for determining and ensuring that your provision or uploading of patient information into the Platform complies with applicable federal, state and local laws. You shall obtain, and will maintain accurate records of, all necessary rights, contracts, permissions and consents from each individual and entity that you contact, uploads Customer Data related to, or in any other manner uses the Platform with, as required by all applicable laws and regulations, including without limitation HIPAA and 45 CFR 164.508 and any successor regulation thereto and the Part 2 Regulations. You will immediately stop contacting and remove information related to any individual or entity that no longer wishes to receive contact from you or otherwise withdraws necessary rights, permissions or consents required to maintain such information. Notwithstanding the foregoing, Udo reserves the right to remove immediately from your contact database or otherwise block you from communicating through the Platform with any individual or entity identified to Udo by network providers or the authorities as filing a spam report or complaint against you or that contacts Udo directly to request removal from your contact database.

4.8 Use of Service. You acknowledge and agree that the Platform is a tool that may be used to assist health care providers in the practice of medicine, but it is not a substitute for competent human intervention or discretionary thinking. You and your Authorized Users agree to use the Platform only in accordance with applicable standards of good medical practice. You further agree that you are solely responsible for decisions made in configuring the Platform and for the medical decision-making and judgments of your Authorized Users related to the treatment of patients and that Udo has no responsibility or liability therefor.

4.9 Proper Use. You shall use the Platform exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. You acknowledge and agree that the Platform is not designed, intended or authorized for use in emergency, hazardous, or mission-critical circumstances or environments, or where failure could lead to death, personal injury or environmental damage. You shall not use the Platform for such purposes or under such circumstances. You acknowledge and agree that Udo is not obligated to monitor or police communications or Customer Data transmitted through the Platform and that Udo shall not be responsible for the content of any such communications or transmissions.

4.10 Data Backup. Platform is programmed to perform data backups of database records. In the event of any loss, destruction, damage or corruption of Customer Data caused by the Platform, Udo, as its sole obligation and liability and as your sole remedy, will use commercially reasonable efforts to restore Customer Data from Udo’s most current backup of your Data.

5. Fees

5.1 Fees. The fees for the Platform (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Subscription Agreement. Where payment by credit card is indicated in the Order Form, or you otherwise provide Udo or its designated payment processing vendor with credit card information, you authorize Udo to bill such credit card (a) at the time that you order the Platform set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term. If Udo, in its discretion, permits you to make payment using a method other than a credit card, Udo will invoice you at the time of the initial Order Form and thereafter on a recurring basis (for example, monthly or quarterly) in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of your receipt of Udo’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less. If Udo utilizes a third-party payment processing vendor, then additional terms and conditions will apply to your transactions with such vendor.

5.2 Taxes. You agree to pay all sales, use, value-added, withholding and similar taxes (other than taxes on Udo’s net income) arising from the transactions described in this Subscription Agreement, even if such amounts are not listed on an Order Form. To the extent you are exempt from sales or other taxes, you agree to provide Udo, upon request, with the appropriate exemption certificate.

5.3 Non-Payment; Other Suspension Rights. Udo reserves the right, in its reasonable discretion, to suspend your access and/or use of the Platform (i) where any payment is due but unpaid and you have been requested but failed to promptly cure such payment failure, or (ii) in the event of a dispute within your organization as to the proper ownership and right to manage your account and Udo is not promptly provided with written instructions from the interested parties associated with your account that fully resolves the dispute. You agree that Udo shall not be liable to you nor to any third party for any suspension of the Platform resulting from your non-payment of Fees or from a dispute as to the management rights to your account.

6. Confidentiality; Use Of Names

6.1 Confidentiality. (a) Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Platform, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all non-public business, product, technology and marketing information. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party. (b) Confidential Information shall not be reproduced in any form except as required to accomplish the intent of this Subscription Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party: (a) shall take commercially reasonable steps to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. Confidential Information of either party disclosed prior to execution of this Subscription Agreement shall be subject to the protections afforded hereunder.

6.2 Use of Names in Marketing. You may use Udo’s name and credentials in an appropriate and acceptable manner for your standard publicity promotions, provided that you agree to alter such use at Udo’s request where such use is contrary to Udo’s then-current trademark policies or is otherwise objectionable to Udo. Similarly, Udo may use your business name in an appropriate and acceptable manner in connection with representative customer lists, provided that Udo agrees to cease or alter such use at your request where such use is contrary to your branding policies or is otherwise objectionable to you.

7. Term, RENEWAL, AND Termination

7.1 Term and Renewal. The Initial Term is set forth in the Order Form. Notwithstanding anything to the contrary in the Subscription Agreement, you shall not have the right to terminate for convenience during the Initial Term. Unless you and Udo agree to a longer committed Subscription Term as part of a completed Order Form, (a) your initial Subscription Term to the Platform will begin upon execution or submission of your Order Form and shall continue on until the expiration of the Initial Term. Following the Initial Term, your subscription will be renewed on a month-to-month basis until the Subscription Term is terminated. Either party may terminate the Subscription Term to the Platform after the Initial Term without cause by providing thirty (30) days’ prior written notice to the other party. The term of this Subscription Agreement will automatically terminate when the Subscription Term is terminated. Udo’s termination rights are in addition to any suspension rights it may have under this Subscription Agreement.

7.2 Effect of Termination. Upon termination of the Subscription Term, (a) you agree that any Fees then due and payable to Udo must be paid in full, and (b) if you have executed an Order Form for the right to download data created by you on the Platform, then Udo will continue to make your Customer Data available for downloading through the termination date. Following the termination date, Udo may, but is not required to, remove your Customer Data from the production environment for the Platform. The provisions of this Subscription Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.

7.3 Return of Customer Data

(a) Notwithstanding Section 7.2, Udo shall continue to retain any Customer Data that is Protected Health Information for an additional minimum sixty (60) days after termination of this Subscription Agreement (“Data Retention Period”) as a safeguard in the event that you require additional data. To request data from Udo during the Data Retention Period, you should contact [email protected] If you require support for downloading any data after this Subscription Agreement has terminated, Udo may charge for such support.

(b) After the Data Retention Period is completed, Udo will return or dispose of Customer Data containing Protected Health Information as set forth in the BAA. You will solely be responsible for complying with all state and federal records retention requirements. This Section does not apply to any data maintained by Udo in an aggregated data set, has been de-identified, or resides in a Limited Data Set (as defined under HIPAA) in accordance with Section 4.5 and the BAA.

(c) An abandoned account means a Customer has discontinued the Platform (but has failed to formally terminate its account) by a combination of: (A) non-payment of Fees and (B) thirty (30) consecutive days of no logins to the Service by Customer’s Authorized Users. At the 31st day, Udo will deem the account “Abandoned” and the account shall be terminated. Udo will also deem an account “Abandoned” and terminated if Customer fails to confirm their account via e-mail within thirty (30) days of sign-up. After the account is deemed terminated, the data is held for the Data Retention Period. Udo will then properly dispose of Customer Data containing Protected Health Information as set forth in the BAA or as required by law. Customer will solely be responsible for complying with all state and federal records retention requirements.

8. Warranties / Liability Limitations / Indemnity

8.1 Platform Warranties. Udo warrants that during the Subscription Term, the Platform, when properly used, will operate substantially in accordance with the Udo Materials. Udo does not warrant that your use of the Platform will be uninterrupted or error free. If the Platform does not meet this limited warranty, you may contact Udo, and your exclusive remedy shall be that Udo shall correct any deficiencies so that the Platform substantially performs in accordance with the Udo Materials. The limited warranties set forth in this Subscription Agreement do not apply to any deviation of the Platform that is caused by, or results from, (i) modification of the Platform by anyone other than Udo; (ii) use of the Platform for any purpose other than that authorized in this Subscription Agreement; (iii) use of the Platform in combination with other software, data, or products that are defective or incompatible with, or are not authorized by Udo for use with the Platform; (iv) any malfunction of your software, hardware, computers or computer-related equipment; (v) your failure to use any updates to the Platform made available to you by Udo; or (vi) an event of Force Majeure.

8.2 Udo No Exclusion Warranty. Udo warrants that it is not excluded from participating in any federal health care program, is not on the sanctions list issued by the Office of the Inspector General of the Department of Health and Human Services pursuant to the provision of 42 U.S.C. § 1320(a)(7), has not been excluded from government contracts by the General Services Administration, and has not been convicted of a felony or any crime relating to health care.

8.3 Your Warranties and Indemnity. You warrant that your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state, and local laws and regulations in connection with your use of the Platform, and you agree to indemnify and hold Udo harmless from and against any third party or government claims, including all related damages, costs, and expenses (including reasonable attorneys’ fees), that is based upon (i) your violation of law or breach of this warranty in your use of the Platform; (ii) any claim by any third party that Customer Data infringes or misappropriates, as applicable, such third party’s patent, copyright, trade secret or trademark or other intellectual property rights enforceable under applicable laws of any jurisdiction within the United States of America; (iii) any claim of infringement of any patent or copyright or misappropriation of any trade secret in which you or any of your affiliates has a pecuniary or other material interest; (iv) any claim by a third party arising from a compromise, loss or disclosure of Personally Identifiable Information or Protected Health Information; or (v) medical decision-making by you or your Authorized Users, or any of your respective employees, agents or subcontractors.

8.4 Warranty Disclaimers. UDO DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE UDO SERVICE OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE UDO SERVICES AND PROFESSIONAL SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

8.5 Third-Party Content. The Platform may now or in the future be bundled with Third-Party Content designed to facilitate your use of the Platform. Udo does not warrant in any manner and will not be responsible for such Third-Party Content and you agree to look solely to the relevant third-party provider (and not Udo) if and to the extent that you have any complaints or issues relating to the Third-Party Content or its interaction with a Platform.

8.6 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL UDO BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THE CUSTOMER SUBSCRIPTION AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL UDO’S CUMULATIVE LIABILITY UNDER THE CUSTOMER SUBSCRIPTION AGREEMENT AND THE BAA EXCEED THE AMOUNTS PAID BY YOU TO UDO DURING THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE ALLEGED LIABILITY.

9. General Provisions

9.1 Notice. Notices regarding this Subscription Agreement to Udo shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to Udo at the headquarters address shown on our Website, Attn: Legal. Udo may give notice applicable to Udo’s general customer base by means of a general notice through the Udo messages portal, and notices specific to you by electronic mail to your designated contact’s email address on record with Udo, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to your address on record in Udo’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile or email.

9.2 Assignment. You may not assign this Subscription Agreement without providing prior notice to and obtaining the consent of Udo, which shall not be unreasonably denied provided your account is in good standing; provided, further, that the following shall be deemed as assignment for purposes of this Section: (a) any change in control or ownership of you and (b) you undergo a merger, reorganization, transfer, sale of all or some assets or product lines, or any other assignment that occurs by operation of law. Any purported assignment in violation of this Section shall be void.

9.3 Integration; Modification. This Subscription Agreement, any policies referenced herein, and any applicable Order Form, represent the parties’ entire understanding relating to the Platform and the Udo Materials, and supersede any prior or contemporaneous, conflicting, or additional communications.

9.4 Governing Law; Jurisdiction. This Subscription Agreement is governed by and construed in accordance with the laws of the State of Utah, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Subscription Agreement will be brought exclusively in the federal or state courts located in Salt Lake County, Utah, and the parties hereby consent to such venue and personal jurisdiction.

9.5 Force Majeure. Except for the obligation to pay Fees when due and the protection of Confidential Information, neither party will be responsible for Force Majeure situations.

9.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern your use of the Platform. You represent that you are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Platform or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.

9.7 Severability. If any provision of this Subscription Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Subscription Agreement shall otherwise remain in full force and effect.

9.8 Invalidity; Waivers. If any provision or portion of this Subscription Agreement is held invalid, illegal, void or unenforceable as it appears in this Subscription Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Subscription Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.