Merchant Marketplace:
Terms & Conditions

1. LICENSES & OBLIGATIONS

 

1.1 Trademark License.

 

(a) License to Retailer. Subject to the terms and conditions hereof, CannaGo grants to Retailer, for the Term of this Agreement, a limited, revocable, non-exclusive, royalty-free license to use CannaGo’s trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, “CannaGo Marks”) in the form delivered by CannaGo, as reasonably necessary to perform CannaGo’s obligations hereunder. Retailer’s use of the CannaGo Marks does not confer or imply any ownership, goodwill, or other rights in the CannaGo Marks.

 

​(b) ​​License to CannaGo. Subject to the terms and conditions hereof, Retailer grants CannaGo a limited, revocable, non-exclusive, non-transferable royalty-free license, during the Term, to use the designated Retailer trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, “Retailer Marks”) in the form delivered by Retailer, as reasonably necessary to perform CannaGo’s obligations hereunder.  CannaGo’s use of any Retailer Marks does not confer or imply any ownership, goodwill, or other rights in the Retailer Marks.

 

​1.2 ​CannaGo Service License.

 

(a) License. Subject to the terms and conditions hereof, CannaGo hereby grants to Retailer, for the term of this Agreement, a worldwide, license to:  (i) use the CannaGo Service in connection with the Retailer Service, and (ii) to make available the CannaGo Service in connection with the Retailer Service to consumers (“Consumers”).

 

​(b) ​​Retailer will not disassemble, decompile, or reverse engineer any CannaGo Service.

 

​1.3 ​Retailer Data License. Subject to the terms and conditions of this Agreement, Retailer grants CannaGo a limited, non-exclusive, transferable royalty-free license during the Term to use the Retailer Data solely to perform its obligations hereunder. “Retailer Data” means all data and information provided by, relating to, of or concerning Retailer and/or its Consumers that is/was obtained by, disclosed to or otherwise made available to CannaGo by the Consumer or Retailer for the purposes of engaging in the Retailer Service, including personal information, product pricing, geographic location, and product information, inventions, designs, methodologies, intellectual property.  Notwithstanding the foregoing, in order to create performance reports, white papers, or to improve or promote the CannaGo Service, CannaGo may use, aggregated, anatomized Retailer Data, which shall be the sole property of CannaGo.

 

​1.4 ​CannaGo Obligations.

 

​(a) ​Technology

​(i) Hosting. Throughout the Term of the Agreement, CannaGo, at its sole cost and expense, will be responsible for development, design, operation, hosting, maintenance and monitoring of the CannaGo Service.  CannaGo will maintain such personnel, software, servers and other equipment/resources adequate to support its obligations under this Agreement, including:

(ii) Setup & Configuration. CannaGo will provide Retailer assistance in the implementation and deployment for the CannaGo Service reasonably necessary to support Retailer’s use as permitted under this Agreement.

(iii) Updates. Throughout the Term, CannaGo will update, as it determines appropriate in its sole discretion, the CannaGo Service.

 

(b) Product Purchases and Payments

(i) Notification of Orders. CannaGo agrees to promptly notify Retailer through the CannaGo Service platform of all product orders placed with Retailer.

(ii) Product Delivery. CannaGo will arrange for the product purchased from Retailer to be picked up from the Retailer’s location and delivered to Consumer.

(iii)Payment to Retailer. CannaGo shall pay Retailer for the products purchased pursuant to the payment terms herein.

 

1.5 Retailer Obligations

 

(a)Order Fulfillment.

(i) When an order is placed on the CannaGo Service, Retailer shall have up to 10 minutes during regular business hours to accept the order.  Failure to accept the order in this 10-minute window will result in cancellation of the order. Retailer shall make every effort to ensure prompt and accurate processing of orders accepted through the CannaGo Service.

(ii) Retailer shall handle the orders in a timely and efficient manner and shall ensure that the products ordered are accurately packaged and ready for pickup for delivery to the Consumer.

 

(b)CannaGo Promotions

(i) Retailer will use commercially reasonable efforts to promote the CannaGo Service throughout the Term.

(ii) Retailer agrees to allow CannaGo to promote CannaGo Service in the Retailer’s locations, including placing cards, flyers, standing banners, standing floor signage, and other marketing materials. Retailer agrees to display and/or offer its Consumers the marketing materials provided by CannaGo.

(iii) Retailer grants CannaGo the right to enter the Retailer's premises during reasonable business hours to promote the (iv) CannaGo Service during the term of this Agreement.(CannaGo shall have the right to host up to one event per month at the Retailer's premises to promote the CannaGo Service. Such events shall be scheduled at a mutually agreed upon time and shall not interfere with the Retailer's business operations. The Retailer shall provide reasonable assistance to CannaGo in hosting such events, including access to the premises, marketing materials, and other resources as reasonably necessary.

(v) Retailer shall allow authorized representatives of CannaGo to ensure that its Consumers are aware that its products are available for delivery on the CannaGo Service and incentivize Consumers to use the mobile application.

(vi) Retailer shall provide CannaGo with access to contact information of its Consumers for the purpose of allowing CannaGo to advertise CannaGo's services to the Consumers. The Retailer shall ensure that any use of its Consumer list by CannaGo is in compliance with all applicable laws and regulations.

(vii) Retailer shall require its employees to inform all Consumers of the CannaGo Service and encourage Consumers to download the CannaGo app for delivery. Retailer shall ensure that its employees are adequately trained to promote the CannaGo Service to Consumers.

(viii) In addition to the foregoing, Retailer agrees to cooperate with CannaGo in the promotion of the CannaGo Service. The Retailer shall promptly respond to any requests for cooperation from CannaGo and provide CannaGo with any information reasonably requested by CannaGo to promote the CannaGo Service.

 

(c) Inventory Management and Product Representations

(i) The Retailer shall ensure that the products listed on the CannaGo Service are in stock and the descriptions of the products are accurate. The Retailer shall also be responsible for adding, editing, and deleting products from the CannaGo Service.

(ii) Retailer is responsible for maintaining and updating the Certificate of Analysis (“COA”) behind each product listed on the CannaGo Service. Upon request at any time, Retailer shall provide CannaGo with the COAs behind any product that has been listed or is currently listed on the CannaGo Service.  CannaGo assumes no responsibility for reviewing or verifying the COA for compliance with any applicable laws.

(iii) Retailer is responsible for ensuring that all products it lists on the CannaGo Service can be legally sold and purchased in the applicable jurisdiction.

(iv) The Retailer is fully responsible for all representations about the products Retailer makes available on the CannaGo Service platform.

 

(d) Retailer Information and License

(i) Retailer shall be responsible for notifying CannaGo of any changes in the contact information or hours of operation of any of Retailer’s dispensaries. This includes phone numbers, ownership information, new or closed locations, and email addresses.  Retailer is also responsible for ensuring such relevant information about its dispensaries is accurate on the CannaGo Service.

(ii) Retailer is solely responsible for maintaining any applicable licenses or approvals for the sale of any products with the appropriate jurisdiction.  Retailer will promptly notify CannaGo of any changes in its licensure status.

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2. PAYMENT TERMS

2.1 Payment for Products and Service Fee. CannaGo shall remit payment to Retailer within seven (7) days of receiving payment from the Consumer for products purchased from Retailer on the CannaGo Service, minus a 25% service fee (“Service Fee”). The Service Fee shall be deducted by CannaGo from the total payment received from the Consumer(s) before remitting payment to Retailer. Payment shall be made to Retailer via electronic funds transfer (EFT) to the bank account designated by Retailer in writing.

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2.2 Bank Account. Retailer shall be responsible for providing CannaGo with accurate and up-to-date bank account information and providing CannaGo deposit access. CannaGo shall deposit payments to Retailer per Section 2.1 into the account provided by the Retailer, unless explicitly notified of a change in the account information by the Retailer.  CannaGo will not be responsible for any failed or late payments due to Retailer’s failure to timely notify CannaGo of any changes to its bank accounts. Retailer shall be solely responsible for any bank fees associated with receiving the payment from CannaGo, including but not limited to wire transfer fees or ACH fees.

 

 

2.3 Taxes. CannaGo will collect sales tax from Consumers who purchase products on the CannaGo Service and will be responsible for such payment.  Retailer shall be solely responsible for paying any and all other taxes associated with its business.

 

3. CONFIDENTIAL INFORMATION​

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3.1 Maintenance of Confidentiality. Each of the parties will take reasonable measures to cause its respective employees, attorneys, accountants, consultants and its agents and advisors (collectively, and together with their respective officers and directors, “Agents”) to maintain in confidence the terms of this Agreement and all information of the disclosing party that is marked as “Confidential,” “Proprietary” or some similar designation in connection with this Agreement, including each party’s software, documentation, and flow charts (the “Confidential Information”).  Notwithstanding the foregoing, in the case of Retailer, Confidential Information includes the Retailer Data. Each party agrees not to disclose Confidential Information except to its respective Agents that need to know such Confidential Information. Each party further agrees that it will not use the Confidential Information for any purpose other than determining and performing its obligations and exercising its rights against the other party in the event of a claimed breach of this Agreement.  Each party will take reasonable measures necessary to prevent any unauthorized disclosure of the Confidential Information by any of their respective Agents. The measures taken by a party to protect Confidential Information will not be deemed unreasonable if the measures taken are at least as strong as the measures taken by the disclosing party to protect such Confidential Information.

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3.2 Permitted Disclosures. Nothing herein will prevent either party or its Agents from using, disclosing, or authorizing the disclosure of Confidential Information it receives which:

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(a) has been published or is in the public domain, or which subsequently comes into the public domain, through no fault of the receiving party;

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(b) prior to receipt hereunder was properly within the possession of the receiving party or, subsequent to receipt hereunder is lawfully received from a third party having rights therein without restriction of the third party’s right to disseminate the Confidential Information and without notice of any restriction against its further disclosure, in either case as evidenced by the business records of the receiving party;

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(c) is independently developed by the receiving party without use of such Confidential Information, as evidenced by the business records of the receiving party; or

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(d) the receiving party is required to be produced under order of a court of competent jurisdiction or other similar requirements of a governmental agency, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.

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3.3 Survival. The obligations under this Article 3 will survive, as to any party, until two (2) years following the date of termination of this Agreement.

 

4. OWNERSHIP​

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4.1 CannaGo’s Ownership. Retailer acknowledges CannaGo’s right, title, and interest in and to the CannaGo Marks, CannaGo Service, and Usage Information and acknowledges that nothing herein will be construed to accord to Retailer any rights in the CannaGo Marks, CannaGo Service, or Usage Information except as expressly provided herein. Retailer acknowledges that, except as expressly provided herein, its use of the CannaGo Marks or CannaGo Service will not create in Retailer any right, title or interest in the CannaGo Marks or CannaGo Service and that all use of the CannaGo Marks and the goodwill symbolized by and connected with such use of the CannaGo Marks will inure solely to the benefit of CannaGo. Retailer covenants that (i) Retailer will not at any time challenge CannaGo’s rights, title, or interest in the CannaGo Marks, CannaGo Service, or Usage Data (other than to assert the specific rights granted to Retailer under this Agreement), and (ii) Retailer will not represent to any third party that Retailer has any ownership or rights with respect to the CannaGo Marks other than the specific rights conferred by this Agreement. Retailer agrees that upon expiration or termination of the Agreement, Retailer will immediately stop using the CannaGo Marks.

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4.2 Retailer Ownership. CannaGo recognizes the unique value, goodwill, and secondary meaning associated with the Retailer Marks.  All rights, title, and interests in the Retailer Marks, the Retailer Data and the goodwill pertaining thereto automatically vests in Retailer, and at all times will remain owned by and in the name of Retailer.  CannaGo will not contest the validity of Retailer’s ownership of any Retailer Mark or Retailer Data.  CannaGo agrees that upon expiration or termination of the Agreement, CannaGo will immediately stop using the Retailer Marks and Retailer Data, except as such Retailer Data is incorporated into the Usage Data.

 

5. REPRESENTATIONS, WARRANTIES AND COVENANTS

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5.1 CannaGo Representations, Warranties, and Covenants

(a) Right to Grant License. CannaGo represents, warrants, and covenants that (i) CannaGo has the right to grant the licenses provided for in this Agreement, and (ii) the CannaGo Marks and CannaGo Service (excluding any content provided by the Retailer or the Consumers (the “Consumer Content”):  (a) does not violate any applicable law, statute, directive, ordinance, treaty, contract, or regulation, (collectively, “Laws”), (b) does not infringe any copyright, patent, trademark or other intellectual property right of any person or entity, and (c) does not breach any agreement, duty toward, or rights of, any person or entity.

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(b) Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, CANNAGO MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND OR NATURE WHETHER EXPRESS OR IMPLIED WITH RESPECT TO THE CANNAGO MARKS OR THE CANNAGO SERVICE.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE CANNAGO SERVICE IS PROVIDED “AS IS”.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING IN LAW.  CANNAGO DOES NOT ASSUME OR AUTHORIZE RETAILER TO ASSUME FOR CANNAGO ANY OTHER WARRANTY.

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5.2 Retailer Representations, Warranties, and Covenants

 

(a) Product Quality: Retailer warrants that all products offered for sale on the CannaGo Service are of good quality, free from defects, and comply with all applicable laws and regulations.

 

(b) Compliance with Laws: Retailer warrants that it is in compliance with all applicable laws and regulations related to its operation, including but not limited to those related to the sale, marketing, distribution, and delivery of cannabis products.

 

(c) Accuracy of Product Information: Retailer warrants that all product information it provides on the CannaGo Service, including product descriptions, pricing, and availability, is and will be accurate, complete, and up-to-date during the entire Term.

 

(d) Ownership and Intellectual Property: Retailer warrants that it has the legal right and authority to sell the products it lists on the CannaGo Service and that the products do not infringe upon any intellectual property rights of third parties.

 

6. INSURANCE, INDEMNIFICATION, AND LIMITATION OF LIABILITY

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6.1 Insurance

(a) Retailer shall maintain proper insurance throughout the Term of this Agreement and shall add CannaGo as an additional insured on the policy. The Retailer shall provide proof of such compliance if requested by CannaGo at any time. The obligation to maintain insurance shall continue as long as the Retailer is using the CannaGo Service.

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6.2 Indemnification.​​

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(a) Retailer agrees to indemnify, defend and hold harmless CannaGo from any third party claim, whether actual or alleged (collectively, “Loss”) suffered or incurred by CannaGo to the extent that such Loss arises out of or in connection with Retailer’s breach of this Agreement or arising from or related to any products sold by Retailer through CannaGo Services.  Retailer agrees to be solely responsible for defending any such Loss against CannaGo, subject to CannaGo’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Losses against CannaGo, provided that Retailer will not agree to any settlement that imposes any obligation or liability on CannaGo without its prior express written consent.​

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(b) CannaGo will indemnify, defend and hold harmless Retailer from any Loss suffered or incurred by Retailer that arises out of or in connection with CannaGo’s breach of this Agreement.  CannaGo agrees to be solely responsible for defending any such Loss against Retailer, subject to Retailer’s right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Losses against Retailer, provided that CannaGo will not agree to any settlement that imposes any obligation or liability on Retailer without its prior express written consent.

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6.3 Limitation of Liability.

 

(a) CANNAGO ASSUMES NO RESPONSIBILITY FOR ANY CLAIMS, LOSSES, DAMAGES, OR LIABILITIES ARISING FROM THE RETAILER'S PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY PHYSICAL HARM, ILLNESS, OR DEATH CAUSED BY SUCH PRODUCTS OR ANY REPRESENTATIONS ABOUT SUCH PRODUCTS. THE RETAILER SHALL BE SOLELY RESPONSIBLE FOR ANY SUCH CLAIMS, LOSSES, DAMAGES, OR LIABILITIES.

 

(b) ANY LIABILITY OF CANNAGO IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE AMOUNT PAID BY RETAILER TO CANNAGO PURSUANT TO THIS AGREEMENT IN THE THREE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

 

7. RELATIONSHIP OF PARTIES

 

It is the express intention of the parties that no partnership will exist between Retailer and CannaGo pursuant hereto. This Agreement will not be construed to make either party the agent or legal representative of the other party for any purpose whatsoever, and neither party is granted any right or authority to assume or create any obligations for, on behalf of, or in the name of the other party.

 

8. TERM; TERMINATION; EFFECTS OF TERMINATION

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8.1 Term. This Agreement commences on the Effective Date and continues for one year (“Term”) and shall automatically renew for successive one-year Terms unless terminated pursuant to Section 8.2 below.

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8.2 Termination. Notwithstanding Section 8.1, either party may terminate this Agreement:

 

(a) upon sixty (60) days written prior to the end of the then-current Term, which termination shall be effective as of the end of such Term;

 

(b) upon thirty (30) days’ written notice if the other party breaches any provision of this Agreement and such breach is not cured within such thirty (30) days period; or

 

(c) upon written notice effective immediately if (i) the other party ceases operations (other than in connection with a valid assignment) or  (ii) the other party becomes voluntarily or involuntarily subject to a bankruptcy or similar proceeding.

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8.3 Effects of Termination.

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(a) If this Agreement terminates because CannaGo breaches the Agreement and fails to cure, CannaGo ceases operations, or CannaGo becomes subject to bankruptcy, Retailer will not owe any unpaid portion of the Service Fee owed at the time of termination.   

 

(b) If prior to the end of the Term, this Agreement terminates for any reason except as set forth in 8.3(a), Retailer shall pay CannaGo a Cancellation Fee.

(i) The Cancellation Fee shall be the greater of $1,500 (one-thousand five hundred dollars) or a fee equal to 50% of the total revenue generated by Retailer through the CannaGo Service in the preceding month.

(ii) The parties acknowledge that the Cancellation Fee is a reasonable estimate of the damages that CannaGo will suffer due to the early termination of this Agreement. The Parties further acknowledge that it would be difficult to determine the actual damages that CannaGo would suffer because of such termination. Therefore, the Parties agree that the Cancellation Fee constitutes a valid and enforceable liquidated damage clause, and not a penalty, and that CannaGo's right to receive the Cancellation Fee is in addition to any other rights or remedies available to CannaGo at law or in equity.

 

(c) Upon the expiration or termination of this Agreement for any reason:​​​

(i) Retailer will (x) return all CannaGo Confidential Information and remove copies of CannaGo Confidential Information from its information systems, including any backup media or servers, and (y) stop using the CannaGo Marks and CannaGo Service.

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(ii) CannaGo will (x) return all Retailer confidential information and remove copies of Retailer Confidential Information from its information systems, including any backup media or servers, and (z) stop using the Retailer Marks.

 

(d) Any provision of this Agreement that, by its nature, should survive termination of this Agreement shall survive.

 

9. ASSIGNMENT

 

By operation of law or otherwise, neither party may assign, sublicense, or transfer the Agreement or any right or duty under the Agreement, without the other party’s prior written consent, which will not be unreasonably withheld; provided, however, either party may assign this Agreement, in whole, to any third party in connection with any merger, consolidation, reorganization, liquidation, or sale of all or substantially all of the business or assets of such party. Any purported assignment or transfer of the Agreement in violation of this Article will be null and void.

 

10. DISPUTES AND REMEDIES

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10.1 Resolutions and Remedies for Consumer Order Issues

 

(a) Out of Stock Product: In the event that a Consumer orders a product from the CannaGo Service that Retailer represented as being in stock, but is unavailable, the Retailer shall undertake good faith efforts to resolve the matter directly with Consumer by offering a similar product to the Consumer of lesser, equal or greater value. If such efforts are unsuccessful and the all are part of the order must be cancelled, the Retailer shall issue a refund to the Consumer for the cancelled order, and pay a penalty equal to 20% of the cost of the unavailable product(s) to compensate CannaGo for costs incurred as a result of the error. This provision shall apply to orders consisting of one or more products.

 

(b) Wrong Product Received: In the event that a Consumer receives the wrong product, CannaGo and Retailer shall conduct a collaborative investigation to determine the cause of the error. If the investigation shows that the error was caused by Retailer, Retailer shall issue a full refund to the affected Consumer. If the investigation shows that the error was caused by CannaGo, CannaGo shall issue a full refund to the affected Consumer. If Retailer wishes to retrieve the product from the Consumer, Retailer shall be responsible for the cost of delivery to retrieve the product from the Consumer

 

(c) Unaccepted Orders: If Retailer fails to accept more than 5% of orders placed on the CannaGo Service within any 14-day rolling period, CannaGo reserves the right to impose a penalty equal to no more than 20% of the total value of all unaccepted orders during the 14-day period, and/or to terminate the Agreement at its sole discretion.

 

(d) Other Remedies. The provisions regarding out of stock products, wrong product received, and unaccepted orders shall not limit CannaGo's rights and remedies for any breach of this Agreement by Retailer, whether or not such breach falls within the scope of the aforementioned provisions. CannaGo reserves the right to pursue any and all available legal and equitable remedies, including but not limited to monetary damages, injunctive relief, and termination of the Agreement.

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10.2 Governing Law. The laws of the State of Georgia (without regard to principles of conflict/choice of laws) will govern this Agreement, the construction of its terms, and the interpretation of the rights and duties of the parties.  CannaGo and Retailer each agree to submit to the exclusive jurisdiction of the state and federal courts located in Fulton County, Georgia.

 

11. MISCELLANEOUS

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11.1 Notices. Any legal notice regarding indemnification, Confidential Information, and/or breach of the Agreement will be in writing and mailed (certified or registered mail, postage prepaid, return receipt requested) or sent by hand or overnight courier, charges prepaid and addressed to the address set forth on the signature page hereto, or to such other address as such party may from time to time specify by written notice to the other party.  All notices and other communications given to a party in accordance with the provisions of this Agreement will be deemed to have been given when received (if delivered in person), the date set forth on the return receipt, delivery confirmation or equivalent or when delivery is attempted if delivery is refused.

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11.2 Binding Effect; Construction. Except as otherwise provided in this Agreement, this Agreement will be binding upon and inure to the benefit of the parties and their permitted respective successors, transferees, and assigns.  This Agreement will be construed simply according to its fair meaning and not strictly for or against any party.

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11.3 Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile), each of which will be deemed an original but all of which together will constitute one and the same instrument.

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11.4 Headings. The Section and other headings contained in this Agreement are for reference purposes only and are not intended to describe, interpret, define or limit the scope, extent or intent of this Agreement.

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11.5 Severability. If any term or provision hereof is illegal, invalid or unenforceable for any reason whatsoever, that term or provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and such illegality, invalidity or unenforceability will not affect the validity or legality of the remainder of this Agreement. If necessary to effect the intent of the parties, the parties will negotiate in good faith to amend this Agreement to replace the unenforceable language with enforceable language which as closely as possible reflects such intent.

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11.6 Entire Agreement. The provisions of this Agreement, including the schedules attached hereto, set forth the entire agreement and understanding between the parties as to the subject matter hereof and supersede all prior and contemporaneous agreements, oral or written, and other communications between the parties relating to the subject matter hereof.

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11.7 No Third Party Beneficiaries. This Agreement is entered into solely between CannaGo and the Retailer. Nothing in this Agreement shall create any rights or benefits for any third party not a party to this Agreement, including any Consumer or other user of the CannaGo Service

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11.8 Waivers; Remedies. Any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) by the party entitled to enforce such term, but any such waiver will be effective only if in writing signed by the party against which such waiver is to be asserted. Except as otherwise provided herein, no failure or delay of any party in exercising any power or right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any other further exercise thereof or the exercise of any other right or power.