GOLF COURSE DISTRIBUTION SOFTWARE SERVICE TERMS & CONDITIONS
1. DEFINITIONS AND INTERPRETATION.
1.1 Definitions. The following terms shall have the meanings given to them below:
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an
individual’s identity and authorization to access and use the Services.
“Affiliate” means, with reference to any Person, any other Person, that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such Person. The term “control”
(including the terms “controlled by” and “under common control with”) means the possession of the power, directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of the Person in question, whether through the ownership of voting securities, by contract, license agreement or otherwise.
“Aggregated Statistics” means data and information related to Operator’s and its customers’ use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Agreement” means these Golf Course Distribution Software Service Terms & Conditions and the Golf Course Distribution Agreement.
“Approved Locations” means the websites and mobile applications of Operator, Provider, Provider’s Affiliates and other websites and mobile applications operating under the “Supreme Golf” brand as Supreme Golf Properties.
“Course” means the golf course (or courses) as specified in the Golf Course Distribution Agreement.
“Documentation” means Provider’s or its vendor’s user manuals, handbooks, and guides relating to the Services that Provider provides to Operator either electronically or in hard copy form.
“Golf Course Distribution Agreement” means the Golf Course Distribution Agreement executed between the Operator and Provider.
“Golf Fees” means green fees and cart fees.
“Non-PGA Member Course” means a golf course facility not having a PGA Professional in good standing with the PGA of America.
“Operating Day” is a day on which the Course is open to the public or to private parties or for tournaments or other events to play golf.
“Operator” means golf course Owner or Operator responsible for the operation and management of the Course.
“Operator Promotional Materials” means banner advertisements, button links, text links, RSS Feed, API Feed, course images, course description, course scorecard information, other graphic or textual material and the intellectual property related thereto.
“Operator Systems” means Operator’s information technology infrastructure, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Operator or by using third-party services.
“Operator’s Business” means Operator’s operation and management of the Course.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“PGA Member Course” means the owner of a Multi Course Operator (“MCO”) or golf course facility having a PGA Professional in good standing with the PGA of America.
“Provider and Supreme” means Supreme Golf
“Provider IP” means the Services, the Documentation, and any intellectual property provided to Operator in connection with the foregoing.
“Provider Materials” means the Services, Documentation, and Provider Systems, and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions that are provided or used by Provider in connection with the Services.
“Provider Systems” means the information technology infrastructure used by or for Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or by using third-party services.
“Services” means the services as defined in the Golf Course Distribution Agreement.
“Term” means the term as defined in Section 7.1 below.
1.2 Interpretation. Pronouns used in this Agreement shall include the corresponding masculine, feminine and neutered forms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “herein,” “hereof” and similar terms refer to this Agreement, unless the context otherwise requires. Unless otherwise expressly provided, references in this Agreement to Sections and Exhibits are references to the Sections and Exhibits of this Agreement, and references to Sections includes the subsections of such Sections. The words “shall” or “will” are intended to be mandatory in nature and the word “may” is intended to be permissive in nature. The definition of a particular defined term in this Agreement will apply to that term and to its various tenses and derivatives. This Agreement shall be deemed drafted equally by the parties, and no construction, presumption or burden of proof shall arise favoring or disfavoring either party by virtue of the authorship of any provision of this Agreement. Any capitalized terms not defined herein shall have the meaning given to them in the Golf Course Distribution Agreement.
2. SOFTWARE AS A SERVICE; SERVICES.
2.1 Access and Use. Subject to and conditioned on Operator’s compliance with the terms and conditions of this Agreement, Provider hereby grants Operator a non-exclusive, non-transferable, (except in compliance with Section 9.2) right to access and use the Services during the Term solely for Operator’s Business. If applicable, Provider shall provide to Operator the Access Credentials within a reasonable time after the Effective Date.
2.2 Documentation License. Subject to and conditioned on Operator’s compliance with the terms and conditions of this Agreement, Provider hereby grants to Operator a non-exclusive, non-transferable (except in compliance with Section 9.2) license to use the Documentation during the Term solely for Operator’s Business.
2.3 Operator Use Restrictions. Operator agrees to use the Services and the Documentation only for Operator’s Business. Operator shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the Services or Documentation; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to gain access to any software component of the Services; (d) remove any
proprietary notices from the Services or Documentation; or (e) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any Person, or that violates applicable law.
2.4 Service and Systems Controls. Except as otherwise expressly provided in this Agreement, as between the parties, (a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and (b) Operator has and will retain sole control over (i) the operation, maintenance, and management of, and all access to and use of, the Operator Systems, and (ii) sole responsibility for all access to and use of the Provider Materials by any Person by or through the Operator Systems or any other means controlled by Operator.
2.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Operator’s access to any portion or all of the Services if: (a) Provider reasonably determines that (i) there is a threat or attack on any Provider IP, (ii) Operator’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider, (iii) Operator is using the Provider IP for fraudulent or illegal activities, (iv) subject to applicable law, Operator has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (v) Provider’s provision of the Services to Operator is prohibited by applicable law; or (b) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Operator to access the Services (any such suspension described in subclause (a) or (b) of this section, a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Operator and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Operator may incur as a result of a Service Suspension.
2.6 Statistics. Provider may monitor Operator’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Operator, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Operator acknowledges that Provider may compile Aggregated Statistics based on Operator data input into the Services. Operator agrees that Provider may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
2.7 Provider Reservation of Rights. Provider reserves all rights not expressly granted to Operator in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Operator or any third party any intellectual property rights or other right, title, or interest in or to any Provider IP.
3. DISTRIBUTION RIGHTS.
3.1 Appointment. Subject to the terms and conditions of this Agreement, Operator hereby appoints Provider as a non-exclusive distributor and seller of Operator’s golf course tee time inventory during the term of this Agreement.
3.2 Acceptance of Appointment. Provider hereby accepts such appointment and agrees to exercise commercially reasonable efforts, consistent with its resources, to sell and distribute the tee time inventory during the term of this Agreement.
3.3 Approved Locations; Provider agrees to distribute and sell Operator’s golf course tee time inventory only from Supreme Properties.
3.4 License. Subject to the terms and conditions of this Agreement, Operator hereby grants Provider the right and license to use the Operator Promotional Materials during the term of this Agreement for public display
solely for the purpose of distributing and selling the Courses’ tee time inventory pursuant to this Agreement. Operator may object to and require modification of any use by Provider of any Operator Promotional Materials if Operator reasonably determines that such use would damage Operator’s reputation. In such event, Operator shall provide Provider written notice of such objection describing in reasonable detail the nature of the objection and the actions that the Operator believes are appropriate to address its objection, and the parties shall reasonably cooperate to resolve the matter.
3.5 Provider Use Restrictions. Provider shall use the Operator Promotional Materials solely to distribute and sell Operator’s golf course tee time inventory pursuant to the terms and conditions of this Agreement.
4. CONFIDENTIAL INFORMATION.
4.1 Obligations. The parties acknowledge and agree that proprietary or nonpublic information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), directly or indirectly, which information is marked as “proprietary” or “confidential” or, if disclosed orally, is designated as confidential or
proprietary at the time of disclosure and is summarized in writing within thirty (30) days of disclosure, constitutes the confidential and proprietary information (“Confidential Information”) of the Disclosing Party. The Receiving Party shall retain in confidence and not disclose to any third party any Confidential Information of the Disclosing Party without the Disclosing Party’s express written consent, and the Receiving Party shall not use such Confidential Information except to exercise the rights and perform its obligations under this Agreement.
Without limiting the foregoing, each party shall use at least the same procedures and degree of care which it uses to protect its own Confidential Information of like importance, and in no event less than reasonable care. The parties acknowledge and agree that Provider IP, Provider Materials, and Provider Systems are Provider’s Confidential Information.
4.2 Exceptions. Notwithstanding the foregoing, Confidential Information will not include information to the extent that, in each case, such information, as demonstrated by written documentation:
(a) was already lawfully known by the Receiving Party, to the extent such information was so known by theReceiving Party without an obligation of confidentiality, at the time of disclosure hereunder;
(b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party hereunder;
(c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement;
(d) was subsequently lawfully disclosed to the Receiving Party after the Effective Date by a Person other than a party; or
(e) was independently developed by the Receiving Party without reference to any information or materials disclosed by the Disclosing Party.
4.3 Required Disclosure. Nothing in this Agreement shall prohibit a Receiving Party from disclosing Confidential Information of the Disclosing Party if legally required to do so by judicial or governmental order or by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process in a judicial or governmental proceeding (“Required Disclosure”); provided that the Receiving Party shall, (a) to the extent legally permissible, give the Disclosing Party prompt written notice of such Required Disclosure prior to disclosure, (b) cooperate with the Disclosing Party in the event that it elects to contest such disclosure or seek a protective order with respect thereto and (c) in any event only disclose the exact Confidential Information, or portion thereof, specifically requested by the Required Disclosure.
4.4 No Licenses or Warranties for Confidential Information. All Confidential Information shall remain the property of the Disclosing Party. Except as otherwise expressly provided in this Agreement, no license under any intellectual property right is granted or implied by the conveying of Confidential Information to the Receiving Party. None of the Confidential Information which may be disclosed by the Disclosing Party shall
constitute any representation, warranty, assurance, guarantee, or inducement by the Disclosing Party of any kind and, in particular, with respect to the non-infringement of any intellectual property rights, or other rights of other Persons or of the Disclosing Party.
4.5 Injunctive Relief. In the event of a breach of this Section 4, the non-breaching party may have no adequate remedy at law and will be entitled to seek immediate injunctive and other equitable relief, without the necessity of showing actual money damages.
5. REPRESENTATIONS AND WARRANTIES.
5.1 From Provider. Provider makes the following representations and warranties to Operator, each of which is true and correct as of the Effective Date and shall continue to be true and correct at all times during the term of this Agreement:
(a) Authority. Provider has full right, power and authority to enter into this Agreement and to perform its obligations hereunder.
(b) Enforceable. Provider’s execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate action and this Agreement is enforceable against Provider in accordance with its terms.
(c) No Conflicting Agreements. Provider is not currently obligated, nor will it assume any future obligation, under any contract (including any license, covenant or commitment of any nature) or other agreement, instrument or arrangement that conflicts with its material obligations under this Agreement.
(d) Rights. Provider has the right to grant to Operator access to the Services and the rights and licenses granted by Provider to Operator under this Agreement.
(e) No Infringement. The Provider IP does not and will not infringe or violate any United States copyright, trade secret, patent, trademark or other proprietary right of any Person.
5.2 From Operator. Operator makes the following representations and warranties to Provider, each of which is true and correct as of the Effective Date and shall continue to be true and correct at all times during the term of this Agreement:
(a) Authority. Operator has full right, power and authority to enter into this Agreement and to perform its obligations hereunder.
(b) Enforceable. Operator’s execution, delivery and performance of this Agreement have been duly authorized by all necessary corporate or company action and this Agreement is enforceable against Operator in accordance with its terms.
(c) No Conflicting Agreements. Operator is not currently obligated, nor will it assume any future obligation, under any contract (including any license, covenant or commitment of any nature) or other agreement, instrument or arrangement that conflicts with its material obligations under this Agreement.
(d) Rights. Operator has the right to grant to Provider the rights and licenses granted by Operator to Provider under this Agreement.
(e) No Infringement. The Operator Promotional Materials do not and will not infringe or violate any United States copyright, trade secret, patent, trademark or other proprietary right of any Person.
5.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES WHATSOEVER, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
6. INDEMNIFICATION; LIABILITY LIMITS.
6.1 Limitation on Liability. PROVIDER SHALL NOT BE LIABLE TO OPERATOR FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) RELATED TO THIS AGREEMENT OR THE SERVICES OR RESULTING FROM OPERATOR’S USE OR INABILITY TO USE THE SERVICES, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF PROVIDER HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
6.2 Limitation on Recovery. Subject to Provider’s indemnification obligations as expressly provided by this Agreement, under no circumstances shall Provider’s liability to Operator under or in connection with this Agreement exceed fifty percent (50%) of the amount paid by Operator to Provider as Golf Fees under this Agreement.
(a) Provider’s Indemnity. Provider shall defend, indemnify, and hold harmless Operator and Manager (each, a “Operator Indemnified Party”) from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, fees, costs, and expenses of any kind, including reasonable attorneys’ fees, (collectively, “Losses”) arising out of any third-party claim, suit, action, or proceeding (each, a “Third-Party Claim”) related to or arising from any actual or alleged breach or non- fulfillment of any representation, warranty, covenant, agreement, or obligation of Provider contained in this Agreement.
(b) Operator’s Indemnity. Operator shall defend, indemnify, and hold harmless Provider, Provider’s Affiliates and licensors, and their respective managers, directors, officers, employees, and agents (each, a “Provider Indemnified Party”) from and against all Losses arising out of any Third-Party Claim related to or arising from (i) any actual or alleged breach or non-fulfillment of any representation, warranty, covenant, agreement, or obligation of Operator contained in this Agreement, (ii) the Operator’s negligence, (iii) the Operator’s violation of applicable law in the conduct of the Operator’s Business, (iv) the actions or inactions of Operator’s employees and agents, (v) any Course, or (vi) golfers playing any Course, including Course conditions.
(c) Indemnification Procedures. A party seeking indemnification hereunder (the “Indemnified Party”) shall promptly notify the party from whom it is seeking indemnification (the “Indemnifying Party”) upon becoming aware of a Third-Party Claim with respect to which the Indemnifying Party is obligated to provide indemnification hereunder (“Indemnified Claim”). The Indemnifying Party shall promptly assume control of the defense and investigation of the Indemnified Claim, with counsel of its own choosing reasonably acceptable to the Indemnified Party, and the Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection therewith, in each case at the Indemnifying Party’s sole cost and expense. The Indemnified Party may participate in the defenseof such Indemnified Claim, with counsel of its own choosing and at its own cost and expense. The Indemnifying Party shall not settle any Third-Party Claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed). If the Indemnifying Party fails or refuses to assume control of the defense of an Indemnified Claim, the Indemnified Party shall have the right, but not obligation, to defend against such Indemnified Claim, including settling such Indemnified Claim after giving notice to the Indemnifying Party, in each case in such manner and on such terms as the Indemnified Party may deem appropriate. Neither the
Indemnified Party’s failure to perform any obligation under this Section 6.3 nor any act or omission of the Indemnified Party in the defense or settlement of any Indemnified Claim shall relieve the Indemnifying Party of its obligations under this Section 6.3, except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result thereof.
(d) Sole Remedy. Provider’s performance under this Section 6.3 shall be Operator’s sole and exclusive remedy in the event of infringement or misappropriation by any Provider IP of any copyright, patent, trademark, trade secret or any other intellectual property rights of any third party.
(e) Notice of Infringement. During the term of this Agreement, Provider and Operator shall give each other prompt written notice of any act of infringement related to the intellectual property of the other of which Provideror Operator, as the case may be, has knowledge.
7. TERM AND TERMINATION.
7.1 Term. This Agreement will be effective for the term as defined in the Golf Course Distribution Agreement.
7.2 Termination. A party as identified below in this Section 7.2 shall have the right to terminate this Agreement upon the occurrence of any of the following events:
(a) Event of Default. Either party shall have the right to terminate this Agreement if (i) the other party violates any material provision of this Agreement and such violation, if capable of being cured, is not cured within thirty (30) days after the breaching party receives written notice of the alleged violation from the non- breaching party that explains in reasonable detail the nature of the alleged violation; or (ii) if the other party (A) terminates or suspends its business, (B) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute that is not dismissed within 90 days from commencement, (C) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (D) winds up or liquidates, voluntarily or otherwise other than as part of the sale or other transfer of a Course or the Operator’s Business (each of the foregoing events in this Section 7.2(a) being an “Event of Default”); or
(b) Inability to Provide Services. Provider may terminate this Agreement, in whole or in part, without liability for such termination by providing Operator thirty (30) days’ prior written notice of termination if Provider determines that it cannot continue to provide any of the Services for any reason.
7.3 Effect of Termination.
(a) The expiration or earlier termination of this Agreement shall not release either party from liability to the other party which at the time of such expiration or termination shall have already occurred or which thereafter may occur in respect of any act or omission prior to such expiration or termination; nor shall the expiration or termination of this Agreement affect in any way the survival of any right, duty or obligation of either party which by the terms of this Agreement is to survive expiration or termination of this Agreement.
(b) Provider’s remittance obligations to Operator shall survive the expiration or earlier termination of this Agreement until all such amounts that Provider is obligated to remit to Operator are remitted in full.
(c) Operator’s obligation to pay fees to Provider for tee time inventory sold through the date of this Agreement’s expiration or earlier termination shall survive such expiration or earlier termination until all such amounts are paid to Provider in full.
(d) If Provider terminates this Agreement because of an Event of Default by Operator, Operator shall pay Provider within ten (10) days of demand the full current value of the Services that would have been rendered through the end of the Term as determined by Provider based on the annual current cash value of Services, if applicable. This remedy will be in addition to all other remedies available to Provider at law or in equity.
7.4 Sale of Course. In the event of a sale of the Course or all or substantially all of the Operator’s Business, Operator agrees to deliver appropriate documentation verifying the sale as soon as available to Provider, and to (a)(i) in the event of the sale of a Course or Courses which does not result in all Courses under the Golf Course Distribution Agreement being sold, obtain the agreement of the new Course owners or operators to enter into an agreement with Provider under the same terms as this Agreement or (ii) in the event of the sale of all Golf Courses, transfer the Agreement to the new Course owners or operators, or (b) pay the value of the fees that would have been payable to Provider as if the Services were provided through the end of the Term as determined by Provider based on the current cash value of such terminated Services, if applicable.
8. GENERAL PROVISIONS.
8.1 Notices. Any notice to be given under this Agreement shall be in writing and may be effected by personal delivery or by e-mail or facsimile that provides confirmation of delivery, or by next day delivery through Federal Express or other reputable, overnight courier service, in each case delivered or addressed to the address of the party as set forth in the Golf Course Distribution Agreement or such other address as a party may provide to the other in accordance with this section.
8.2 No Sublicense or Assignment. Neither this Agreement, nor any rights under this Agreement, may be sublicensed, assigned or otherwise transferred by Operator, in whole or in part, whether voluntarily, or by operation of law, without the prior written consent of Provider. Notwithstanding the foregoing, Operator may transfer: (a) the portion of the Agreement applicable to a Course to any Person that acquires a Course or (b) the entire Agreement to any Person that acquires all or substantially all of the Operator’s Business as described in Section 7.4. Provider shall have the right at any time to sell, assign or transfer all or a portion of its rights and obligations under this Agreement, without limitation. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
8.3 Independent Contractors. Each of the parties will operate as, and have the status of, an independent contractor in performing this Agreement. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its Affiliates, whether express or implied, or to bind the other party or its Affiliates in any respect whatsoever.
8.4 Governing Law. This Agreement shall be governed by and construed under, and the legal relations between the parties hereto shall be determined in accordance with, the laws of the State of Texas, without giving effect to such state’s conflicts of law principles. The parties hereby submit to the personal jurisdiction of, and agree that, any legal proceeding with respect to or arising under this Agreement shall only be brought in federal or state courts located in Dallas, Texas.
8.5 Severability. If any provision of this Agreement or portion thereof is determined by a court of competent jurisdiction, or declared under any law, rule or regulation of any government having jurisdiction over the parties hereto, to be invalid, illegal or otherwise unenforceable, then such provision will, to the extent permitted by the court or government not be voided but will instead be construed to give effect to its intent to the maximum extent permissible under applicable law, and the remainder of this Agreement will remain in full force and effect according to its terms.
8.6 Entire Agreement; Modification; Waiver. This Agreement constitutes the entire agreement of the parties concerning its subject matter and supersedes all prior or contemporaneous, written or oral negotiations, correspondence, understandings and agreements, between the parties respecting the subject matter of this Agreement. No supplement, modification or amendment to this Agreement shall be binding unless evidenced by a writing signed by the party against whom it is sought to be enforced. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.