PLEASE READ VERY CAREFULLY. THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND Chain Staking LLC d/b/a Chainflow (“VALIDATOR”). BY DELEGATING ANY VALIDATION RIGHTS TO THE VALIDATOR (OR, IN OTHER WORDS, "BONDING" ANY SKALE TOKENS TO THE PUBLIC KEY ASSOCIATED WITH THE VALIDATOR) ON THE SKALE NETWORK, YOU WILL BE CONSENTING TO BE BOUND BY, ASSENTING TO THE TERMS AND CONDITIONS OF, MAKING THE REPRESENTATIONS AND WARRANTIES SET FORTH IN, AND WILL BECOME A PARTY TO, THE BELOW STAKING SERVICES AGREEMENT.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE STAKING SERVICES AGREEMENT, OR IF ANY OF THE REPRESENTATIONS AND WARRANTIES SET FORTH THE STAKING SERVICES AGREEMENT IS INACCURATE AS APPLIED TO YOU, YOU MUST NOT DELEGATE ANY VALIDATION RIGHTS TO THE VALIDATOR.
STAKING SERVICES AGREEMENT
This Staking Services Agreement (this “Agreement”) is being entered into between you (the “User” or “you”) and Chain Staking LLC d/b/a Chainflow (“Validator”, and together the “Parties”). Please note that this Agreement will, automatically and without further action of either of the Parties, become effective upon you Delegating any Validation Rights to the Validator.
This section is included for convenience of reference only, as a partial summary of certain public sources of information published by third parties, and the Validator has not undertaken to and does not assume any obligation to independently investigate or verify the facts, circumstances, events, and conditions described herein or therein or to provide updates hereto to reflect later events. The statements and information herein are not intended to be relied upon by any Person, whether as an accurate or complete statement of facts or otherwise, or to serve as representations, warranties or guarantees made by the Validator.
A. SKALE is an Ethereum-compatible network (the “Skale Network”) with a leaderless consensus designed to run on an uncapped number of independent nodes, each of which will be providing resources to multiple high performance decentralized elastic blockchains. The Skale Network is a proof-of-stake (POS) network that utilizes a work token.
B. The Validator is an early validator on the Skale Network, and User and the Validator have agreed to enter into a staking services agreement (this “Agreement”), which will, automatically and without further action of either of the parties, become effective upon a Skale Network user delegating any validation rights to the Validator.
C. SKALE Tokens (the “Tokens”) are the native staking/governance token on the Skale Network. Each Token represents a limited license for the owner to validate and propose the addition of blocks to the SKALE blockchain ("Validation Rights").
D. The Validator operates the software and infrastructure necessary to run a Validating Node on the Skale Network. During the times that the Validator is selected on the Skale Network to run a Validating Node, the Validator wishes to provide services to the User by enabling the User to exercise its Validation Rights on the Skale Network through the Validator in exchange for Service Fees. The User is a holder of Tokens who wishes to Delegate Tokens to the Validator in order to be eligible to receive rewards and transaction fees by exercising its Validation Rights.
NOW, THEREFORE, in consideration of the mutual agreements contained below, User and the Validator hereby agree as follows:
The following terms shall have the meanings set forth below:
"AAA" has the meaning assigned to such term in Section 5.2.
"Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.
"Disputes" has the meaning assigned to such term in Section 5.1.
"Governmental Authority" means any nation or government, any state or other political subdivision thereof, any entity exercising legislative, judicial or administrative functions of or pertaining to government, including, without limitation, any government authority, agency, department, board, commission or instrumentality, and any court, tribunal or arbitrator(s) of competent jurisdiction, and any self- regulatory organization.
"hereof," "herein," "hereunder," "hereby" and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement.
"include(s)" and "including" shall be construed to be followed by the words "without limitation" unless the context requires otherwise.
"Laws" means all laws, statutes, legal requirements, ordinances, rules, rulings, regulations, judgments, injunctions, orders and decrees enacted, promulgated or issued by any Governmental Authority.
"or" shall be construed to be the "inclusive or" rather than "exclusive or" (i.e., shall be read as "and/or") unless the context requires otherwise.
"Organizational Documents" means the articles of incorporation, certificate of incorporation, charter, bylaws, articles of formation, certificate of formation, regulations, operating agreement, certificate of limited partnership, partnership agreement and all other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person, including any amendments thereto.
"Person" means an individual or legal entity or person, including a government or political subdivision or an agency or instrumentality thereof.
II. STAKING SERVICES
2.1 Services. Subject to the terms and conditions of this Agreement, during the times, if any, that the Validator is among the Persons selected on the Skale Network to operate a Validating Node, the Validator will use commercially reasonable efforts to operate the Validating Node in a manner intended to facilitate the exercise, through the Validating Node, of User's Validation Rights with respect to the Tokens of User, if any, that are Delegated to the Validator as of such times (such operation of the Validating Node, the “Services”) in exchange for a commission fee (the “Service Fees”).
2.2 Conditions Precedent to the Validator’s Obligations to Perform Services.
(a) The Validator shall not have any obligation to perform the Services at any time if any one or more of the following conditions precedent is not satisfied as of such time:
(i) the representations and warranties of the User set forth in Article III are accurate and complete as of all times on and after the date of this Agreement while User has Validation Rights that are Delegated to the Validator;
(ii) the Validator is included in the Persons selected to operate a Validating Node on the Skale Network; and
(iii) neither User's Delegation of its Validation Rights to the Validator, nor the Validator’s performance of Services for User, constitute, or would be reasonably expected to result in (with or without notice, lapse of time, or both) a breach, default, contravention or violation of any Law applicable to User or the Validator, or contract or agreement to which User or the Validator is a party or by which User or the Validator is bound, including this Agreement or any other agreement in place between User and the Skale Network, if any.
User acknowledges and agrees that the technologies and activities involved in the Skale Network are novel, experimental, and speculative, and that therefore there is significant uncertainty regarding the application of existing Law thereto. Accordingly, without limiting the generality of the foregoing or any other provision of this Agreement, circumstances under which one or more of the aforementioned conditions precedents may fail to be satisfied or the Validator have a claim against User for an improper Delegation include:
(x) that Tokens or one or more tokens involved in the Skale Network are determined under any potentially applicable Law to constitute securities and the activity of serving as a Validating Node therefore may require certain registrations, licenses, or permits not possessed by the Validator;
(y) that User is or becomes subject to sanctions (such as by having been added to the "OFAC list") imposed by any relevant Governmental Authority; and
(z) that under relevant anti-money laundering, know-your-customer or similar rules or regulations, the Validator is deemed to have a "money transmitter" or similar status, but cannot reasonably comply with the associated obligations due to the decentralized, open-source, permissionless design of the Skale Network.
(b) User acknowledges and understands that, due to the permissionless, decentralized design of the Skale Network:
(i) any Person holding Tokens can anonymously Delegate their Validation Rights to the Validator, and accordingly the Validator does not under ordinary circumstances have an ability to prevent any such Person from receiving the Services; and
(ii) the Validator may be unable to ascertain important information regarding User, including User's name, country of origin, country of residence, age, good standing, legal status, affiliations, entity type and criminal history. Accordingly, there may be periods of time during which one or more of the conditions described in clause "(a)" above is not satisfied, but the Validator is unaware of such fact and continues rendering Services to User.
(c) In the event that User could reasonably expect that any of the conditions described in clause "(a)" above is not satisfied prior to Delegating Validation Rights to the Validator, User shall not Delegate any Validation Rights to the Validator and, in the event that, after Delegating any Validation Rights to the Validator, User could reasonably expect that any of such conditions has ceased to be satisfied, User shall immediately revoke such Delegation.
(d) Without limiting the generality of Section 6.10, User acknowledges and agrees that the Validator shall not be deemed to have waived any of the conditions described in clause "(a)" above, or waived or released any claim, right, power, privilege or remedy related thereto, by virtue of providing Services to User while having no specific knowledge that such condition is not satisfied with respect to User, and may terminate its Services to User after learning of such non-satisfaction regardless of how long such condition has not been satisfied. User may be liable to the Validator to monetary or other damages in the event that User Delegates its Validation Rights to the Validator, or fails to revoke such a Delegation that was previously made, when any of the conditions described in clause "(a)" above is not satisfied.
Section 2.3 No Guarantee of Validating Node Status. There can be no guarantee or assurance that, and the Validator is not making any representation, warranty or promise to the effect that, the Validator will serve as a Validating Node at all or for any particular period of time. The Validator’s failure to become or remain a Validating Node shall not constitute a breach of any provision of this Agreement or otherwise give rise to any liability or obligation of the Validator to User.
Section 2.4 Fork Handling. The Skale Network, like other decentralized, open-source blockchains and blockchain protocols, may be subject to "forks." Forks occur when some or all Persons running the software clients for a particular blockchain adopt a new client or a new version of an existing client that: (a) changes the protocol rules in backwards-compatible or backwards-incompatible manner that affects which transactions can be added into later blocks, how later blocks are added to the blockchain, or other matters relating to the future operation of the protocol; or (b) reorganizes or changes past blocks to alter the history of the blockchain. Some forks are "contentious" and thus may result in two or more persistent alternative versions of the protocol or blockchain, either of which may be viewed as or claimed to be the legitimate or genuine continuation of the original. The Validator may not be able to anticipate, control or influence the occurrence or outcome of forks of the Skale Network, and does not assume any risk, liability or obligation in connection therewith. Without limiting the generality of the foregoing, the Validator does not assume any responsibility to notify User of pending, threatened or actual forks. The Validator will respond to any forks as the Validator determines in its sole and absolute discretion, and the Validator shall not have any obligation or liability to User if such response benefits the Validator to the detriment of User. Without limiting the generality of the foregoing, the Validator’s possible and permissible responses to a fork include, among others: (i) continuing to serve as a Validating Node on both chains; (ii) serving as a Validating Node only on one chain; (iii) ceasing to be a Validating Node on both chains; or (iv) switching from serving as Validating Node on one such chain to serving as a Validating Node on the other, or vice versa, based on various factors. In the event of a fork, it is possible (but not guaranteed) that the same number of Tokens/Validation Rights that were bonded/Delegated to the Validator on the original chain will by default be bonded/Delegated to the Validator on the forked chain. In the event that the Validator does not choose to support both chains, User's Validation Rights and Voting Rights may go unexercised on the chain the Validator does not support, and User may temporarily or permanently lose Tokens, rewards or transaction fees on the unsupported chain. User assumes full responsibility to independently remain apprised of and informed about possible forks, and to manage User's own interests in connection therewith, including by potentially retracting a Delegation to the public key of the Validator’s Validating Node on a fork that the Validator does not support.
Section 2.5 Selective Code Deference. Except as otherwise set forth in this Agreement, as between the Validator and User, the results of operation of the Skale Network shall be determinative of the rights and obligations of, and shall be final, binding upon and non-appealable by, each of the parties to this Agreement. Without limiting the generality of the foregoing, User acknowledges and agrees that the taking of any action or the exercise by the Validator of any right, power or privilege that is possible to be taken or exercised by a Validating Node on the Skale Network shall not constitute a breach, violation or contravention of this Agreement or any duty or obligation owed by the Validator to User, and that any portion of rewards, transaction fees or other awards distributed to the Validator by operation of the Skale Network constitute Service Fees and shall be the sole and exclusive property of the Validator, and User shall have no claim on, rights to or interests therein. Conversely, if there would otherwise be any legally binding contract or agreement between or involving User and the Validator that is implied by, or embodied in, the machine, assembly or other code involved in, or the results of operation of, the Skale Network that conflicts or is inconsistent in any respect with this Agreement, this Agreement shall prevail over such other contract or agreement.
III: REPRESENTATIONS AND WARRANTIES OF USER
User hereby represents and warrants to the Validator, as of the date of entering into this Agreement and as of each date that User has any Validation Rights that are Delegated to the Validator:
3.1 Status. If User is an individual, User is of legal age in the jurisdiction in which User resides and is of sound mind and body. If User is a business entity, User is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized, and has all requisite power and authority for a business entity of its type to carry on its business as now conducted.
3.2 Power and Authority. User has all requisite capacity, power and authority to accept the terms and conditions of this Agreement and to carry out and perform its obligations under this Agreement. This Agreement constitutes a legal, valid and binding obligation of User enforceable against User in accordance with its terms.
3.3 No Conflict; Compliance with Law. User entering into this Agreement and User's Delegation of its Validation Rights to the Validator does not constitute, and would not reasonably be expected to result in (with or without notice, lapse of time, or both) a breach, default, contravention or violation of any Law applicable to User, or contract or agreement to which User is a party or by which User is bound.
3.4 Persons Subject to Sanctions. User is not, and is not owned or controlled by, or acting on behalf of, any other Person who is, identified on any list of prohibited parties under any Law or by any Governmental Authorities, such as, for example, the lists maintained by the United Nations Security Council, the U.S. government (including the U.S. Treasury Department's Specially Designated Nationals list and Foreign Sanctions Evaders list), the European Union (EU) or its member states, and the government of User's home country. User is not, and is not owned or controlled by, or acting on behalf of, any other Person who is, located, ordinarily resident, organized, established, or domiciled in Cuba, Iran, North Korea, Sudan, Syria, the Crimea region (including Sevastopol) or any other country or jurisdiction against which the U.S. maintains economic sanctions or an arms embargo. User's Tokens are not derived from, and do not otherwise represent the proceeds of, any activities done in violation or contravention of any Law.
3.5 No Claim, Loan, Ownership Interest or Investment Purpose. User understands and agrees that neither User's Delegation of Validation Rights and Voting Rights to the Validator, nor the provision of Services hereunder by the Validator:
(a) represents or constitutes a loan or a contribution of capital to, or other investment in, the Validator;
(b) provides User with any ownership interest, equity, security, or right to or interest in the assets, rights, properties, revenues or profits of, or voting rights whatsoever in, the Validator;
or (c) creates or implies any fiduciary or other agency relationship between the Validator or any of its directors, officers, employees, agents or Affiliates and User or entitles User to any fiduciary duty or similar duty on the part any of the foregoing Persons.
User is not entering into this Agreement or Delegating Validation Rights or Voting Rights to the Validator for the purpose of making an investment with respect to the Validator or its securities, but solely wishes to receive the Services from the Validator. User understands and agrees that the Validator will not accept or take custody over any rewards or transaction fees on behalf of User, and has no responsibility or control over whether the Skale Network distributes rewards or transaction fees to User. The Validator’s sole obligation under this Agreement is to perform the Services, upon the terms and conditions set forth in this Agreement, which may, but is not guaranteed to, result in User receiving rewards and transaction fees directly through the operations of the Skale Network.
3.6 Non-Reliance. User is knowledgeable, experienced and sophisticated in using and evaluating the Skale Network and similar technologies. User has conducted its own thorough independent investigation and analysis of the Skale Network and the other matters contemplated by this Agreement in determining to Delegate any Validation Rights or Voting Rights to the Validator and enter into this Agreement, and has not relied upon any information, statement, omission, representation or warranty, express or implied, written or oral, made by or on behalf of the Validator in connection therewith.
IV: DISCLAIMER AND LIMITATIONS
4.1 No Consequential, Incidental or Punitive Damages. Notwithstanding anything to the contrary contained herein, the Validator shall not be liable to any Person, whether in contract, tort (including pursuant to any cause of action alleging negligence), warranty or otherwise, for special, incidental, consequential, indirect, punitive or exemplary damages (including but not limited to lost data, lost profits or savings, loss of business or other economic loss) arising out of or related to this Agreement, whether or not the Validator has been advised or knew of the possibility of such damages, and regardless of the nature of the cause of action or theory asserted.
4.2 Limitation of Liability. The Validator’s liability for damages under this Agreement shall in all cases be limited to, and under no circumstances shall exceed, the portion of Service Fees actually received by the Validator that demonstrably arose by virtue of the User's particular Delegation of its particular Validation Rights to the Validator.
V: DISPUTE RESOLUTION
5.1 Agreement to Binding, Exclusive Arbitration. Except as set forth in Section 5.5(b), all claims, disputes and controversies directly or indirectly arising out of or in connection with or directly or indirectly relating to this Agreement or any of the matters or transactions contemplated by this Agreement (for the avoidance of doubt, including any claim seeking to invalidate, or alleging that, all or any part of this Agreement is unenforceable, void or voidable) (such claims, disputes and controversies, collectively, "Disputes") shall be finally settled by binding arbitration, rather than in court. The arbitrator, and not any federal, state or local court, agency or other Governmental Authority, shall have exclusive authority to resolve all Disputes. The parties hereby acknowledge, represent and warrant that they understand that: (a) there is no judge or jury in arbitration, and, absent this mandatory provision, the parties would have the right to sue in court and have a jury trial concerning Disputes; (b) in some instances, the costs of arbitration could exceed the costs of litigation; (c) the right to discovery may be more limited in arbitration than in court; and (d) court review of an arbitration award is limited. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Notwithstanding anything to the contrary set forth in this Section 5.1, either party may seek relief in a small claims court for Disputes within the scope of that court's jurisdiction.
5.2 Arbitration Procedures. Either party may initiate an arbitration proceeding by delivering written notice to the other party, whereupon the parties shall reasonably cooperate to select an arbitrator and submit the relevant Dispute to such arbitrator. In the event the parties are unable to agree on the selection of an arbitrator within 15 days from the filing of a demand for arbitration, the AAA shall appoint the arbitrator. Any such arbitration shall be administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the "AAA"), excluding any rules or procedures governing or permitting class actions. The Validator will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and reasoned, and binding on the parties, and may be entered by any party as a judgment in any court of competent jurisdiction.
5.3 Seat of Arbitration. The seat of arbitration shall be Cheyenne, Wyoming. The Delegator may choose to have the arbitration of any Dispute conducted by telephone, based on written submissions, or at a mutually agreed location; provided, however, that the Validator may opt to transfer the venue of any arbitration hearing to Wyoming, Wyoming in the event that it agrees to pay any additional fees or costs User may reasonably incur as a result of the change in venue, as determined by the arbitrator, and, subject to the foregoing, User hereby agrees to submit to the personal jurisdiction of any federal or state court in Laramie County, Wyoming, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
5.4 Confidentiality of Arbitration. Except to the extent necessary to enforce their respective rights under this Agreement or as otherwise required by applicable Law, the parties undertake to maintain confidentiality as to the existence and events of the arbitration proceedings and as to all submissions, correspondence and evidence relating to the arbitration proceedings. This provision shall survive the termination of the arbitral proceedings.
5.5 Class Action Waiver.
The parties agree that any arbitration or other permitted action with respect to any Dispute shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. EACH PARTY AGREES THAT SUCH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN SUCH PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
If any court or arbitrator makes a final, binding and non-appealable determination that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void with respect to any Dispute that would thus be required to be resolved by arbitration on a class basis, and the parties shall be deemed to have not agreed to arbitrate such Dispute. In the event that, as a result of the application of the immediately preceding sentence or otherwise, any Dispute is not subject to arbitration, the parties hereby agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Wyoming, Wyoming and to accept service of process by mail with respect to such Dispute, and hereby waive any and all jurisdictional and venue defenses otherwise available with respect to such Dispute.
6.1 Governing Law. This Agreement shall be governed in all respects, including as to validity, interpretation and effect, by the laws of the State of Wyoming, without giving effect to its principles or rules of conflict of laws, to the extent such principles or rules are not mandatorily applicable by statute and would permit or require the application of the laws of another jurisdiction.
6.2 Successors and Assigns.
This Agreement shall inure to the benefit of the parties, and their respective permitted successors, permitted assigns, permitted transferees and permitted delegates and shall be binding upon all of the foregoing persons and any Person who may otherwise succeed to any right, obligation or liability under this Agreement by operation of law or otherwise.
User shall not share or provide a copy of, or transfer to, any Person the private key associated with any Tokens with respect to which Validation Rights are Delegated to the Validator without notifying such Person that such Person shall be bound by and become a party to this Agreement by virtue of making any use of such private keys while such Delegation remains in effect.
Except as set forth in Section 6.2(a), no rights, obligations or liabilities of User may be assigned, transferred or delegated to any Person without the prior written consent of the Validator. The Validator may freely assign, transfer or delegate its rights, obligations and liabilities under this Agreement to the maximum extent permitted by applicable Law.
6.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
6.4 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, inoperative or unenforceable for any reason, the Validator shall have the right to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consumed as originally contemplated to the fullest extent possible.
6.6 No Partnership and No Agency or Implied Duties. Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute, a partnership, association, joint venture or other co-operative entity between any of the parties. Nothing in this Agreement and no action taken by the parties pursuant to this Agreement shall constitute, or be deemed to constitute, either party the agent of the other party for any purpose or to owe the other party any agency, bailment, trust or other implied duties, including any fiduciary duty. No party has, pursuant to this Agreement, any authority or power to bind or to contract in the name of the other party.
6.7 Publications and Notifications, Fees and Expenses. The parties shall agree to any press release or publication that jointly involves the names, brands or officers of both parties. Written correspondence and notifications between the parties, whether as a result of a dispute or otherwise intended to be official correspondence, may be email or common forms of social media (Skype, Slack, WhatsApp) at any applicable address or username provided by such party to the other. Each party shall be solely liable for all of its own fees, costs and otherwise in connection with this Agreement and any future dealings between the parties and/or future publications regarding the parties.
6.8 Force Majeure. The Validator shall not incur any liability or penalty for not performing any act or fulfilling any obligation hereunder by reason of any occurrence that is not within its control (including any provision of any present or future law or regulation or any act of any Governmental Authority, any act of God or war or terrorism, or the unavailability, disruption or malfunction of the Internet, the World Wide Web or any other electronic network the Skale Network or any aspect thereof, or any consensus attack, or hack, or denial-of-service or other attack, on the Skale Network or any aspect thereof, or on the software and infrastructure that enables the Validator to operate the Validating Node.), it being understood that the Validator shall use commercially reasonable efforts, consistent with accepted practices in the industries in which the Validator operates, as applicable, to resume performance as soon as reasonably practicable under the circumstances.
6.9 Amendments. This Agreement may only be amended, modified, altered or supplemented by the Validator, who reserves the right to determine the form and means of providing notifications to User, and User agrees to receive legal notices electronically if the Validator so chooses. The Validator may revise this Agreement from time to time and the most current version of this Agreement will be posted on the Validator website.
Section 6.10 No Waiver. No failure on the part of any Person to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Person in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. No Person shall be deemed to have waived any claim arising out of this Agreement, or any power, right, privilege or remedy under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of such Person; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.