deCervo Policies and End User License Agreement
Last Updated Date: September 1, 2018
The terms of this agreement (“Terms of Service”) govern the relationship between you and deCervo LLC and its affiliates (hereinafter “deCervo” or “Us” or “We”) regarding your use of deCervo’s games, websites and related services (the “Service”).
You can view deCervo’s Neural Data Policy here: https://decervo.com/NeuralDataPolicy.html
Before accessing or using the Service, including logging into and browsing any deCervo website or accessing a game, you must agree to these Policies. To log into and browse any deCervo website or access any deCervo game, you will be required to register an account on the Service (“Account”). By registering for an Account, you represent that you are age 13 or older and you understand and agree to these Policies. If you are younger than the age of 17, you represent that your legal guardian has reviewed and agreed to these Policies. If you access the Service from a Social Networking Site (“SNS”), such as Facebook, you shall comply with its terms of service/use as well as these Policies.
BY INSTALLING, USING OR OTHERWISE ACCESSING THE SERVICE, YOU AGREE TO THESE POLICIES. IF YOU DO NOT AGREE TO THESE POLICIES, PLEASE DO NOT INSTALL, USE OR OTHERWISE ACCESS THE SERVICE. USE OF THE SERVICE IS VOID WHERE PROHIBITED.
1.1. Grant of a Limited License to Use the Service
Subject to your agreement and continuing compliance with these Policies and any other relevant deCervo policies, deCervo grants you a non-exclusive, non-transferable, non-sublicensable, revocable limited license subject to the limitations below to access and use the Service for your own non-commercial purposes. You agree not to use the Service for any other purpose.
The following restrictions apply to the use of the Service:
- You shall not create an Account or access the Service if you are under the age of 13; You shall restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Service by minors. You are responsible for any use of your credit card or other payment instrument (e.g. paypal) by minors.
- You shall not create an Account using a false identity or information. You shall not use the Service if you have previously been removed by deCervo, or previously been banned from using the Service.
- You may create an Account for another person (“Another Person”) only if you are designated by Us as a manager account (“Manager”) on the Service. Another Person shall not be able to use Service until he/she has accepted the Policies.
- You shall use your Account only for non-commercial purposes; You shall not use the Service to advertise, or solicit, or transmit any commercial advertisements, including chain letters, junk or spam e-mail or repetitive messages to anyone;
Account Creation for You
When making an Account for yourself, you will be required to select a username and password (“Login Information”). You shall keep Login Information secure to ensure the security of your Account. You shall choose a username as part of Login Information that does not uniquely identify yourself (e.g., your name). If you choose to share Login Information with someone else then that person may be able to access your Account, including any User Content (see below “User Content”), Virtual Items and/or Merchandise (see “Virtual Items” and “Merchandise” below).
In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information, you must immediately notify deCervo and modify your Login Information. You are solely responsible for maintaining the confidentiality and anonymity of the Login Information, and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you. You are responsible for anything that happens through your Account.
deCervo reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates the third party’s rights.
Account Creation for Another Person
When making an Account for the express purpose of Another Person using the Service, or if We make an Account for you on behalf of Another Person to use the Service, you will also be required to select a password and username, thereby creating Login Information. This Login Information shall be subject to the same guidelines used to create Login Information for yourself (see “Account Creation For You”). You shall keep Another Person’s Login Information secure to ensure the security of his/her Account until conveying to Another Person what his/her Login Information is. Once Another Person uses the Service, he/she will be presented with these Policies before using the Service.
In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorized disclosure of the Login Information before delivery of Login Information to Another Person, you must immediately notify deCervo and modify Another Person’s Login Information.
Any use of the Service in violation of the following license limitations is strictly prohibited, can result in the immediate revocation of your limited license and may subject you to liability for violations of law (hereafter, “License Limitations”). You agree that you will abide by these License Limitations and not, under any circumstances, do the following:
- Engage in any act that deCervo deems to be in conflict with the spirit or intent of the Service or make improper use of deCervo’s support services.
- Use cheats, exploits, automation software, bots, hacks, mods or any unauthorized third-party software designed to modify or interfere with the Service, or Service experience
-m Modify or cause to be modified any files that are a part of the Service or any deCervo game without deCervo’s express written consent.
- Disrupt, overburden, or aid or assist in the disruption or overburdening of any computer or server (“Server”) used to offer or support the Service.
- Institute, assist, or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service.
- Attempt to gain unauthorized access to the Service, Accounts registered to others or to the computers, Servers, or networks connected to the Service by any means other than the user interface provided by deCervo, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of the Service.
- Post any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive.
- Post any information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content.
- Attempt to, or harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, group, including deCervo employees sand/or affiliates.
- Make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person, including without limitation a deCervo employee and/or affiliate.
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the Service or any deCervo game, or to obtain any information from the Service using any method not expressly permitted by deCervo.
- Solicit or attempt to solicit personal information from other users of the Service or collect or post anyone’s private information, including personally identifiable information (whether in text, image or video form), identification documents, or financial information through the Service.
deCervo reserves the right to determine what conduct it considers to be in violation of the rules of use or otherwise outside the intent or spirit of these Policies or the Service itself. deCervo reserves the right to take action as a result, which may include terminating your Account and prohibiting you from using the Service.
1.2. Suspension and Termination of Account and Service
WITHOUT LIMITING ANY OTHER REMEDIES, DECERVO MAY LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE ACCOUNTS OR ACCESS TO DECERVO SERVICES OR PORTIONS THEREOF IF YOU ARE, OR DECERVO SUSPECTS THAT YOU ARE, FAILING TO COMPLY WITH ANY OF THESE TERMS OF SERVICE, OR FOR ANY ACTUAL OR SUSPECTED ILLEGAL OR IMPROPER USE OF THE SERVICE, WITH OR WITHOUT NOTICE TO YOU. AAS A RESULT OF ACCOUNT TERMINATION OR LIMITATION, YOU CAN LOSE ANY BENEFITS, PRIVILEGES, EARNED ITEMS AND PURCHASED ITEMS ASSOCIATED WITH YOUR USE OF THE SERVICE, AND DECERVO IS UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY SUCH LOSSES OR RESULTS.
WITHOUT LIMITING OUR OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR GAMES AND SITES, AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE HOSTED CONTENT, AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT THEY ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES. ADDITIONALLY, WE MAY, IN APPROPRIATE CIRCUMSTANCES AND AT OUR SOLE DISCRETION, SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO MAY BE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
DECERVO RESERVES THE RIGHT TO TERMINATE ANY ACCOUNT THAT HAS BEEN INACTIVE FOR 180 DAYS.
deCervo reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point your license to use the Service or a part thereof will be automatically terminated. In such event, deCervo shall not be required to provide refunds, benefits or other compensation to users in connection with such discontinued Services. Termination of your Account can include disabling your access to the Service or any part thereof including any content you submitted or others submitted.
You may terminate your Account at any time and for by contacting deCervo support at support@deCervo.com informing deCervo that you wish to terminate your Account.
2.1. Games and Service
All rights, title and interest in and to the Service (including without limitation any games, titles, computer code, themes, objects, characters, character names, stories, dialogue, catch phrases, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, moral rights, documentation, in-game chat transcripts, character profile information, recordings of games played using a deCervo game client, and the deCervo game clients and server software) are owned by deCervo. deCervo reserves all rights, including without limitation, all intellectual property rights or other proprietary rights, in connection with its Service.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN THE ACCOUNT, EXCEPT AS IT RELATES TO PERSONAL HEALTH INFORMATION (see below “Personal Health Information” or “PHI”). YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO THE ACCOUNT ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF DECERVO, EXCEPT AS IT RELATES TO PHI. ANY PHI COLLECTED THROUGH THE SERVICE SHALL BE JOINTLY OWNED BY YOU AND DECERVO AND ACCESSIBLE THROUGH THE SERVICE BY ANY PERSON CONTAINING LOGIN INFORMATION.
2.3. Virtual Items
deCervo owns, has licensed, or otherwise has rights to use all of the content that appears in the Service. Notwithstanding any provision to the contrary herein, you agree that you have no right or title in or to any content that appears in the Service, including without limitation the virtual goods or currency appearing or originating in any deCervo game, whether earned in a game or purchased from deCervo, or any other attributes associated with an Account or stored on the Service.
3. USER CONTENT
3.1. Non-PHI User Content
3.2. PHI User Content
By using the Service, you are consenting to deCervo’s collection of your behavioral (“Behavioral Data”) and if applicable electroencephalography (“Neural Data”) data and metrics during gameplay. All Behavioral Data and Neural Data collected will be considered Personal Health Information (“PHI User Content) and held in confidence according to our Policies.
You and deCervo have co-ownership rights over the PHI User Content collected from use of the Service. Nothing in these Terms of Service is intended to restrict any rights that you may have to use and exploit your PHI User Content. deCervo has no obligation to monitor or enforce your intellectual property rights in or to your PHI User Content.
Your decision to use the Service is voluntary and you may stop at any time. At such time, you may download your PHI User Content from the Service. You may also notify deCervo to remove your PHI User Content from its Server and you may do so via email to firstname.lastname@example.org.
3.3. Content Screening
deCervo assumes no responsibility for the conduct of any user submitting any Non-PHI User Content or PHI User Content (hereafter, “User Content”), and assumes no responsibility for monitoring the Service for inappropriate content or conduct. We do not, and cannot, pre-screen or monitor all User Content. Your use of the Service is at your own risk. By using the Service, you may be exposed to User Content that is offensive, indecent or otherwise not in line with your expectations. You bear all risks associated with the use of any User Content available in connection with the Service.
At our discretion, our representatives or technology may monitor and/or record your interaction with the Service or communications (including without limitation chat text) when you are using the Service. By accepting into these Policies, you hereby provide your irrevocable consent to such monitoring and recording. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any Non-PHI User Content, including without limitation chat text or voice communications.
If at any time deCervo chooses, in its sole discretion, to monitor the Service, deCervo nonetheless assumes no responsibility for Non-PHI User Content and assumes no obligation to modify or remove any inappropriate Non-PHI User Content. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Non-PHI User Content.
3.4. License for Non-PHI User Content
You hereby grant to deCervo an irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way, your Non-PHI User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions of the Service.
You also hereby grant to deCervo the right to authorize others to exercise any of the rights granted to deCervo under these Terms of Service. You further hereby grant to deCervo the unconditional, irrevocable right to use and exploit your name, likeness and any other information or material included in any Non-PHI User Content and in connection with any Non-PHI User Content, without any obligation to you. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your Non-PHI User Content, regardless of whether your Non-PHI User Content is altered or changed in any manner.
3.5. License for PHI User Content
You hereby grant to deCervo an irrevocable, perpetual, transferable, fully paid-up, royalty-free, worldwide license (including the right to sublicense and assign to third party) and right to copy, reproduce, fix, adapt, modify, create derivative works from, manufacture, commercialize, publish, distribute, sell, license, sublicense, transfer, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way, your PHI User Content as well as all modified and derivative works thereof in connection with our provision of the Service, including marketing and promotions of the Service, as long as any uniquely identifiable personal information is stripped from such PHI User Content (hereafter, “Deidentification” or “Deidentified”).
You further hereby grant to deCervo the unconditional, irrevocable right to use and exploit any information or material included in any PHI User Content and in connection with any PHI User Content, without any obligation to you, as long as such PHI User Content is Deidentified. Except as prohibited by law, you waive any rights of attribution and/or any moral rights you may have in your Deidentified PHI User Content, regardless of whether your PHI User Content is altered or changed in any manner. .
3.5. User Interactions
You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the Service and/or deCervo games. deCervo reserves the right, but has no obligation, to become involved in any way with these disputes. You will fully cooperate with deCervo to investigate any suspected unlawful, fraudulent or improper activity, including, without limitation, granting deCervo access to any password-protected portions of your Account.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor.”
4. FEES AND PURCHASE TERMS
In the Service you may purchased, a limited, personal, non-transferable, non-sublicensable, revocable license to use (a) virtual currency, including but not limited to virtual cash or pitches, all for use in deCervo games (hereafter, “Virtual Currency”); (b) virtual in-game items (hereafter, y “Virtual Items”); and (c) other goods or services (“Merchandise”). You may also obtain a license to use Virtual Currency, Virtual Items or Merchandise by redeeming third party virtual currency, such as Facebook Credits.
deCervo may manage, regulate, control, modify or eliminate Virtual Currency Virtual Items and/or Merchandise at any time, with or without notice. deCervo shall have no liability to you or any third party in the event that deCervo exercises any such rights.
The transfer of Virtual Currency, Virtual Items and Merchandise is prohibited except where expressly authorized in the Service. Other than as expressly authorized in the Service, you shall not sell, redeem or otherwise transfer Virtual Currency, Virtual Items or Merchandise to any person or entity, including but not limited to deCervo, another user or any third party.
ALL PURCHASES AND REDEMPTIONS OF THIRD PARTY VIRTUAL CURRENCY MADE THROUGH THE SERVICE ARE FINAL AND NON-REFUNDABLE.
The provision of Virtual Items for use in deCervo games is a service provided by deCervo that commences immediately upon acceptance by deCervo of your purchase.
4.2. Payment of Fees
You agree to pay all fees and applicable taxes incurred by you or anyone using an Account registered to you. deCervo may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT DECERVO IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON, AND THAT YOU WILL NOT RECEIVE MONEY OR OTHER COMPENSATION FOR UNUSED VIRTUAL CURRENCY OR VIRTUAL ITEMS WHEN AN ACCOUNT IS CLOSED, WHETHER SUCH CLOSURE WAS VOLUNTARY OR INVOLUNTARY.
5. UPDATES TO THE SERVICE
You understand that the Service is an evolving one. deCervo may require that you accept updates to the Service and to deCervo’s games you have installed on your computer and/or device. You acknowledge and agree that deCervo may update the Service and deCervo games, with or without notifying you. You may need to update third party software from time to time in order to receive the Service and play deCervo’s games.
You acknowledge and agree that deCervo is solely responsible for any updates, maintenance and/or support and that no third-dparty has any responsibility for the same and that deCervo has no duty or obligation to provide any updates, maintenance and/or support.
6. DISCLAIMER OF WARRANTIES
WITHOUT LIMITING DECERVO’S LIABILITY UNDER SECTION 7 BELOW, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. DECERVO DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE GAME OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY; INDEMNIFICATION
DECERVO SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES (HOWEVER SUCH LOSSES ARE QUALIFIED), ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF SERVICE OR THE SERVICE ITSELF, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DECERVO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DECERVO SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO DECERVO IN ACCORDANCE WITH THESE POLICIES IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID ANYTHING TO DECERVO DURING SUCH TIME PERIOD, YOUR SOLE REMEDY (AND DECERVO’S EXCLUSIVE LIABILITY) FOR ANY DISPUTE WITH DECERVO IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above disclaimers and limitations may not apply to you. To the extent that deCervo may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth herein, the scope of such warranty and the extent of deCervo’s liability shall be the minimum permitted under such applicable law. IN PARTICULAR, NOTHING IN THESE TERMS OF SERVICE SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ANY NEGLIGENCE OR FRAUD OF deCervo.
You agree to indemnify, defend and hold deCervo harmless from any claim, demand, damages or other losses, including reasonable attorneys’ fees, asserted by any third-party resulting from or arising out of your use of the Service, or any breach by you of these Policies, however the foregoing does not apply if the infringement of rights is not attributable to your intentional or negligent behavior.
8. DISPUTE RESOLUTION AND LAW
You and deCervo agree that if any portion of these Policies is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the terms, which shall continue to be in full force and effect.
10. GENERAL PROVISIONS
deCervo may assign or delegate these Policies, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under the Policies without deCervo’s prior written consent, and any unauthorized assignment and delegation by you is ineffective.
10.2. Supplemental Policies
deCervo may publish additional policies related to specific services such as forums, contests or loyalty programs (“Supplemental Policies”). Your right to use such services is subject to those specific policies and these Policies.
10.3. Entire Agreement
10.4. No Waiver
The failure of deCervo to require or enforce strict performance by you of any provision of these Policies or failure to exercise any right under them shall not be construed as a waiver or relinquishment of deCervo’s right to assert or rely upon any such provision or right in that or any other instance.
The express waiver by deCervo of any provision, condition, or requirement of these Policies shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Except as expressly and specifically set forth in this these Policies, no representations, statements, consents, waivers, or other acts or omissions by deCervo shall be deemed a modification of these Policies nor legally binding, unless documented in physical writing, hand signed by You and a duly appointed officer of deCervo.
We may notify you via postings on www.deCervo.com, and via e-mail or any other communications means to contact information you provide to us. All notices given by you or required from you under these Policies shall be in writing and addressed to: deCervo Attn: Legal, 100 Crosby Street, Lerer Hippeau Ventures, Suite 204, New York NY 10012 . Any notices that you provide without compliance with this Section on Notices shall have no legal effect.
10.6. Equitable Remedies
You acknowledge that the rights granted and obligations made under these Policies to deCervo are of a unique and irreplaceable nature, the loss of which shall irreparably harm deCervo and which cannot be replaced by monetary damages alone so that deCervo shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you.
You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service or any deCervo game, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7 (if any).
10.7. Force Majeure
deCervo shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of deCervo, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond deCervo’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.