ADDITIONAL TERMS AND CONDITIONS
FOR SALE OF EQUIPMENT & SERVICES
- AGREEMENT. These additional terms and conditions of sale (“Additional Terms and Conditions”) are incorporated by reference and made a part of the quote/order form (“Order”) as if fully set forth herein. The agreement between WAND Corporation (“WAND”) and the Customer is represented by the following: (i) the Order, including any terms and conditions contained therein; (ii) these Additional Terms and Conditions; (iii) the SLA (as defined below), and, if applicable, (iv) any Master Agreement for Equipment & Services entered into by and between the parties (collectively, the “Agreement”.) This Agreement supersedes any previous agreements for WAND equipment and/or services except for any existing Master Agreement for Equipment & Services, if applicable. If there is a conflict among these terms, the terms shall have the following order of priority: (i) first, the Order; (ii) second, the Additional Terms and Conditions; (iii) third, the SLA and (iv) last, the Master Agreement for Equipment & Services, if applicable. Any purchase order or similar document issued by Customer shall be deemed to have been issued for its own purchasing, accounting, and other record keeping purposes only and shall not be deemed to be part of this Agreement, unless expressly agreed to in writing by WAND.
- SERVICES; EQUIPMENT; CUSTOMER RESPONSIBILITIES; INSTALLATION; USE, OWNERSHIP AND LICENSE RIGHTS
2.1 Services. WAND shall provide, and Customer shall pay for, the Services identified in the applicable Order (“Services”). WAND shall provide the Services in accordance with the Service Level Agreement available at http://www.wandcorp.com/sla (“SLA”) at the Location(s) identified in the Order (“Location(s)”). An Order is binding upon executed by Customer and WAND. WAND may, with a reasonable notice period, change the SLA from time to time, however, any change will not materially reduce the amount or quality of Services that Customer receives without the Customer’s written consent. Any change requests of Customer shall not be binding unless accepted by the WAND Project Manager. Any such changes may result in additional or increased charges, and you agree to pay such increased charges.
2.2 Equipment. Equipment may be ordered by Customer to receive Services (“Equipment”). Title and risk of loss transfer to Customer when Equipment is put into the possession of a carrier of WAND’s choosing and a contract for their transportation is made (FOB Origin). Customer will, in a timely manner, allow WAND to access and prepare the Location(s) identified on the Order as reasonably required to install and maintain the Equipment.
2.3 Limitation of Services. Except as specifically provided under the Order, Services will not include: (i) electrical work; (ii) deconstruction of existing facilities; (iii) providing or obtaining building or other permits or approvals; or (iv) internal data cabling. Any work that is provided by WAND that is beyond the scope of the Order will be considered additional Services that will require Customer to pay an additional fee at WAND’s then current hourly rate.
2.4 Customer Responsibilities. Customer is solely responsible for determining the suitability of Location(s) where Equipment is installed. Customer is responsible for all site preparations, internal data cabling and provision of utility services including electrical and Internet services, as WAND deems reasonably necessary. Customer will ensure that the Location(s) at which WAND installs or maintains Equipment is a suitable and safe working environment, compliant with OSHA and other applicable workplace safety laws, and free of any substance or material capable of posing an unreasonable risk to health or safety of WAND personnel. WAND has no obligation and will not be liable for refusing to perform work at a Location that, in WAND’s discretion, is not a suitable and safe working environment. WAND reserves the right to substitute like product for any installation that occurs greater than ninety (90) days from the date Customer signs the purchase agreement for the equipment. Customer shall provide WAND with immediate written notice, but in no event later than seven (7) days, of any known or suspected failure with respect to the Services or Equipment.
2.5 Standard Installation. Installation includes labor and material to install mounting brackets to a standard (non-tile) flat wall placement up to 10 feet in height. Installation does not include any required structural work for screen reinforcement. Tools and equipment such as specialized tile drill bits, ceiling mount installation and mounting requirements are additional. All cabling material, cable installation and uninstallation of existing menu boards are additional. Any material or labor outside the scope of standard installation may result in additional or increased charges.
2.6 Use, Ownership and License Rights.
2.6.1 To the extent that WAND provides any WAND IP to Customer through the Services, WAND hereby grants Customer a revocable non-exclusive license to use the WAND IP solely in conjunction with, or as part of, the Equipment. Customer agrees to use WAND IP only as specified in this Agreement and as may be further authorized or restricted in the Order. Without limiting additional restrictions in the applicable license, Customer may not:
2.6.1.1 otherwise copy, display, transfer, adapt, modify, or distribute (electronically or otherwise) WAND IP, except as WAND may authorize in the Equipment′s user documentation or in writing to Customer;
2.6.1.2 reverse assemble, reverse compile, otherwise translate, or reverse engineer WAND IP unless expressly permitted by applicable law without the possibility of contractual waiver;
2.6.1.3 sublicense or assign the license for WAND IP; or
2.6.1.4 lease WAND IP or any copy of it.
2.6.2 Customer may transmit to WAND certain intellectual property involving its brand identity, which may consist of Customer’s trademarks and/or design elements relating to its brand (“Customer IP”). Customer shall retain ownership of Customer IP at all times. All techniques, data, information, source code, reports, studies, or other tangible or intangible material produced as a result of the Services or prepared for Customer by WAND under this Agreement (collectively, “Work Product”) are the sole and exclusive property of WAND. Customer authorizes WAND to use and modify Customer IP to the extent necessary for WAND to provide Services to Customer. To the extent that Customer IP is incorporated in Work Product, Customer gives WAND a limited, non-exclusive, right and license to use, modify, and publish Customer’s IP only for purposes consistent with this Agreement. Customer’s license grant to WAND shall expressly limit WAND from using or publishing any Work Product containing Customer IP for any commercial use adverse to Customer or inconsistent with the purpose of this Agreement. All rights not explicitly granted are hereby reserved by Customer or WAND as the case may be.
2.6.3 Provided WAND has been paid in full, Customer shall own any final (compiled) creative work product created specifically as a work for hire by WAND for Customer. WAND will own all source code and raw (in process) work product but may license such to customer in a separate agreement.
- TERM AND TERMINATION
3.1 Term. Unless stated otherwise in the Order, the initial term for this Agreement shall be thirty-six (36) months from the earlier of: (i) thirty (30) days from the date the Equipment is shipped to Customer; or (ii) the date that the Equipment is installed (“Initial Term”). If during the initial or subsequent term Customer adds an additional Location(s) that Location shall be subject to a term that is coterminous with the then-current term, except if an additional Location is added with fewer than twelve (12) months remaining on the then-current term, the additional Location will have a 12-month term and all other Locations will be reset to a new coterminous 12-month term. At the end of each term, the Services will automatically renew for any and all Locations for a successive one (1) year term(s) at the current list price (“Subsequent Term”) unless either party terminates the Agreement with at least ninety (90) days prior written notice before the end of the then-current term. WAND reserves the right to modify the terms of this Agreement, including the charges for Services, for Subsequent Terms, provided that WAND notifies the Customer of such changes at least thirty (30) days prior to the commencement of any Subsequent Term. Customer shall be deemed to accept the alterations and changes if the Customer does not terminate the Services as provided in this Section. At the end of the initial term and on an annual basis thereafter, the monthly Services may increase by the greater of the increase in the Consumer Price Index (CPI) over a 12-month period, calculated by using the most recently published CPI and the CPI published 12 months earlier, or 3%.
3.2 Termination for Default. Either party may terminate the Agreement if the other party is in default of this Agreement and the defaulting party fails to remedy the default within thirty (30) days after written notice thereof by the non-breaching party. The default notice must contain a description of the details of the default.
3.3 Termination at a Single Location. Customer may terminate Services at a single Location upon thirty (30) days written notice if a Customer sells or transfers ownership of a Location, the new owner of the Location executes an agreement for similar Services with WAND and WAND agrees the new owner meets WAND’s credit criteria, requirements and policies.
3.4 Cancellation Prior to Installation. Customer may edit, cancel or reschedule shipments of Equipment or provision of Services with at least thirty (30) calendar dates written notice before the scheduled Equipment delivery date or the commencement of Services. If Customer edits, cancels or reschedules shipments of Equipment or provision of Services less than thirty (30) calendar days before the scheduled Equipment delivery date or the commencement of Services, Customer shall be responsible for a the greater of a 35% restocking fee or $2,500 liquidated damage in addition to all non-refundable Expenses and Travel incurred by WAND regardless of when Customer cancels Services.
3.5 Security Interest. Customer authorizes WAND to file the appropriate documents to perfect its security interest in the Equipment until WAND has been paid in full. WAND agrees to promptly remove such security interest following payment in full by Customer.
- PAYMENT AND TAXES
4.1 Proration and Billing Cycle. The first month of Service is prorated to reflect the number of days Customer receives Services for the first month. WAND invoices Customers one (1) month in advance.
4.2 Late Payments. Payment is due within thirty (30) days of the invoice date. Late payments will incur interest at the lesser of 1.5% per month (18% annum) or the maximum amount allowed under applicable law. WAND may disable, limit, modify, or cease Services for any Customer that is over 30 days past due on their account. WAND is entitled to and may recover all collection costs, filing, service and reasonable attorneys’ fees Customer.
4.3 S. Dollar Denominated. All prices are quoted in US dollars and Customer must pay all invoices, interest and other payments in US currency.
4.4 Taxes. Customer is liable for all taxes including but not limited to sales and use tax, customs, duties or any other taxes related to Services, License and Equipment. The price of any fees, Equipment and Service being provided, including any installation and maintenance fees, do not include any federal, state, or local taxes, such as, but not limited to, taxes on manufacture, sales, gross income, receipts, occupation, use, or similar taxes. Where applicable, such tax or taxes is payable by Customer. Customer agrees to indemnify, defend and hold harmless WAND from any sales and use or other taxes, fines or expenses due pursuant to this section.
4.5 Electronic Payments. All fees for the Services will be paid by credit card or other forms of electronic funds transfers by filling out the electronic payment agreement (“Payment Form”). Customers that wish to pay by a paper check will be charged a monthly fee for such service. Electronic Payments may be executed as soon as the billing date and may be executed on subsequent business days. In the case of an ACH Transaction being rejected for Non-Sufficient Funds (NSF), WAND may at its discretion attempt to process the charge again within thirty (30) days. Customer agrees to an additional $100.00 charge for each attempt returned NSF which will be initiated as a separate transaction from the authorized recurring payment. Customer acknowledges that the origination of ACH transactions must comply with the provisions of U.S. law. Customer certifies that Customer is the authorized user of this credit card/bank account and will not dispute these scheduled transactions with Customer’s bank or credit card company provided that the transactions correspond to the terms indicated on the Payment Form.
4.6 Down Payment and Scheduling Installation. Any downpayment set out in the Order must be received by WAND before WAND will schedule an install date unless otherwise approved by WAND in writing. WAND requires a minimum of twenty-one (21) days between receipt of down payment and scheduled install date. A Rush Service Fee and Expedited Shipping charge will be added for orders with less than 21 days’ notice to WAND. Customer agrees to provide 14 days’ notice to reschedule any installation date. Failure to provide the required 14-day notice will result in additional fees. Additional fees may apply if the installation site is located outside of the contiguous 48 states. Shipping and taxes on orders are estimates only. Customer agrees to pay the actual shipping and taxes on invoices presented by WAND.
- CONFIDENTIALITY
5.1 Confidential Information. In connection with this Agreement, WAND and Customer may each have access to confidential or proprietary information of the other party that is subject to reasonable limitations and restrictions that are intended to maintain the secrecy and confidentiality of such information. “Confidential Information” means any information supplied by or obtained from one (1) party (“Discloser”) to or by the other (“Recipient”): (i) related to or as a result of this Agreement or the subject matter hereof that is marked or designated at the time of disclosure as Confidential Information or (ii) WAND’s method of providing Services, business processes, pricing information, and techniques. The Recipient shall: treat the Confidential Information of the Discloser as secret and confidential; and except as permitted by this Agreement, not disclose any Confidential Information in any way to any third party without the consent of the Disclosing Party nor to any employee of the Recipient except as is necessary in the performance of obligations under this Agreement; and require any third party to whom Confidential Information is disclosed to enter into a written confidentiality and non-disclosure agreement no less restrictive than this Agreement. Notwithstanding its obligations of confidentiality in this Agreement, the Recipient may disclose the Discloser’s Confidential Information to the extent necessary to comply with a subpoena or court order or as otherwise required by applicable law. All documents and other materials containing Confidential Information will be returned upon demand at any time provided, however, that WAND may maintain one (1) copy of said documents and other materials for file retention purposes.
5.2 What is Not Confidential Information. The term Confidential Information does not include information already in a Party’s possession before disclosure pursuant to this Agreement, information which is in the public domain outside a violation of this Agreement; and information which comes into a Party’s possession through a means outside of and not subject to this Agreement.
5.3 Use of Customer Information. In connection with the Services, WAND may have access to data processed by Customer through the Services or Equipment (collectively “Transactional Data”). WAND may use such Transactional Data to the extent such use is required to provide the Services or as otherwise permitted by this Agreement. WAND may also provide Transactional Data to a third party per Customer’s request, to maintain the security and integrity of the Services and WAND’s networks, in aggregate and non-identifiable form to provide Services, and to facilitate or confirm WAND’s compliance with its obligations.
5.4 Disclosure Notification Laws. Customer must notify WAND immediately of any suspected breach in the security or integrity affecting Customer’s access to the Services, any suspected breach in the security or integrity to the Services or WAND’s networks, or any suspected breach in security or integrity in Transactional Data. To the extent any applicable law requires Customer to notify other persons or entities of any suspected breach in security or data integrity involving the personal or Transactional Data of such persons or entities (such laws being “Disclosure Notification Laws”), Customer shall be wholly responsible for its compliance with such Disclosure Notification Laws. To the extent any such Disclosure Notification Laws obligate WAND to take any action or provide notification to any person as a consequence of personal or Transactional Data, Customer shall reimburse WAND for all costs and expenses, including but not limited to reasonable attorneys’ fees, incurred by WAND as a result of any actions taken or notifications provided in compliance with Disclosure Notification Laws.
5.5 Aggregate Information. Customer agrees that WAND is permitted to access, use, and license to third parties statistical information, trends, analyses, metadata or other Transactional Data which may be derived or created from any of the foregoing provided that WAND: (i) does not disclose Customer’s identity or other information that allows others to infer Customer’s identity in any data, reports or analysis distributed or licensed to third parties; and (ii) does not interrupt Customer’s Service.
5.6 Franchisee Information. When Customer is a franchisee, Customer grants WAND explicit permission to disclose to the franchisor any necessary data, including but not limited to, case status and details, site status, pricing information, menu information, and account status.
- INTELLECTUAL PROPERTY
6.1 WAND Owned IP. WAND owns all intellectual property rights, including patents, copyrights, trademarks, trade secrets, and any other rights that may exist in the Services that may be provided under this Agreement, subject to the provisions of this Agreement. WAND shall exclusively own any and all WAND confidential or proprietary information, all source and object code, aggregated transactional data and any and all improvements to the Equipment, Services, Software or deliverables together “WAND IP”. Customer agrees not to disassemble, reverse compile or decompile, reverse engineer, modify, translate or prepare derivatives of the Equipment and/or Services. All rights not expressly granted to Customer are reserved by WAND. Customer’s contractors are not permitted to use access or maintain the Services, Equipment or deliverables without WAND’s written permission. If such permission is granted, such contractors are bound by the provisions in this Agreement and Customer shall be fully responsible to WAND for the contractor’s actions and or negligence.
6.2 Customer Provided IP. Customer may transmit to WAND certain intellectual property involving its brand identity, which may consist of Customer’s trademarks and/or design elements relating to its brand (“Customer IP”). Customer shall retain ownership of Customer IP at all times. All techniques, data, information, reports, studies, or other tangible or intangible material produced as a result of the Services or prepared for Customer by WAND under this Agreement (collectively, “Work Product”) are and shall remain the sole and exclusive property of WAND. Customer authorizes WAND to use and modify Customer IP to the extent necessary for WAND to provide Services to Customer. Customer grants WAND a limited, non-exclusive, right and license to use, reproduce, modify, and publish Customer’s IP incorporated into the Work Product for the purpose of delivering the Services and for other purposes consistent with this Agreement. Customer’s license grant to WAND shall limit WAND from using or publishing any Work Product containing Customer IP for any commercial use directly adverse to Customer or inconsistent with the purpose of this Agreement. All rights not explicitly granted are hereby reserved by Customer or WAND as the case may be.
- INDEMNIFICATION
7.1 Indemnification by WAND. WAND shall defend, indemnify, and hold harmless Customer from and against any actual or alleged third-party claims that the Services provided by WAND infringe any US patent, copyright, or trade secret that existed at the time of the Effective Date. Such indemnification will be subject to the limitations outlined in Section 8.3. WAND shall have sole control of its defense and all negotiations for settlement in any matter subject to indemnification under this Section. Notwithstanding the foregoing, however, WAND will have no obligation to indemnify any Customer for claims arising from: (i) use of the Services with Customer or other third-party products or Services; (ii) any modification of the Services or Equipment or deliverables not authorized by WAND in writing or those performed at Customer’s request; or (iii) claims or suits arising from the use or compilation of Transactional Data. WAND shall also indemnify, defend and hold harmless Customer from any claims of personal injury or death sustained by WAND’s employees or contractors directly arising from WAND’s negligence or willful misconduct.
7.2 Indemnification by Customer. Customer shall defend, indemnify and hold WAND, its affiliates, and their respective present, former, and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively “WAND Indemnities”) from and against any and all loss, claims, expenses, demands, liabilities, and debts, (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees), by or to all persons or entities without limitation, arising from or relating to: (i) Customer’s breach of this Agreement; (ii) violation by Customer of WAND’s policies (including, but not limited to, the SLA) confidentiality, or any applicable law or regulation; (iii) Customer’s misuse of the Equipment, Intellectual Property, Services or Customer IP; (iv) Customer’s breach of any representation or warranty contained herein; or (v) any allegation, claim or lawsuit asserted by a third party alleging WAND’s use, access or display of any information or materials referenced in section IX. and provided by or through Customer infringes on any intellectual property or other right(s) of any third party.
7.3 Notice of Claim. In connection with any claim that may be subject to indemnification under this Section, the party seeking indemnification (the “Indemnified Party”) shall provide the party providing indemnification (the “Indemnifying Party”) written notice of such claim promptly after receipt of it, provided, however, that the failure of an Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations except to the extent that the defense of such claim is prejudiced thereby. WAND’S DEFENSE AND INDEMNIFICATION OBLIGATIONS IN THIS SECTION CONSTITUTE THE ENTIRE LIABILITY AND OBLIGATION OF WAND, AND THE SOLE REMEDY OF CUSTOMER, WITH RESPECT TO ANY, ACTUAL OR ALLEGED, INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
- LIMITATIONS OF LIABILITY
8.1 Limitation of Liability. THE TOTAL LIABILITY OF WAND AND ITS AFFILIATES, SUBSIDIARIES, INSURER, THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FOR CLAIMS IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), SHALL BE LIMITED TO THE FEES PAID TO WAND UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTHS PRECEDING THE TIME IN WHICH THE CLAIM AROSE. NOTWITHSTANDING THE FORGOING, THE LIMITATION OF LIABILITY IN THE PRIOR SENTENCE SHALL NOT APPLY WITH RESPECT TO WAND’S INTELLECTUAL PROPERTY INDEMNITY OBLIGATIONS AS SET FORTH IN SECTION 7.1. IN NO EVENT, SHALL WAND BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA, LOSS OF USE, REPLACEMENT OR COVER COSTS, OR CLAIMS OF THIRD PARTIES) THAT MIGHT OCCUR AS A RESULT OF THE PERFORMANCE OR BREACH OF THE AGREEMENT OR IN ANY WAY ARISING OUT OF EVEN IF WAND WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM OF ANY KIND TO BE MADE AGAINST WAND MUST BE BROUGHT WITHIN THREE (3) MONTHS OF THE DATE THE DAMAGE GIVING RISE TO THE CLAIM OCCURRED.
8.2 Data Loss. Customer is solely responsible for the proper backup of data and security of its Internet connections and third-party providers, the Equipment and all cloud hosted and/or on-premise data at Customer Locations. Customer shall protect itself by following industry standard security protocols, tests, practices and laws and including, but not limited to making copies of data on a regular basis and by confirming proper backup that allows Customer to revert to a previous copy, should that ever become necessary.
8.3 Acceptance of Use of Artificial Intelligence (AI) in Creation of WAND IP. Customer acknowledges that artificial intelligence (AI) technologies may be used in the creation of WAND IP. Customer acknowledges that the laws governing the use of AI are evolving. Customer further acknowledges that certain rights of the parties may be affected depending upon whether and how AI was used in the creation of the WAND IP. With this understanding, Customer herein consents to the use of AI by WAND in the creation of WAND IP. WAND’s indemnification obligations set out in Section A, above, shall not apply to the extent that an intellectual property indemnification claim arises out of the use of AI by WAND in the creation of WAND IP. In addition, Customer waives any and all claims against WAND to the extent that any such claim arises solely out of the use of AI by WAND in the creation of WAND IP.
- MANUFACTURER’S LIMITED WARRANTY ON EQUIPMENT
9.1 Original Suppler of Equipment. WAND shall pass through to Customer any Equipment warranty WAND receives from the supplier of the Equipment, if any. If Customer discovers a defect in material or workmanship in the Equipment during the Term, Customer must promptly notify WAND who will assist Customer in notifying the applicable manufacturer of the claim. Beyond passing through any Equipment warranty from the supplier to Customer, unless Customer has purchased an extended service plan, WAND shall have no other warranty obligation to Customer. WAND MAKES NO WARRANTY INDEPENDENT OF THE WARRANTY, IF ANY, PROVIDED BY THE ORIGINAL MANUFACTURER. THE MANUFACTURER’S WARRANTY IS CUSTOMER’S SOLE AND EXCLUSIVE WARRANTY AND SUPERCEDES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.2 Access. Customer shall provide WAND ready and safe access to the Equipment and facilities as is necessary.
9.3 Service Updates. Bug patches, ongoing updates and similar “Service Updates” are provided with the Services at no additional charge. Customer shall provide WAND with immediate written notice, but in no event later than seven (7) days of any known or suspected failure with respect to the Services or Equipment.
- CUSTOMER’S REPRESENTATIONS. Customer represents and warrants that Customer has the full corporate power and authority to enter into this Agreement and to carry out the provisions hereof, and the individual signing this Agreement has authority to act on behalf of Customer and bind Customer to this Agreement. Customer further represents and warrants that it either owns or has the legal right(s) to license to WAND the rights to access, use, copy, process and display any information, data, image, intellectual property, trademark, copyright, code, font or other information provided by Customer to WAND to use or in any way access on any Equipment, hardware, or in conjunction with any software and/or Services in its performance under this Agreement on behalf of Customer. Customer also represents and warrants and is and shall remain in compliance with all applicable laws, codes, and regulations as they relate to Customers’ obligations herein.
- MISCELLANEOUS
11.1 Force Majeure. Except for monetary obligations, the performance by either party of any obligation under this Agreement shall be excused by natural disasters, floods, riots, fires, accidents, pandemics, wars, acts of terrorism, embargoes or injunctions, or restraints of government, or any other cause preventing such performance beyond the affected party’s reasonable control.
11.2 Licenses and Permits. Customer is responsible for obtaining all licenses, permits, consents, or approvals that may be necessary to install, possess, or operate the Services or Equipment.
11.3 Assignment. Except as provided in this Agreement, Customer may not assign or delegate its rights, obligations or duties under this Agreement without the prior written consent of WAND, such consent not to be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, successors, and assigns provided that the provisions concerning assignment and delegation contained in this Agreement are complied with.
11.4 Headings and Interpretation. No waiver by either party of any of the provisions of this Agreement shall be deemed to be a waiver of any other provision. Any waiver must be in writing and signed by the party against whom such waiver is sought to be enforced. If any provision of this Agreement is held invalid, unenforceable, the remainder of the Agreement shall continue in full force and effect. Neither party to this Agreement shall be deemed to be the drafter of this Agreement. The headings herein are for convenience only and are not part of this Agreement. The Order may be executed by electronically transmitted signature.
11.5 Notices. Any notice required or permitted to be given under this Agreement or governing law shall be given in writing and either hand delivered, sent by first-class mail, postage prepaid, or acknowledged email sent, to the other party at its address listed on the Order or applicable Master Services Agreement.
11.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. Any proceeding concerning this Agreement must be brought in a State or Federal court located in Hennepin County, Minnesota. Each party hereby irrevocably consents to the exclusive jurisdiction of such trial and appellate courts.
11.7 Credit Check. Customer consents to WAND’s search and analysis of Customer’s credit history with any credit or reporting company. If WAND determines that Customer fails to meet WAND credit guidelines, WAND reserves the right to require that adequate payment assurances be provided in line with WAND’s credit guidelines. Failure to provide such assurances within a reasonable time frame, as determined by WAND, may result in the termination of any installation and the Agreement.
11.8 Independent Contractor and Subcontractors. WAND and Customer are independent contractors and nothing contained in this Agreement places WAND and Customer in the relationship of principal and agent, master and servant, employee and employer, partners or joint ventures. WAND reserves the right to provide Services through subcontractors, and in such event, WAND shall be liable for the provision of the Services by its Subcontractors in accordance with this Agreement.
11.9 No Third-Party Beneficiaries. Nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any person or entity other than the parties hereto and their respective successors and permitted assigns.
11.10 Compliance with Laws. Customer shall comply with all applicable laws including but not limited to workplace safety and export control. Marketing. Customer agrees that during the Term of this Agreement, WAND may publicly refer to Customer, orally and in writing, as a Customer of WAND.
11.11 Counterparts and Electronic Signatures. This Order may be executed in any number of counterparts, each of which shall be deemed an original and all, when taken together, shall constitute one and the same instrument. The Order may be executed with electronic signatures, and each party acknowledges that such signatures are legally binding. Both parties further agree that the electronically stored copy of the Order is to be considered the true, complete, valid, authentic, and enforceable record of the Agreement.
11.12 Last Revised: These Additional Terms and Conditions were last revised on July 1, 2024.