WAND EXPRESS EQUIPMENT & SERVICES AGREEMENT
This WAND Corporation Equipment & Services Agreement dated ___________ (“Effective Date”) is entered into between WAND Corporation, a Minnesota Corporation, with its principal place of business at 7575 Corporate Way, Eden Prairie, Minnesota 55344-2022 (“WAND”) and ___________________________________, a __________ corporation with a principal place of business at _______________________________________ (“Customer”). WAND and Customer are sometimes referred to herein individually as a “party” or collectively as “parties”.
Customer desires WAND to be the specified provider of the Equipment and/or Services described herein for its stores in the locations described in the Order subject to the terms of this Agreement. These Standard Terms and Conditions apply to each purchase for Equipment or Services by and between Customer and WAND Corporation (“WAND”).
ARTICLE I: SERVICES.
- 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)”). A Order becomes binding once executed by Customer. WAND may, without notice, change the SLA from time to time, however, any change will not materially reduce the amount or quality of Service that Customer receives.
- 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 Responsibilities. Customer is solely responsible for determining the type of Equipment, suitability of Location(s) where Equipment is installed and installing the Equipment.
- Use, Ownership and License rights
- 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:
- i) 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;
- ii) reverse assemble, reverse compile, otherwise translate, or reverse engineer WAND IP unless expressly permitted by applicable law without the possibility of contractual waiver;
iii) sublicense or assign the license for WAND IP; or
- iv) lease WAND IP or any copy of it.
- 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.
- 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.
ARTICLE II: TERM AND TERMINATION.
- Term. The initial term for this Agreement shall be one month (1) beginning on the date the Equipment is shipped to Customer. At the end of each term, the Services will automatically renew a successive one (1) month term(s) at the current list price (“Subsequent Term”) unless either party terminates the Agreement with at least ten (10) days prior written notice before the end of the then-current term. WAND may alter the terms of this Agreement, including the fee for Services, for Subsequent Terms if WAND provides Customer with thirty (30) days prior written notice of the alteration or change before 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 Article II (A) (Term and Termination).
- 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.
ARTICLE III: PAYMENT AND TAXES.
- Proration, Billing Cycle and Late Payments. Payment for Equipment is due at the time of order. The first month of Service is prorated to reflect the number of days Customer receives Services for the first month. WAND charges Customers on the first of the month for that month’s Service. WAND may disable, limit, modify, or cease service for any Customer that is over 14 days past due on their account. WAND is entitled to and may recover all collection costs, filing, service and reasonable attorneys’ fees Customer.
- U.S. Dollar Denominated. All prices are quoted in US dollars and Customer must pay all invoices, interest and other payments in US currency.
- 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.
ARTICLE IV: CONFIDENTIALITY.
- 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.
- Information which is not deemed Confidential. 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.
- Use of Customer Information. In connection with the Services, WAND may have access to data processed by Customer through the Services, Equipment or information maintained by Customer on its point of sale systems (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.
- 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 its reasonable costs and expenses including reasonable attorneys’ fees to the extent that WAND performs any such action or provides any such notification.
- 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.
- Franchisee Information. When Customer is a franchisee, Customer acknowledges that WAND has Customer’s permission to disclose to the franchisor data including but not limited to, case status and details, site status, pricing information, menu information, and account status.
ARTICLE V: INTELLECTUAL PROPERTY.
- WAND Owned IP. As between WAND and Customer, WAND owns or has the right to license to Customer all patent, copyright, trademark, trade secret and other intellectual property rights that may exist in the Services that may be provided under 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 you by WAND are reserved. 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.
- 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. 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.
ARTICLE VI: INDEMNIFICATION.
- Indemnity by WAND. WAND shall defend, indemnify and hold harmless Customer from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which Customer may suffer, incur or sustain resulting from any third party claim or suit alleging that the Services infringe any US patent, copyright or trade secret existing on the Effective Date. WAND shall have sole control of its defense and all negotiations for settlement in any matter subject to indemnification under this Article. 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.
- Indemnity 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; or (iii) Customer’s misuse of the Equipment, Intellectual Property, Services or Customer IP; Customer’s breach of any representation or warranty contained and 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 of through Customer infringes on any intellectual property or other right(s) of any third party.
- Notice of Claim. In connection with any claim that may be subject to indemnification under this Article, 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 ARTICLE STATE THE ENTIRE LIABILITY AND OBLIGATION OF WAND, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY, ACTUAL OR ALLEGED, INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
ARTICLE VII: LIMITATIONS OF LIABILITY.
- 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 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 VI. A. 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 SIX (6) MONTHS OF THE DATE THE DAMAGE GIVING RISE TO THE CLAIM OCCURRED.
- 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 on premise data at Customer Locations. Customer shall protect itself against loss by following industry standard security protocols and tests and laws and by 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.
- PCI Compliance Services Limitation of Liability. Customer is solely responsible and liable for Customer’s network security and compliance with PCI standards and practices and personally identifiable information, except as directly related to the Services. Customer is solely responsible for ensuring all requirements for PCI compliance. Customer hereby agrees to indemnify, defend and hold harmless WAND Indemnities in accordance with Article VI (Indemnification) for any and all damages arising from Customer’s interactions with third parties to maintain PCI Compliance.
ARTICLE VIII: LIMITED MANUFACTURER’S EQUIPMENT WARRANTY.
- Limited Manufacturers Equipment Warranty. 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, 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.
- Access. Customer shall provide WAND ready and safe access to the Equipment and facilities as is necessary.
- Service Updates. Bug patches, ongoing updates and similar “Service Updates” are provided with the Services at no additional charge.
ARTICLE IX: REPRESENTATIONS.
Customer represents and warrants that Customer has the right to enter into this Agreement 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 it is and shall remain in compliance with all applicable laws, codes and regulations as they relate to Customers obligations herein.
ARTICLE X: MISCELLANEOUS.
- 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, 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.
- 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.
- Whole Agreement, Waiver, Interpretation, Headings. This Equipment & Services Agreement supersedes any previous agreements for WAND equipment and/or services except for any existing Master Agreement for Equipment & Services. If there is a conflict among the terms, the terms shall have the following order of priority: first the Equipment & Services Agreement, then the Order 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. 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. This Order may be executed by electronically transmitted signatures.
- 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. 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.
- Notices. Any notice required or permitted to be given under this Agreement or governing law shall be given in writing and either hand delivered or sent by first-class mail, postage prepaid, to the other party at its address listed on the Order.
- 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.
- 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. WAND shall be fully liable for the provision of Services in accordance with this Agreement.
- 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.
- 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.