Terms and Conditions - Milwaukee, Waukesha, Menomonee Falls

These terms and conditons apply to the sale of goods and services by AW Technology Services LLC, a limited Liability Company, dba Wave2 Networks, with a local office located at N50 W13920 Overview Drive Menomonee Falls, WI 53051 to the Customer identified in the Quote which references this document.

SCOPE. These Standard Terms and Conditions apply to your (“Customer”) purchase of WAVE2 Network (“WAVE2”) products, such as hardware, software, software licenses, software subscriptions (“Product”), and services, such as onsite installation, onsite support, software maintenance, data backup and storage, remote management and cloud-based support (“Services”). By ordering WAVE2’s products/services described in the Quote, in the absence of a Master Services Agreement, Customer agrees to be bound by these Standard Terms and Conditions. In the event WAVE2 and Customer have previously executed a Master Services Agreement (“MSA”) the MSA supersedes these terms and conditions.
SERVICES, SUBSCRIPTIONS AND LICENSE TERM. Services purchased by customer shall be initiated and completed by WAVE2 within a reasonable period of time. Upon expiration or termination of any subscriptions or licenses, or the termination of the right to use a product purchased by Customer will immediately uninstall (if the Product is software) and cease to use the terminated Product and, upon WAVE2’s written request, immediately return such Product to WAVE2, together with all related documentation, and copies thereof. Upon written request of WAVE2, Customer will promptly certify in writing to WAVE2 that all copies of the Product have been returned, and that any copies not returned have been destroyed.
PAYMENT AND DELIVERY. Customer will pay WAVE2 all amounts due upon receipt of an invoice specifying the amounts due (“Fees”). All Fees payable are exclusive of sales, use, VAT, customs duties, excise, and any other applicable transaction taxes, which Customer will pay (excluding taxes based upon the net income of WAVE2). All Product is FOB shipping point. All Fees will be detailed in an Quote. Customer also agrees to pay or reimburse WAVE2 for all actual, necessary, and reasonable expenses incurred by WAVE2. WAVE2 will submit invoices to Customer for Fees and expenses upon delivery of Product, upon completion of the Services, or at stated intervals.
PROPRIETARY RIGHTS AND CONFIDENTIALITY
1. Proprietary Rights. WAVE2, or its Affiliates or licensors, retains all right, title and interest in any and all intellectual property, informational, industrial property and moral rights in the Product, and copies thereof. Except as otherwise expressly provided in license agreements provided to Customer by a Product vendor, WAVE2 neither grants nor otherwise transfers any rights of ownership in the Product to Customer. The Product is protected by applicable copyright and trade secrets laws, and other forms of intellectual property, informational and industrial property protection.
2. Product. WAVE2 reserves all rights in and to the Product not expressly granted. Customer may not disassemble or reverse engineer any software Product, or decompile or otherwise attempt to derive any software Product’s source code from executable code, except to the extent expressly permitted by applicable law, or provide a third party with the results of any functional evaluation, or benchmarking or performance tests on the Products, without WAVE2’s prior written approval. Customer may not (a) distribute the Product to any third party (whether by rental, lease, sublicense or other transfer), or (b) operate the Product in an outsourcing or service provider business to process the data of third parties. Additional usage restrictions may apply to certain third-party files or programs embedded in the Product as described in applicable installation instructions or release notes.
3. Services Deliverables Licensed Under This Agreement.
  - (a)License. Subject to the terms of this Agreement, WAVE2 grants Customer a perpetual, non-exclusive, non-transferable license to use and modify all programming, documentation, reports, and any other deliverables provided as part of the Services (“Deliverables”) solely for its own internal use.
  - (b) Pre-Existing License Agreements. Any software product provided to Customer by WAVE2 as a reseller for a third party, which is licensed to Customer under a separate software license agreement with such third party (such Agreement, an “SLA”), will continue to be governed by the SLA.
  - (c) Ownership. WAVE2 owns all right, title and interest in the Deliverables, including all intellectual property rights embodied therein. Nothing is intended to or will have the effect of vesting in or transferring to Customer rights in WAVE2’s or its Affiliates’ or its or their suppliers’ software, methods, know-how or other intellectual property, regardless of whether such intellectual property was created, used or first reduced to practice or tangible form in the course of performance of the Services, whether solely by WAVE2 or jointly with Customer.
4. Mutual Confidentiality. This Section sets out the terms for identification of information which is considered confidential and proprietary by a Party (the “Discloser”), and restrictions against use and disclosure of such Confidential Information after disclosure to the other Party (the “Recipient”).
  - (a)Definition. The term “Confidential Information” means all proprietary or confidential information that is disclosed to the Recipient by the Discloser, and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, source and executable code, flow charts, drawings, techniques, specifications, development and marketing plans, strategies, forecasts, and sales and marketing materials; (ii) the Product; and (iii) the terms of this Agreement. Confidential information does not include information that Recipient can show: (A) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (B) is or becomes a matter of public knowledge through no fault of Recipient; (C) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (D) is or was independently developed by or for Recipient.
  - (b) Disclosure Restrictions. For a period of three (3) years from the time of receipt of Confidential Information, Recipient may not disclose Confidential Information of Discloser to any third party without the prior written consent of Discloser.
  - (c) Proprietary Legends. Recipient may not remove, obscure, or alter any proprietary legend relating to the Discloser’s rights on or from any form of Confidential Information of the Discloser, without the prior written consent of the Discloser, except as expressly authorized in an Addendum.
ALLOCATION OF RISK
1. Manufacturer’s Warranties; Disclaimer of Additional Warranties. Manufacturer’s warranties, if any, for any Product will be passed through to Customer. WAVE2 MAKES NO WARRANTIES FOR AND PRODUCT, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
2. Waiver of Damages. EXCEPT FOR VIOLATIONS OF SECTION 4 AND THE MUTUAL INDEMNITIES PROVIDED UNDER 6.7, NEITHER PARTY, NOR ITS AFFILIATES AND LICENSORS, ARE LIABLE TO THE OTHER PARTY, OR ITS AFFILIATES OR LICENSORS, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCT (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST COMPUTER USAGE, AND DAMAGE OR LOSS OF USE OF DATA), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF THE NEGLIGENCE OF EITHER PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
3. Limitation of Liability. EXCEPT FOR VIOLATIONS OF SECTION 4 AND THE MUTUAL INDEMNITIES PROVIDED UNDER 7.3, WAVE2’S LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO PRODUCT IS LIMITED TO THE GREATER OF THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE APPLICABLE PRODUCT.
4. Injunctive Relief. Both parties acknowledge that their violation of Section 4 may cause the other Party immediate and irreparable harm. In the event of such breach, the breaching Party agrees that the other Party may seek, in addition to any and all other remedies available at law, an injunction, specific performance or other appropriate relief.
SERVICES-SPECIFIC TERMS.
1. All Necessary Rights. If, as part of WAVE2’s performance of Services, WAVE2 is required to use, copy or modify any third-party system (hardware, software or other technology) provided or licensed to Customer, then prior to WAVE2’s performance of such Services, Customer will acquire all rights necessary for WAVE2 to perform such Services.
2. Limited Warranty; Disclaimer of Additional Warranties. WAVE2 warrants that the Services performed will be of a quality conforming to generally accepted practices that are standard within the software services industry for a period of ninety (90) days from completion of the Services under the applicable Statement of Work. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. Use at Customer’s Risk. USE OF WAVE2’s SERVICES IS AT CUSTOMER’S SOLE RISK. WAVE2 DOES NOT WARRANT THAT THE SERVICES PROVIDED WILL BE UNINTERRUPTED, ERROR-FREE, FREE FROM UNAUTHORIZED INTRUSION, OR THAT WAVE2’S SERVICES OR SYSTEMS WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY; NOR DOES WAVE2 MAKE ANY WARRANTY AS TO THE RESULTS OR INFORMATION OBTAINED FROM USE OF ITS SERVICES. EXCEPT AS PROVIDED IN THE FIRST SENTENCE OF PARAGRAPH 6.2, WAVE2’S SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, COMPATIBILITY, SECURITY OR ACCURACY, ALL OF WHICH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
4. Customer’s Exclusive Remedy. CUSTOMER’S EXCLUSIVE REMEDY AND WAVE2’S ENTIRE LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO SERVICES UNDER THIS AGREEMENT WILL BE FOR WAVE2 TO RE-PERFORM ANY NON-CONFORMING PORTION OF THE SERVICES WITHIN A REASONABLE PERIOD OF TIME, OR IF WAVE2 CANNOT REMEDY THE BREACH DURING SUCH TIME PERIOD THEN REFUND THE PORTION OF THE FEE ATTRIBUTABLE TO SUCH NON-CONFORMING PORTION OF THE SERVICES. THIS WARRANTY WILL NOT APPLY TO THE EXTENT CUSTOMER, ITS CONTRACTORS OR AGENTS HAVE MODIFIED ANY DELIVERABLE, UNLESS OTHERWISE AUTHORIZED BY WAVE2 IN WRITING.
5. Responsibility for Signals.Customer shall have exclusive responsibility and liability for all signals Customer transmits over WAVE2’s facilities or through WAVE2’s Services. WAVE2 shall have no responsibility or liability for any material contained in the signals transmitted by Customer over WAVE2’s facilities or through WAVE2’s services, including any responsibility or liability with respect to the content of what is transmitted or any copyright or other intellectual property right therein, and Customer agrees to indemnify and hold the WAVE2 Indemnitees harmless from any Claims therefrom.
INSURANCE AND INDEMNIFICATION
1. Insurance. WAVE2 will provide and maintain during its rendition of the Services, but only for losses arising out of WAVE2’s work for Customer: (a) Worker’s Compensation and related insurance as prescribed by the law of the state applicable to the employees performing such Services; (b) employer’s liability insurance with limits of at least one million dollars ($1,0000,000) for each occurrence; (c) comprehensive/commercial general liability insurance including products liability with one million dollars ($1,000,000) per occurrence combined single limit and two million dollars ($2,000,000) general aggregate, including coverage for the use of subcontractors, products liability and completed operations, and not containing an exclusion for explosion, collapse and underground coverage; (d) comprehensive motor vehicle liability insurance, including coverage for owned, hired, leased, rented and non-owned vehicles of at least one million dollars ($1,000,000) for combined single limit for bodily injury, including death, and/or property damage; and (e) Technology E&O insurance covering the effects of errors and omissions in the performance of technology services in the amount of one million dollars ($1,000,000) for each occurrence and in the aggregate associated with Services.
2. Intellectual Property Indemnity
  - (a)Infringement Claims. If a third party asserts a claim against Customer asserting that the Deliverables and/or WAVE2’s performance of the Services violates a patent, trade secret or copyright (an “Intellectual Property Right”) owned by that third party (“Infringement Claim”), then WAVE2 will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer, but only if Customer promptly notifies WAVE2 of any Infringement Claim, WAVE2 retains sole control of the defense of any Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by WAVE2. WAVE2 will not be liable for any expenses or settlements incurred by Customer without WAVE2’s prior written consent.
  - (b)Remedies. If an injunction or order is obtained against WAVE2 performing the Services for Customer and/or Customer using the Deliverables by reason of the allegations of infringement, or if in WAVE2’s opinion the Services and/or Deliverables may violate a third party’s proprietary rights, then WAVE2 will, at its expense: (a) procure for Customer the right to continue to receive the Services and/or use the Deliverables; (b) modify or replace the Services and/or Deliverables with a compatible, functionally equivalent substitute; or (c) if neither (a) nor (b) are commercially practical, terminate this Addendum and release Customer from its obligation to make future payments for the Services and/or Deliverables. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, THIS PARAGRAPH 7.2(B) SETS OUT THE EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS.
3. Mutual Indemnity. Each Party will indemnify, defend and hold harmless the other Party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying Party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the Party seeking indemnity giving prompt written notice to the indemnifying Party of any claim, demand or action, and cooperating with the indemnifying Party in the defense or settlement of any such claim, demand or action.
4. Indemnification for Customer Failure to Perform. Customer shall indemnify, defend and hold WAVE2 and its parent entity, members, subsidiaries and Affiliates, and its and their respective officers, directors, managers, employees, representatives and agents harmless from and against any and all claim, damage, loss, liability, injury, cost, expense (including reasonable attorneys’ fees and expenses), arising from the failure of Customer to perform its obligations.
MISCELLANEOUS/OTHER PROVISIONS.
1. Force Majeure. Any delay or failure to perform any obligation caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond reasonable, will not be deemed a breach of obligations. This provision does not apply to the payment of monies or any breach of Section 4.
2. Basis of the Bargain; Failure of Essential Purpose. Customer acknowledges that WAVE2 has agreed to the prices in reliance upon the limitations of liability and the disclaimers of warranties provided, and that those limitations and disclaimers form an essential basis of the bargain between the Parties. Customer agrees that the limitations and exclusions of liability and disclaimers specified in these Standard Terms and Conditions will survive and apply even if found to have failed their essential purpose.
3. Export Controls. Customer will cooperate with WAVE2 as reasonably necessary to permit WAVE2 to comply with the laws and regulations of the United States and all other relevant countries, relating to the control of exports (“Export Laws”). Customer may not import, nor export or re-export directly or indirectly, including via remote access, any part of the Product into or to any country for which a validated license is required for such import, export or re-export under applicable Export Laws, without first obtaining such a validated license.
4. Dispute Resolution and Governing Law. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE PRODUCT AND/OR THESE STANDARD TERMS AND CONDITIONS WILL BE SUBJECT TO ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES. THE AWARD AND ANY FINDINGS OF THE ARBITRATOR MUST BE FILED WITHIN THIRTY (30) DAYS OF THE FINAL ARBITRATION HEARING. JUDGMENT ON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTHING CONTAINED IN THIS SECTION WILL LIMIT EITHER PARTY’S ABILITY TO SEEK INJUNCTIVE RELIEF IN ANY COURT. THE PARTIES WILL ARBITRATE DISPUTES IN CONFIDENCE.
  
  THESE STANDARD TERMS AND CONDITIONS WILL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF WISCONSIN. THE CHOICE OF LAW RULES OF ANY JURISDICTION AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY.

Wave2 Networks Standard Terms and Conditions