Thank you for choosing WAVE Systems, Inc. or our affiliates ("WAVE"). As a customer, your contract with WAVE consists of your WAVE Contract to Purchase ("CTP") which incorporates by reference the Terms and Conditions (hereinafter, the "Standard Terms") and the Service Level Agreement (hereinafter, the "SLA").

 

Your service agreement may include other terms and conditions set forth in additional schedules listed below. These service specific terms and conditions shall apply, in addition to your service agreement, the Standard Terms and SLA, in the event you purchase a service with applicable service specific terms and conditions.

 

PLEASE READ THE STANDARD TERMS AND ALL OTHER APPLICABLE SCHEDULES [INCLUDING WAVE'S ACCEPTABLE USE POLICY ("AUP")] LISTED BELOW AS THESE GOVERN THE RELATIONSHIP BETWEEN YOU (THE CUSTOMER) AND WAVE. BY ENROLLING IN, USING, OR PAYING FOR WAVE SYSTEMS, THE CUSTOMER AGREES TO THE STANDARD TERMS, THE SLA, THE AUP AND THE OTHER APPLICABLE TERMS AND CONDITIONS SET FORTH BELOW. WAVE MAY CHANGE THE STANDARD TERMS, SLA, AUP AND OTHER SCHEDULES LISTED BELOW AT ANY TIME. YOU SHOULD CHECK THIS SITE FOR THE MOST UP TO DATE INFORMATION. YOUR CONTINUED USE OF A WAVE SYSTEM CONSTITUTES YOUR AGREEMENT TO WAVE'S TERMS AND CONDITIONS THAT ARE IN EFFECT AT THE TIME YOU USE THE WAVE SYSTEM.

 

To view any actual material, you must have Adobe Acrobat Reader on your hard drive. You can download a free copy of Acrobat Reader at this Adobe web site link.

 

General Provisions

 

1.0   Agreement of the Parties

2.0.  WAVE Systems

3.0.  Effective Date, Term and Revenue Commitments

4.0.  Ordering & Provisioning of WAVE Systems

5.0.  Payment Terms, and Charges; Credit

6.0.  Suspension and Termination

7.0.   Indemnity and Limitation of Liability

8.0.   Warranty

9.0    Proprietary Information and Property Rights

10.0 General

11.0 Miscellaneous

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1. 0  Agreement of the Parties

1.1 Introduction. This Service Guide governs the WAVE Systems provided by Wave Systems, Inc, a Delaware corporation with its principal place of business at 26 Pearl St. Norwalk, CT 06850 (“WAVE”) to the Customer indicated on the applicable CTP. This Service Guide is a part of the Agreement between WAVE and the Customer which also includes the Exhibits, Amendments, Attachments and all other documents required for WAVE to provide the WAVE Systems to Customer.

 

1.2 Integration. This Service Guide is a part of the Agreement between Customer and WAVE which includes the CTP, Order Forms and other similar documents applicable to the Products and WAVE Systems (as hereinafter defined) and are fully incorporated into and become a part of the Agreement.

 

2.0  WAVE Systems. Customer may execute a CTP containing WAVE equipment, software and/or services which referred to herein collectively or individually, as the “WAVE System”. All WAVE Systems and components ordered by Customer under a CTP shall be provided upon the terms and conditions that are set forth in the Agreement as amended from time to time.

 

2.1Equipment

 

2.1.1 Base Equipment

a. Guardian Hub w3000

b. Indoor/Outdoor Monitors

c. Remote Alert Unitd.Tablet

 

2.1.2 Wearables

a. Lifeguard Tags

b. Staff Bracelets

c. Trackers

d. Goggle Clips

 

2.1.3 Accessories

a. Exit Detector

b. Remote Indoor Monitor

c. Remote Indoor Monitor Extender

d. Remote Outdoor Monitor

e. Wearable Storage Rack – Wall (up to 50)

f. Wearable Storage Rack – Floor (up to 200)

g. Location Indicators

h. WiFi Range Extenders

 

2.2  Warranty and Support Plan (WSP)

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2.2.1  General Warranty Terms.

a. Coverage Period: The warranty covers defects in materials and workmanship during the term of the WSP.

b. Eligibility: The WSP applies only to the original purchaser and is non-transferable

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2.2.2 What is Covered.

a. Fixed Devices Only: Fixed Devices are defined as any of the following Hardware or Accessory devices: Guardian Hub w3000, Indoor/ Outdoor Monitors, Remote Alert Unit, Exit Detector, Remote Indoor Monitor, Remote Indoor Monitor Extender, Remote Outdoor Monitor and WiFi Extenders.  All Wearables are excluded from all WSP coverages.

b. Defects in Materials & Workmanship: Repairs or replacements will be provided for any defects arising from the manufacturing process.

c. Repair or Replacement: At the discretion of the manufacturer, defective products will either be repaired or replaced with a new or refurbished product of equal value

 

2.2.3 What is Not Covered.    The warranty does not include:

a.Damage caused by misuse, abuse, accidents or unauthorized modifications

b.Consumable parts such as batteries unless they are defective at delivery

c.Products used outside of their intended purpose or environment

 

2.2.4 Claim ProcessTo make a warranty claim:

a.Contact WAVE Customer Support to report WSP claim

b.Obtain a WSP claim RMA number

c.Return the equipment using WAVE-supplied shipping label for inspection

 

2.2.5 Limitations and LiabilityThe manufacturers liability is limited to the repair or replacement of defective products as outlined herein. Indirect or consequential damages are not covered.

 

2.3  Extended Warranty OptionsCustomers may purchase an additional 2 year warranty plan beyond the standard warranty period for DPS Trackers Wearable devices. This warranty extends the coverage period for defects in materials and workmanship and battery depletion to within ten percent (10%) of useful like as indicated in HMS

 

2.4  SoftwareCustomer will be provided access to software tools to assist in the self-management and operation of WAVE system(s). Software includes the following: WAVE Hub Management Console (HMC), WAVE Customer Portal and WAVE HMC Mobile App.

 

2.5  Software End User License Agreement (EULA)

 

2.5.1 License Grant: WAVE grants Customer a non-exclusive, non-transferable, revocable license to use WAVE software on Customer devices.

 

2.5.2Restrictions: Customer may not:

a. Reverse engineer or decompile the software

b. Use the software on devices not approved by WAVE.

c. Distribute or sell the software

 

2.5.3 Intellectual Property: All rights, title and interest in the software remain with WAVE

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2.5.4 Updates: WAVE may provide updates at its discretion to the software

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2.5.5 Warranty: the software is provided “as is” without warranty of any kind,

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2.5.6 Limitation of Liability: WAVE shall not be liable for any damages arising from the use of WAVE software.

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2.5.7 Termination: This software license terminates automatically if

a. If Customer does not maintain an active WSP subscription

b. Customer does not comply with the terms of this EULABy installing the WAVE Software, Customer agrees to the terms of this EULA.

 

2.6  WAVE Support Service Level Agreeement (SLA)

 

2.6.1Purpose and ObjectiveThis agreement represents a Service Level Agreement (SLA) between WAVE Systems, Inc. (“WAVE”) and the Customer. The objectives of this SLA are to: Provide a clear understanding of roles and responsibilities Provide a clear and measurable description of the services provided.  WAVE MAKES NO EXPRESS WARRANTY ON THE WAVE SYSTEM AND EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OF THE SYSTEM OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.In order for WAVE to properly monitor system usage, Customer must;

(a) provide Wi-Fi connectivity for the WAVE System or otherwise collaborate with WAVE to provide internet connectivity via cellular networks,

(b) provide to WAVE and keep current a schedule of when the WAVE System is intended to be in use by Customer, and

(c) immediately notify WAVE if any WAVE Equipment is damaged or lost or if any WAVE Equipment or WAVE Software malfunctions.

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2.6.2 Access to Support Services:

a. 24/7 Monitoring – Wave provides 24/7 automated system monitoring via technology and toolsets so that we may support our Customers’ WAVE installations.

b. Live Agent Support – WAVE offers live Customer phone support +1.888.384.WAVE (9283) during the WAVE Business Hours:Monday – Friday 8:00AM – 5:00PM Eastern Time (ET) except for the below holidays

 

New Year's Day: Wednesday, January 1

Martin Luther King, Jr. Day: Monday, January 20

Presidents' Day: Monday, February 17

Memorial Day: Monday, May 26

Independence Day: Friday, July 4

Labor Day: Monday, September 1

Veterans Day: Tuesday, November 11

Thanksgiving Day: Thursday, November 27

Christmas Day: Thursday, December 25

 

c. Email Submission: Customer may submit issues via email to support@wavedds.com.   For a Critical incident, always contact +1.888.384.WAVE rather than email.

 

2.6.3 Support Levels:

 

Support requests received through email at support@wavedds.com are monitored throughout the normal working day and triaged to the appropriate level of support.

 

Phone calls to +1.888.384.WAVE are triaged as they come into the WAVE Support queue based on the priority. 

 

The following definitions of Support Levels are provided for guidance only, as each support request logged may require subsequent escalation or de-escalation according to the information received from the Customer and/or the findings of the support team as the support request is investigated and progressed.

 

2.6.3.1 Priorities/SLAs for Support

 

Priority Level Response SLA

 

Support Ticket Classifications with Response Time and Corrective SLA's

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Priority 1  –  CRITICAL     Response Time :  2 Hours     Correction SLA :  1 Business Day

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Priority 1 Definition: The WAVE System is no longer able to monitor swimmers or staff, or alert staff, and none of the issues are caused by low battery levels or system configuration changes.

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Example:  Hub stops working, devices cannot connect to hub.

 

Priority 2 – URGENT     Response Time : 1 Business Day      Correction SLA :  2 Business Days

 

Priority 2 Definition - The WAVE System can monitor swimmers and staff, but other system functions or individual wearable devices become inoperable and none of the issues are caused by low battery levels or system configuration changes.

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Example:  A WAVE Exit Detector, Remote Monitor, Tablet or the Management App stops working. A Swimmer Wearable or Staff Bracelet stops working.

 

Priority 3 –  PROBLEM       Response Time:  2 Business Days          Correction SLA:  Best Effort

Priority 3 Definition - All other issues involving the performance of the WAVE System.

 

Example:  Questions about system configuration settings

 

2.6.3.2 Priorities / SLAs for Support.   All timings given for the resolution of support requests are provided based on our best endeavors and may depend on other factors including:

 

- The level and numbers of outstanding support requests. 

- The resources we have available at the time of the request.

- The time taken for Customers to respond to any pending questions or requests for further information required by the support team.

 

In circumstances where a Support Request leads to a request for additional functionality to be developed, the Support Request will be progressed to an agreed development specification and a costing and timescale for completion would be provided. A signed CTP and payment from the Customer would be required before any work is commenced. The support request would be closed and reassigned to a development project.

 

Note that other than the Swimmer Wearables and Staff Bracelets products, the WAVE Equipment is not waterproof and should not be subject to heavy splashing or heavy rain. Water damage to the electronics inside of these components are the responsibility of the Customer

 

2.6.4 Maintenance Downtime.  To maintain the highest quality of service, it is necessary for WAVE to periodically conduct maintenance activities that affect certain on- premises system components and our cloud services portal. Except for emergency maintenance, WAVE will provide 24-hours advance notice and conduct such maintenance activity outside the operating hours of the Customer’s facility when possible.The advance notice will include a description of changes to be implemented and the impact (if any) on the Customer’s operations or use of the WAVE System.During maintenance there may be a disruption to your service. After the system maintenance is complete, the WAVE Support staff will test the system remotely to ensure it is working properly.

 

2.6.5  Support Management.  Before you end your Support Call:To be sure the follow-up to your incident meets your expectations; please review this checklist with the Support Representative before you hang up: Review the Priority Level and SLA’s Review action items for you and WAVE Support Confirm who is responsible for the call back and when.

 

2.6.6 Training/Onsite Support.  WAVE Support may determine, depending on the complexity of the issue, that additional training or onsite support may be required which is outside the scope of this SLA and will be subject to a separate agreement stating conditions under which a site visit may occur and the fees associated.

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2.6.7 Customer Responsibilities. 

 

Courteous & Respectful Behavior. We understand that some issues that occur may cause stressful situations at your facility and that your time is valuable. We expect our staff to be polite and courteous, even in the most stressful of situations, and we appreciate the same from our Customers alike. WAVE wants to work with you to resolve all issues as quickly as possible. If during any phone conversations the Customer or their staff use raised voices or become verbally abusive or use insulting or derogatory language the conversation will be terminated until such time as the Customers staff are prepared to continue in a constructive and professional manner.

 

2.6.8. WAVE Quality of Service.  WAVE will perform all services in a professional and courteous manner consistent with industry standards and our company’s mission, vision and values. WAVE Support is always looking for ways to improve in all aspects of its products and services. If you have any feedback, please contact us at +1.888.384.WAVE.

 

3.0  Effective Date, Term and Revenue Commitments.

 

3.1 Term of Agreement. This Agreement is effective upon the Effective Date indicated on the CTP and shall continue in effect for the period indicated on the CTP. Thereafter, the Agreement shall continually renew the Wave Warranty and Support Plan as indicated on the CTP at WAVE’s then prevailing rates unless either Party serves the other Party with written notice of such Party’s intent not to renew the Agreement as prescribed on the CTP. The initial Term and all renewal periods shall be referred to as the “Term”.

 

3.2 A termination of this Agreement shall prohibit the use of the WAVE System by Customer. The Customer’s WAVE software license shall also be revoked.

 

3.3 Each WSP shall have a minimum term for that Service (a “Service Term”). The applicable Service Term for a Service shall be set forth in the applicable CTP.

 

3.4 Purchasing Commitment and Volume Pricing Plan. Customer acknowledges and agrees that the rates and any applicable discounts set forth in the CTP may be based upon Customer providing a purchasing commitment level over a fixed period of time to WAVE known as a Volume Pricing Plan (“VPP”). The CTP shall indicate the Volume Pricing Plan selected.

 

4.0  Ordering and Provisioning of WAVE Systems.

 

4.1 Contract for Purchase for WAVE Systems.

 

4.1.1 All Orders shall be requested as part of the WAVE CTP.  Orders shall be transmitted and processed in accordance with the terms and conditions of this Agreement. WAVE shall accept any Order under this Agreement that complies with the terms and conditions set forth herein subject to availability at the time Customer places such Service Order.

 

4.1.2  A CTP is deemed accepted (subject to product availability) by WAVE when WAVE transmits an electronic Order Confirmation Document (“OCD”) to Customer indicating that Customer’s System listed on CTP are being processed by WAVE.

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4.1.3  When a CTP is signed and fully paid for, Customer will designate: (i) a requested start date (“Requested Installation Date”) for the WAVE System on a CTP and (ii) any other information necessary to enable WAVE to install the WAVE System or components. WAVE will make reasonable efforts to meet Customer’s Requested Installation Date but will not guarantee that date will be met.

 

4.1.4 Any changes to a CTP initiated by Customer after CTP acceptance by WAVE may incur additional charges and may impact the delivery and or WAVE System start date.

 

4.2 Delivery Acknowledgement. WAVE will issue to Customer an electronic notice that WAVE’s System is delivered to the location designated by Customer on the CTP (“Delivery Acknowledgement)”. This will indicate that all the WAVE System is delivered and tested by WAVE and that the WAVE’ System meets or exceed the technical specifications.

 

4.3.  Installation and Site Access.  Service will be installed subject to the availability of installation personnel, manufacturing capacity, site readiness, site environmental safety, equipment, and connections to WAVE Systems furnished by other providers. WAVE reserves the right to not install WAVE System(s) in locations WAVE considers to be unduly hazardous. Customer must provide appropriate equipment space, supporting structure, conduit and electrical power required to implement the WAVE System at a Customer site of WAVE System delivery without charge to WAVE. Customer is responsible for arranging access to Customer sites at any reasonable time so WAVE may install, repair, maintain, inspect, or remove WAVE System components.

 

4.4  WAVE Warranty and Support Plans Start Date. WAVE Warranty & Service Plans commence upon Acceptance by the Customer of WAVE System equipment following successful delivery. “Acceptance” as used herein shall mean the earlier of the date the WAVE System is installed and is running in accordance with the requirements of this Agreement or (iii) three (3) business days after delivery of the WAVE System.

 

5.0  Payment Terms and Charges; Credit.

 

5.1 Billing.

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5.1.1 All CTP charges will be in U.S. dollars in advance.

 

5.1.2 Billing is presented in an electronic format via Internet and/or paper invoice to the Notice Address contained in the CTP.

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5.2. Due Date, Invoice and Late Payment Charges.

 

5.2.1 Customer acknowledges and understands that all charges for WAVE Systems are computed exclusive of any Late Payment Charges as defined herein and any Additional Charges as defined herein. Any applicable Late Payment Charges and Additional Charges shall be accrued and paid by Customer in addition to all other charges for WAVE Systems provided for herein.

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5.2.2 Each Invoice shall be paid by Customer via ACH or electronic wire transfer or check in immediately available U.S. funds drawn on a US bank to an address that WAVE may in writing. Customer may opt for credit card payment method however WAVE will charge an additional Convenience Fee of three and one half percent (3.5%) that will be applied to the total invoice amount.

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5.2.3 Customer to remit payment pursuant to the notice provisions of this Agreement, so that the payment is received by WAVE no later than thirty (30) calendar days (unless otherwise provided pursuant to this Agreement) from the date of the Invoice (the "Due Date"). The Parties agree that the Invoice will be sent via electronic mail to the Notice Address and followed by a confirmation copy sent by US Mail to the Notice Address or as indicated by the Customer on the CTP.

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5.2.4 Any invoice not properly disputed herein and not paid by the Due Date shall bear late payment fees at a maximum rate of 1½ % per month until paid (“Late Payment Charges”). Customer will be deemed to agree to such Late Payment Charges and WAVE is not obligated to make adjustments to charges on Invoices not properly disputed herein. Further, WAVE may immediately suspend the WAVE Systems if any Invoice not properly disputed herein is not paid by its Due Date.

 

5.3Billing Disputes.

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5.3.1 Notwithstanding the foregoing, amounts charged for WAVE Systems which are reasonably disputed by Customer (along with late fees attributable to such amounts) shall not be due and payable for a period of ten (10) calendar days following the Due Date, provided Customer: (i) pays all undisputed charges on or before the Due Date, and (ii) presents a written statement of any billing discrepancies to WAVE in reasonable detail together with appropriate supporting documentation on or before the Due Date of the Invoice in question, and (iii) negotiates in good faith with WAVE for the purpose of resolving such dispute within said thirty (30) calendar day period following the Due Date. WAVE shall not be obligated to consider any Customer notice of billing discrepancies which are received by WAVE more than thirty (30) days after the Due Date.

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5.3.2 In the event such dispute is mutually agreed upon and resolved in favor of WAVE, Customer agrees to pay WAVE the disputed amounts together with any applicable late fees within five (5) business days of the resolution (the “Alternate Due Date”). In the event such dispute is mutually agreed upon and resolved in favor of Customer, Customer will receive a credit for the disputed charges in the next applicable invoice and no late fees shall apply.

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5.3.3 In the event WAVE has responded to Customer’s dispute in writing and the parties fail to mutually resolve or settle the dispute during the thirty (30) calendar days (unless WAVE has agreed in writing to extend such period), all disputed amounts together with the late fees shall become due and payable on the thirtieth (30th) day following the Due Date. This provision shall not be construed to prevent Customer from pursuing any legal remedies.

 

5.4  Charges for WAVE Systems. All charges for WAVE Systems shall be those stated in on applicable CTP. Customer shall be liable for all charges including without limitation, equipment charges, installation charges, non-recurring charges, cancellation charges, and other additional charges (the “Charges”) for WAVE Systems provided by WAVE. Additionally, Customer shall pay for costs and expenses generated by Customer, as set forth on an applicable CTP, and reasonably incurred by WAVE, beyond those normally associated with the WAVE Systems, including but not limited to, the following: (a) Customer’s request to expedite Service availability to a date earlier than WAVE’ published installation interval or a previously accepted start date and (b) Service redesign or other activity occasioned by receipt of inaccurate information from Customer. Where such costs and expenses are not specifically set forth in a relevant WAVE Systems, WAVE shall obtain Customer’s prior written approval for said any costs and expenses incurred by WAVE.

 

5.5  Taxes, Regulatory Fees and Governmental Surcharges. Customer agrees to pay all pass-through fees applicable to governmental taxes.

 

6.0  Suspension and Termination.

 

6.1 Suspension of WAVE System Use.

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6.1.1 Except for amounts disputed by Customer in accordance with the terms of this Agreement, in the event payment in full is not received from Customer on or before the Due Date, WAVE shall have the right: (i) upon providing a minimum of ten (10) calendar days written notice (the “Suspension Notice”), to suspend or block, at any time after such Suspension Notice, all or any portion of all the WAVE Systems then being provided to Customer; and (ii) to immediately place any pending Service Orders on hold, and to decline to accept any new Service Orders or other requests from Customer to provide Service commencing on the day that WAVE issues the Suspension Notice to Customer. If WAVE receives the entire past due amount within the ten (10) calendar day notice period, then Customer’s Service shall not be suspended. WAVE may continue such suspension until such time as Customer has paid in full all Charges then due, including any reinstallation charges and/or late fees as specified herein. Following such payment, WAVE shall reinstate Customer’s WAVE Systems subject to WAVE’ Right to Assurance as provided herein.

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6.1.2 Suspension of WAVE Systems as set forth in this Article shall not affect Customer’s obligation to pay for the WAVE Systems. Notwithstanding anything to the contrary in this Agreement, if Customer has agreed to a Customer Revenue Commitment, any suspension of Service by WAVE shall not relieve Customer of its obligations to pay the Customer Revenue Commitment Charge and Service Billing Commitment Charge.6.1.3Termination Due To Government Action. If WAVE is prohibited by governmental authority from furnishing or Customer is prohibited from using such portion, of WAVE Systems or if any material rate or term contained herein and relevant to the affected portion of any Service is substantially changed by order of the highest court of competent jurisdiction to adjudicate the matter, the Federal Communications Commission, or other local, state, federal, or foreign government authority, then notwithstanding the foregoing, and upon written notice consistent with the mandate put forth by the applicable governmental authority or commission, from one party to the other party, either Customer or WAVE shall have the right, without incurring a liability to the other party, to disconnect the affected portion of any WAVE Systems.

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7.0  Indemnity and Limitation of Liability.

 

7.1 Indemnity.

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7.1.1 Customer and WAVE shall defend, indemnify and hold harmless the other its affiliated companies and their respective officers, directors, employees, contractors and agents against and from any and all claims for damage to tangible property or bodily injury, including claims for wrongful death, to the extent that such claim arises out of the negligence or willful misconduct of the respective indemnifying party, its employees, agents, or contractors in connection with this Agreement or the provision of WAVE Systems hereunder.

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7.1.2 Customer will defend, indemnify and hold harmless WAVE’ Providers its affiliated companies and their respective officers, directors, employees, contractors and agents against and from any loss, debt, liability, damage, obligation, claim, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, including without limitation, all reasonable costs and expenses incurred including all reasonable litigation costs and attorneys’ fees (collectively, “Damages”) arising out of, resulting from or based upon any complaint, claim, action, proceeding or suit of any third party, including any governmental authority, (a “Claim”), based on Customer’s violation of any law or any rule or regulation or Customer’s breach of any warranty or representation made herein by Customer.

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7.1.3 WAVE will defend, indemnify and hold harmless Customer, its affiliated companies and their respective officers, directors, employees, contractors and agents against and from any Damages arising out of, resulting from or based upon any Claim based on the violation of any law or any rule or regulation by WAVE Providers or the breach of any warranty or representation made herein by WAVE.

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7.1.4 “WAVE’ Providers” shall mean WAVE Third Party Service providers and any third party or affiliated provider, operator, or maintenance/repair contractor of facilities employed in connection with the provision of WAVE Systems.

7.1.5The indemnified party shall promptly notify the indemnifying party in writing of any claims which are subject to the terms of this Article. The indemnified party shall have the right at its own expense to appoint its own counsel who shall be entitled to participate in any settlement negotiations or litigation regarding any matter for which it is entitled to be indemnified hereunder. The indemnifying party shall not agree to any settlement or consent to any decree, order or judgment without obtaining the consent of the indemnified party which consent shall not be unreasonably withheld.

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7.2 Limitation of Liability.

 

7.2.1 IN THE EVENT OF ANY BREACH OF THIS AGREEMENT OR ANY FAILURE OF THE WAVE SYSTEMS, WHATSOEVER, NEITHER WAVE, CUSTOMER NOR ANY WAVE’ PROVIDER SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, ACTUAL, INCIDENTAL, PUNITIVE OR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, EVEN IF WAVE, CUSTOMER OR THE WAVE’ PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.

 

7.2.2 WAVE also shall not be liable for any damages arising out of or relating to: interoperability, interaction, access, or interconnection problems with applications, equipment, WAVE Systems, content or networks not provided by WAVE; interruptions in Service or lost or altered messages or transmissions; or unauthorized access to or theft, alteration, loss or destruction of Customer’s or third parties’ applications, content, data, programs, information, network or systems.

 

7.2.3 This Article shall survive the expiration or termination of this Agreement.

 

8.0  Warranty.

 

8.1 Performance Warranty. WAVE warrants and represents that WAVE Systems shall perform in all material respects in accordance with the WAVE Technical Specifications.

 

8.2 Disclaimer of Additional Warranty. WAVE MAKES no warranty with respect to the Service OR ITS PERFORMANCE UNDER THIS AGREEMENT UNLESS EXPRESSLY SET FORTH IN THIS AGREEMENT. WAVE MAKES no warranty with respect to WAVE WAVE SYSTEMS OR THIRD PARTY WAVE SYSTEMS WITH THE EXCEPTION OF THE EXPRESS WARRANTIES, IF ANY, SET FORTH IN THE SCHEDULES. WAVE DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

8.3 Compliance with Law.

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8.3.1 WAVE agrees that the provision of the WAVE Systems shall be in accordance, and comply, with all applicable laws, regulations, and rules and that WAVE shall obtain and cause all Third Party Service providers to obtain all approvals, consents and authorizations necessary to conduct their respective businesses.

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8.3.2 Customer agrees that its use of the WAVE Systems shall be in accordance, and comply, with all applicable laws, regulations, and rules and that Customer shall obtain all approvals, consents and authorizations necessary to conduct its business and initiate or conduct any transmissions over any facilities covered by this Agreement. WAVE reserves the right, exercisable in its sole discretion, to disconnect or restrict any transmission initiated by Customer, if such actions are reasonably appropriate to assure that WAVE is not in violation of any civil or criminal law, regulation or rule, or if Customer violates WAVE’ Acceptable Use Policy.

 

9.0  Proprietary Information and Property Rights.

 

9.1 Proprietary Information.

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9.1.1 WAVE and Customer understand and agree that the terms and conditions of this Agreement and all documents referenced herein (including notices and invoices to Customer for WAVE Systems provided hereunder) are confidential as between Customer and WAVE. Neither Customer nor WAVE shall disclose such information to any third party without the prior written consent of the other, except as provided for herein. When confidential information is furnished in a tangible form by one party to the other, the disclosing party shall mark the information in a manner to indicate that it is considered confidential. When information deemed to be confidential is provided orally, the disclosing party shall, at the time of disclosure, clearly identify the information as being confidential and confirm such designation in writing within ten (10) calendar days thereafter. If the disclosing party fails to identify information as confidential, such disclosing party may correct the omission by later notice consisting of a writing or statement, and the receiving party shall only be liable for unauthorized disclosures of such confidential information made subsequent to said notice. All information identified as confidential pursuant hereto shall not be disclosed by the receiving party to any third party without the written consent of the disclosing party, except as provided for herein.

 

9.1.2 The party to whom confidential information is disclosed shall have no obligation to preserve the confidential nature of such information if it: (i) was previously known to such party free of any obligation to keep it confidential; (ii) is or becomes publicly available by other than unauthorized disclosure; (iii) is developed by or on behalf of such party independent of any information furnished under this Agreement; or (iv) is received from a third party whose disclosure does not violate any confidentiality obligation. WAVE may disclose confidential information regarding its relationship with Customer to commercial lenders who have specifically agreed to hold such information in confidence.

 

9.1.3 In addition, a party may disclose confidential information provided to it by the other party if such disclosure is made pursuant to the requirement or request of a recognized stock exchange or of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order, and provided further, that, prompt notice thereof is given (unless such notice is prohibited by law) to the disclosing party of any such requirement or request.

 

9.1.4 This Article shall survive the expiration, cancellation or termination of this Agreement.

 

9.2 Intellectual Property Rights. Unless otherwise specifically agreed in writing by the parties, each party shall retain all right, title and interest in and to any intellectual property associated with the provision of WAVE Systems. If it should be necessary for a party to practice any patent, copyright, trade secret or other non-trademark intellectual property of the other party to avail itself of the WAVE Systems, the parties shall negotiate in good faith a license with respect to such intellectual property. Each party acknowledges that the other party’s name is proprietary to the other party. This Agreement does not transfer, and confers no right to use, the name, trademarks (including service marks), patents, copyrights, trade secrets, other intellectual property or CIC of either party, except as expressly provided herein. Neither party shall take any action inconsistent with the intellectual property rights of the other party.

 

9.3 IP Addresses and Domain Names. Except for IP addresses and domain names transferred and expressly registered in Customer’s name, all IP addresses and WAVE-based domain names shall remain, at all times, property of WAVE and shall be nontransferable. Customer shall have no right to use such IP addresses or WAVE–based domain names upon termination of the applicable Service components.

 

10.0  General.

 

10.1 Customer Facilities. Customer has sole responsibility for installation, testing and operation of facilities, WAVE Systems and equipment (“Customer Facilities”) other than those specifically provided by WAVE as part of the WAVE Systems as described in a Service Order. In no event will the untimely installation or non-operation of Customer Facilities relieve Customer of its obligation to pay Charges for the WAVE Systems after the Effective Billing Date.

 

10.2 Title to Equipment. This Agreement shall not, and shall not be deemed to, convey to Customer title of any kind to any of the transmission facilities, digital encoder/decoders, equipment, telephone lines, microwave facilities or other facilities utilized in connection with the WAVE Systems unless specifically detailed in the WAVE Order.

 

10.3 Notices. All legal notices to be sent to a party pursuant to this Agreement shall as indicated on the CTP. Notice shall be by (1) email and (2) reputable overnight delivery courier.

 

10.4 Force Majeure. If either party’s performance of this Agreement or any obligation (other than the obligation to make payments) hereunder is prevented, restricted or interfered with by causes beyond its reasonable control including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, power outage, storm or other similar occurrence including rain fade or other atmospheric conditions, any law, order, regulation, direction, action or request of any government, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more of said governments, or of any civil or military authority, or by national emergencies, insurrections, riots, wars, acts of terrorism, strikes, lockouts or work stoppages or other labor difficulties, supplier failures, shortages, breaches or delays, then the party that is unable to perform or meet its obligations due to such causes shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction or interference. The party that is unable to perform or meet its obligations due to such causes shall use commercially reasonable efforts under the circumstances to avoid and remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes cease. In the event the force majeure event prevents the use of the WAVE System(s) and such force majeure event continues for a period of sixty (60) days, then either party may disconnect the affected WAVE Systems without incurring liability, except for Customer’s liability for any Charges to WAVE or to a Third-Party Service provider

 

10.5 Amendment. WAVE may change the Agreement at any time. In the event a change to the Agreement materially alters (i) this Agreement; (ii) Customer’s WAVE Systems; or (iii) the Charges for Customer’s WAVE Systems, then WAVE will provide Customer with sixty (60) days in which to terminate the effected WAVE Systems without Early Termination Charge. Use of WAVE Systems past that date shall constitute acceptance to the changes to the Agreement.10.6WAVE’ Acceptable Use Policy (AUP) The policy is set forth at the following URL: https://www.saferswimming.com/aup. The AUP applies to any Service Component or capability that is provided over, or includes access to, the Internet. The AUP describes the actions WAVE may take in response to AUP violations.

 

11.0Miscellaneous

 

11.1 No Venture. The provision of WAVE Systems shall not create a partnership or joint venture between the parties. The parties hereto are independent contractors.

 

11.2 Assignment. Customer shall not assign or otherwise transfer (including, without limitation, a transfer due to a “Change of Control”) its rights or obligations under this Agreement without the prior written consent of WAVE, which shall not be unreasonably withheld. Customer must be current on all payments required by this Agreement before any assignment is approved by WAVE. Any such assignment or transfer of Customer’s rights or obligations without such consent shall entitle WAVE to disconnect the WAVE Systems provided hereunder at its option upon ten (10) calendar days’ prior written notice to Customer and shall constitute a default of a material obligation by Customer. A Change in Control shall be deemed to be an assignment, merger, sale of a controlling interest or other transfer of a controlling ownership interest.

 

11.3 Choice of Law. This Agreement shall be governed by the laws of the State of New York U.S. without regard to choice of law principles. Customer hereby consents to the jurisdiction and venue of the Federal and State courts having a site in County of New York, New York, U.S.

 

11.4 Priority of Agreement and Schedules. In the event of any inconsistency in the Agreement between or among a CTP or WAVE Order and this Service Guide, the following order of precedence shall prevail (from highest priority to lowest): the applicable CTP, WAVE Order and the WAVE Service Guide.

 

11.5 No Third Party Beneficiary. The provisions of this Agreement are for the benefit only of the parties hereto, and no third party may seek to enforce or benefit from these provisions unless specifically referenced.

 

11.6 Costs and Attorneys’ Fees. If a proceeding is brought for the enforcement of this Agreement, collection of money owed, or because of any alleged or actual dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other reasonable costs and expenses incurred in such action or proceeding in addition to any other relief to which such party may be entitled. This Section shall survive the expiration or termination of this Agreement.

 

11.7 Severability. If any term or provision of this Agreement shall, to any extent, be determined to be invalid or unenforceable by a court or body of competent jurisdiction, then (a) both parties shall be relieved of all obligations arising under such provision and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it valid and enforceable while preserving its intent, and (b) the remainder of this Agreement shall be valid and enforceable.

 

11.8 No Waiver. The failure of either party to enforce any provision hereof shall not constitute the permanent waiver of such provision.

 

11.9 Publicity and References. Subject to the provisions herein that pertain to confidentiality and proprietary information, the parties contemplate and agree that publication of information relating to this Agreement may occur through press releases, articles, interviews, marketing materials, online materials, and/or speeches (“Publicity”). Both parties must approve the content of any such Publicity prior to its publication, which approval shall not be unreasonably withheld. Routine references to the fact that Customer is a customer of WAVE and the general nature of WAVE Systems that Customer purchases under this Agreement are not considered Publicity for purposes of this section, and Customer and WAVE each authorize the other, during the Term of this Agreement, to make such references.

 

11.10 Headings. Descriptive headings contained in this Agreement are for convenience and not intended as substantive portions of the Agreement. Such headings shall have no effect upon the construction of the Agreement.

 

11.11 Industry Terms and Definitions. The parties intend that words having well-known technical or trade meanings shall be accorded such meaning, unless expressly defined otherwise. For purposes of this Agreement, capitalized words and phrases shall have the respective meanings assigned to them in this Agreement.

 

11.12 Counterparts and Electronic Signature. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement. Facsimile signatures and electronic signatures (or digitized) shall be deemed original signature.

 

11.13 Survival of Terms. No termination of this Agreement or disconnection or suspension of Service shall affect the rights or obligations of either party: (a) with respect to any payment for WAVE Systems rendered before termination; or (b) pursuant to other provisions of this Agreement that, by their sense and context, are intended to survive termination of this Agreement, including without limitation, the following: Indemnification, Limitation of Liability, Proprietary Information, Notices, Choice of Law, Intellectual Property Rights, No Solicitation of WAVE Employees, and Costs and Attorneys’ Fees.

 

11.14 Prohibition of Resale. Except as explicitly authorized in a written agreement, WAVE Systems provided hereunder to Customer shall not be resold or provided to third parties.

 

11.15 Binding Effect. Except as otherwise provided for herein, this Agreement shall be binding upon and shall inure to the benefit and responsibility of the parties hereto and their respective legal representatives, heirs, successors, and assigns.

 

11.16 Time of the Essence. Time shall be of the essence for each and every provision hereof.

 

11.17 Appointment of Representative. Customer may appoint third parties to act as Customer's agent for purposes of ordering Service, receipt of bills from WAVE, or other administrative tasks associated with the Agreement. Customer shall provide WAVE written authorization of the representative to act on Customer's behalf. Customer will be responsible for all Charges for WAVE Systems ordered by the representative and all acts and omissions of the representative.

 

11.18 No Solicitation of WAVE Employees. For a period of twenty-four (24) months after the termination or expiration of this Agreement, neither Customer nor any of its affiliates will solicit to employ or contract with, and shall not employ or contract with, any of the current officers or employees of WAVE without obtaining the prior written consent of WAVE. Responses to advertisements or other indirect solicitations in the ordinary course of its business shall not be deemed a violation of this provision, provided that the person is not hired or retained by the Customer.

 

11.19 Advice of Counsel. Each person or entity executing this Agreement (a) acknowledges that this Agreement contains legally binding provisions, (b) has had the opportunity to consult with legal counsel of his, her or its choice, and (c) has either consulted legal counsel or consciously decided not to consult legal counsel.

 

11.20 Entire Agreement. The Agreement, the Schedules, the Service Guide, the CTP, WAVE acceptable use policy and all other documents or information at web addresses referenced in such documents and which are applicable to the WAVE Systems (all of which are incorporated herein) shall represent the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties relating to the WAVE Systems.