Lease & Service Agreement
EQUIPMENT LEASE AND SaaS SERVICE AGREEMENT
This EQUIPMENT LEASE AND SaaS SERVICE AGREEMENT (this “Agreement”), dated (“Effective Date”) is entered into by Scanalytics and Customer.
RECITALS
WHEREAS, Scanalytics desires to lease to Customer and Customer desires to lease from Scanalytics the equipment listed in the Statement of Work hereto (the “Equipment”);
WHEREAS, Customer also desires access to Scanalytics’ online service described on Exhibit A attached hereto and applicable documentation on Scanalytics’ website (the “Service”);
WHEREAS, certain terms of this Agreement are set forth in the Statement of Work, attached hereto;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises herein contained and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Scanalytics and Customer agree as follows:
ARTICLE I
EQUIPMENT LEASE
1.1 Lease. Pursuant to the terms and conditions of this Agreement, Scanalytics agrees to lease to Customer, and Customer agrees to lease from Scanalytics, the Equipment. Scanalytics shall deliver the Equipment to Customer at Customer’s place of business or such other place designated in writing by the parties. The approximate delivery date and delivery cost are set forth in the Statement of Work, attached hereto.
1.2 Security Interest. This Agreement is intended, in part, to constitute an agreement to lease the Equipment. In the event that this Agreement is deemed to constitute an installment sale or other financing, Customer acknowledges and agrees that it grants Scanalytics a security interest in the “goods” and “general intangibles”, as those terms are defined by the Wisconsin Uniform Commercial Code, as amended, that constitute the Equipment.
ARTICLE II
SaaS SERVICE
2.1 SaaS License. Scanalytics grants Customer a license to access and use the Service for six (6) months after the Activation Date set forth on the Statement of Work via the Internet under and subject to the terms of this Agreement and the Terms of Service available via Scanalytics’ website, or successor website. Scanalytics will host the Service. Scanalytics reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time. Any of Customer’s Users shall be required to agree to Scanalytics’ standard user agreement before accessing the Services. For purposes of this Agreement, “Users” shall mean customers of Customer who have accepted Scanalytics user terms and conditions and received access to use the Service.
2.2 Passwords and Access. Customer is responsible for all activities that occur under Customer’s account, including individual User accounts associated with Customer. Customer is responsible for maintaining the security and confidentiality of all of Customer’s usernames and passwords and for instructing Users to do the same. Customer agrees to notify Scanalytics immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security. Customer is responsible for its Users’ failure to properly protect the Users’ usernames and passwords.
2.4 Restrictions on Use of the Service. Customer may not alter, resell or sublicense the Service or provide it as a service bureau, except to its Users. All Users must agree to Scanalytics’ standard user agreement prior to accessing the Service. Customer agrees not to reverse engineer the Service or its software or other technology. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or the Scanalytics Content or (iv) copy any features, functions or graphics of the Service or the Scanalytics Content. Customer will not “frame” or “mirror” the Service. Use, resale or exploitation of the Service and/or the Scanalytics Content except as expressly permitted in this Agreement is prohibited.
2.5 Appropriate Use of the Service. Except as to Customer’s Users, Customer may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Scanalytics’ prior written consent. Scanalytics reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to the Service, Scanalytics’ computers, systems or infrastructure or to other parties, or is in violation of state or federal laws.
ARTICLE III
TERM
3.1 Term. The initial term of this Agreement (“Initial Term”) is set forth in the Statement of Work, attached hereto.
3.2 Renewal Term. This Agreement will automatically renew for successive one-month periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless either party provides notice of termination not less than 7 days before the end of the Initial Term or current Renewal Term, as applicable. Applicable pricing will continue unchanged from the previous term unless Scanalytics notifies Customer of changes in pricing at least 14 days prior to the expiration of the Initial Term or current Renewal Term, as applicable.
ARTICLE IV
FEES
4.1 Fees. Customer agrees to pay for the fees set forth in the Statement of Work attached hereto.
4.2 Non-Payment. In addition to other applicable remedies, Scanalytics reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement, upon five calendar days’ written notice, if Customer’s account becomes delinquent. Should this occur, Customer agrees to promptly arrange for the delivery of all Equipment to Scanalytics at Customer’s cost, but in no event later than five calendar days after the date of Scanalytics’ email notice.
4.3 Payment Terms. The following payment terms shall apply: (i) Scanalytics shall invoice Customer for the service period selected by Customer in the Statement of Work (upfront or periodically); (ii) the invoice shall cover the fees for the next service period (i.e., the following month or the following year); (iii) Customer shall pay each invoice in full by the due date of such invoice; (iv) failure to pay any invoice in full by the due date of the invoice shall result in an additional late fee charge equal to 3% of the unpaid amount.
ARTICLE V
DATA
5.1 Customer Content. All Customer Content submitted by Customer to Scanalytics, whether posted, uploaded or provided by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law. As between Customer and Scanalytics, Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Content. Scanalytics will not use the Customer Content for any purpose other than to provide the Service to Customer or Customer’s Users and for statistical reporting purposes. That said, Scanalytics may aggregate anonymous statistical data regarding use and functioning of its system by its various Customers and/or Users. Such aggregated statistical data will be the sole property of Scanalytics. Scanalytics will use commercially reasonable security measures to protect Customer Content against unauthorized disclosure or use. “Customer Content” means data, information or material provided or submitted by Customer or any User to Scanalytics in the course of utilizing the Service.
5.2 Limited License to Customer Content. Subject to the terms and conditions of this Agreement, Customer grants to Scanalytics a non-exclusive license to use, copy, store, transmit and display Customer Content to the extent reasonably necessary to provide and maintain the Service.
5.3 Scanalytics Content. Scanalytics retain all rights in the Service and Scanalytics Content. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. The Scanalytics name, the Scanalytics logo, and the product names associated with the Service are trademarks of Scanalytics or third parties, and they may not be used without Scanalytics’ prior written consent. No other use of the Scanalytics Content is permitted. For purposes of this Agreement, “Scanalytics Content” shall mean all content, text, audio, video, graphics and other information and data received and/or made available by means of the Service or on Scanalytics’ website, excluding Customer Content (as defined in Section 5.1).
5.4 Limited License to Scanalytics Content. Subject to the terms and conditions of this Agreement, Scanalytics grants to Customer a non-exclusive license to use, print, store, transmit and display the Scanalytics Content for the limited purpose of providing the Service to Customer’s Users, for the Users’ internal use only. Except as to Customer’s Users, Customer may not sublicense, resell, supply or otherwise commercialize the Scanalytics Content for use in or for the benefit of any other organization, entity, business, or enterprise without Scanalytics’ prior written consent. Customer agrees to ensure that its Users do not sublicense, resell, supply or otherwise commercialize the Scanalytics Content for use in or for the benefit of any other organization, entity, business, or enterprise without Scanalytics’ prior written consent.
5.5 Access to Scanalytics Content. Users shall be granted access to User-specific Scanalytics Content. Customer shall have access to all Scanalytics Content specific to all of its Users.
5.6 Privacy. Scanalytics agrees to implement its privacy policies in effect from time to time. Scanalytics reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.
ARTICLE VI
CUSTOMER'S OBLIGATIONS
6.1 Non-Permitted Use. Except with the prior written consent of Scanalytics or as otherwise expressly permitted by this Agreement, Customer shall not use, and shall not cause, suffer or permit the use of, the Equipment except for the sole benefit of Customer and its Users and such use must be in conjunction with the Service.
6.2 Personal Property. The Equipment is, and Customer shall cause the Equipment to remain, personal property and is not, and will not be, attached to real estate in such a manner that the Equipment constitutes, or will constitute, a fixture as defined by Wisconsin Uniform Commercial Code, as amended, or any other applicable law in effect in a State in which the Customer or the Equipment are located.
6.3 Liens. Customer will not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien (including a mechanic’s or other statutory lien), security interest (excepted as provided for herein), charge, encumbrance, financing statement (except with respect to the security interest provide for herein), title retention or any other rights or claims of any person or entity on or with respect to the Equipment.
6.4 Insurance. Customer shall maintain at all times on the Equipment, at its expense, “allrisk” physical damage insurance and comprehensive general liability insurance (covering bodily injury, and property damage, including, but not limited to, contractual liability and products liability) in such amounts, against such risks, in such form and with such insurers as shall be satisfactory to Scanalytics; provided, that the amount of “allrisk” physical damage insurance shall not on any date be less than the full replacement value of the Equipment as of such date. Such insurance policy will, among other things, name Scanalytics as an additional insured or as loss payee (as the case may be), require that the insurer give Scanalytics at least thirty (30) days prior written notice of any alteration in or cancellation of the terms of such policy, and require that the interests of Scanalytics be continually insured regardless of any breach of or violation by Customer of any warranties, declarations or conditions contained in such insurance policy. In no event shall Scanalytics be responsible for premiums, warranties or representations to any insurer or agent thereof. At Scanalytics’ option, Customer shall furnish to Scanalytics an original certificate or other evidence satisfactory to Scanalytics that such insurance coverage is in effect; provided, however, that Scanalytics shall be under no duty to ascertain the existence or adequacy of such insurance. The insurance maintained by Customer shall be primary without any right of contribution from insurance that may be maintained by Scanalytics. The obligations of Customer under this Section 6.4 shall be independent of all other terms under this Agreement and shall in no event relieve Customer from any indemnity obligation hereunder.
6.5 Internet Access. Depending upon the Equipment leased by Customer, data collected by the Equipment will be either uploaded to the Service in real-time through an Ethernet or WIFI stick connection or uploaded after collection when the Equipment is connected to the Internet or returned to Scanalytics. To the extent a reliable Internet connection is required, it shall be provided by Customer or User and shall not be the responsibility of Scanalytics, nor shall Customer withhold payment of fees due hereunder due to a lack of access to the Service due to a lack of Internet connection.
6.6 Compliance with Laws. Customer will use the Equipment in a careful and proper manner and will comply with and conform to all governmental laws, rules and regulations.
6.7 Installation. Customer shall be responsible for the proper installation of the Equipment at a User’s location. Scanalytics shall provide the installation and/or training set forth in the Statement of Work, attached hereto, and shall be available to consult with Customer from time to time as reasonably necessary. Should any Equipment require repair for any reason, Customer shall promptly contact Scanalytics to arrange for such repair. Customer shall not attempt to repair the Equipment without Scanalytics’ express written consent to do so.
6.8 Loss or Damage. All risk of loss, theft, damage or destruction to the Equipment however incurred or occasioned, shall be borne by Customer. If an Event of Loss occurs, Customer shall promptly give Scanalytics written notice thereof, and Customer shall promptly pay to Scanalytics an amount equal to the replacement value of the Equipment and all applicable sales and use taxes. Customer shall bear all costs associated with returning damaged Equipment to Scanalytics for repair. As used herein, “Event of Loss” with respect to the Equipment means that the Equipment is or becomes lost, stolen, destroyed, condemned or irreparably damaged, from any cause whatsoever during the term of this Agreement or until the Equipment is returned pursuant to the Agreement.
6.9 Additional Covenants. Customer irrevocably grants to Scanalytics power of attorney to take any action in the name of Customer (or otherwise) with respect to the Equipment, provided that Scanalytics shall not exercise such power so long as no default or Event of Default has occurred. To further secure the obligations of Customer to Scanalytics hereunder, Customer hereby grants to Scanalytics a security interest in Customer’s rights and interest in, to and under any agreement affecting the Equipment and the proceeds thereof.
6.10 Return of Equipment. Customer shall return the Equipment to Scanalytics at such location as Scanalytics may designate in writing. Until all the Equipment is returned to Scanalytics Customer shall be responsible for and pay all the costs and expenses in connection with or incidental to the return of the Equipment, including, without limitation, the cost of disassembling and transporting the Equipment. At the time of such return, the Equipment shall properly function and be in the same condition as when received by Customer, ordinary wear and tear excepted, and be free and clear of all Liens.
ARTICLE VII
TERMINATION
In addition to the termination rights in Article III, the following termination provisions shall apply.
7.1 Material Breach. Scanalytics, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer Materially Breaches this Agreement and such breach has not been cured within 10 business days of notice of such breach. A “Material Breach” includes, but is not limited to, (i) failure to make timely payment of fees owed, (ii) failure to perform material obligations of this Agreement, (iii) the bankruptcy or insolvency of Customer, and (iv) material damage or destruction of the Equipment.
7.2 Effect of Termination. In the event that this Agreement is terminated (for any reason), Scanalytics will, within 5 days of a Customer’s request, make available one backup of the Customer Content in Scanalytics’ standard format. Customer agrees and acknowledges that Scanalytics has no obligation to retain and may delete Customer Content that remains in Scanalytics’ possession or control more than 60 days after termination. Customer shall at its expense upon such demand, return the Equipment promptly to Scanalytics at such place or places in the continental United States as Scanalytics shall specify, or Scanalytics, at its option, may enter upon any property where the Equipment is located and take immediate possession of the Equipment and remove the same by summary proceedings or otherwise, all without liability for or by reason of such entry or taking of possession, whether for the restoration of damage of property caused by such taking or otherwise. Scanalytics may exercise any other right or remedy that may be available to it under applicable law or in equity or proceed by appropriate court action to enforce the terms hereof or to recover damages for the breach hereof or to terminate this Agreement.
7.3 Survival. The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Content to the extent reasonable for Scanalytics’ discharge of its post-termination obligations, and the following Sections and paragraphs: 1.2 (Security Interest), 2.2 (Passwords and Access), 2.3 (Restrictions on Use of the Service), 4 (Fees), 5.2 (Limited License to Customer Content), 5.3 (Scanalytics’ Content), 6.4 (Insurance), 6.10 (Return of Equipment), 7.2 (Effect of Termination), 7.3 (Survival), 8 (Confidentiality), 9 (Indemnification), 10 (Warranties; Disclaimers), and 11 (Miscellaneous).
7.4 In addition, Customer shall be liable for any and all amounts due hereunder before or during the exercise of any of the foregoing remedies and for all legal fees and other costs and expenses incurred by reason of the occurrence of any Material Breach or the exercise of Scanalytics’ remedies with respect thereto. NO REMEDY REFERRED TO IN THIS SECTION IS INTENDED TO BE EXCLUSIVE BUT EACH SHALL BE CUMULATIVE AND IN ADDITION TO ANY OTHER REMEDY REFERRED TO HEREIN OR OTHERWISE AVAILABLE TO LESSOR AT LAW OR IN EQUITY; and the exercise or beginning of exercise by Scanalytics of any one or more of such remedies shall not preclude the simultaneous or later exercise by Scanalytics of any or all such other remedies. To the extent permitted by applicable law, Customer hereby waives any rights now or hereafter conferred by statute or otherwise require Scanalytics to sell, lease or otherwise use the Equipment, or any portion thereof, in mitigation of Scanalytics’ damages or losses or which may otherwise limit or modify any of Scanalytics’ rights or remedies under this Agreement.
ARTICLE VIII
CONFIDENTIALITY
8.1 “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
8.2 Exceptions. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving party will promptly inform the providing party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
8.3 Use of Confidential Information. Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder.
8.4 Duties upon Termination. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
8.5 Legal Process. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
ARTICLE IX
INDEMNIFICATION
9.1 Scanalytics’ Indemnification Obligation. Scanalytics will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Equipment, the Service or the Scanalytics Content (other than that due to Customer Content). In case of such a claim, Scanalytics may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Scanalytics may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service and Equipment not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
9.2 Customer’s Indemnification Obligation. Customer will defend, indemnify, and hold Scanalytics (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Content or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party, (ii) arising out of breach of Sections 2.3, 2.4, 5.2 and Article VI or (iii) based on or related to use and operation of the Equipment.
9.3 Notice. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
ARTICLE X
WARRANTIES; DISCLAIMERS
10.1 Warranty Regarding the Service. Scanalytics warrants that the Service will perform in all material respects to the functionality as described in applicable online user documentation available via Scanalytics’ web site.
10.2 Customer Warranty. Customer confirms that it has selected the Equipment and Service on the basis of its own judgment and expressly disclaims reliance upon any statements, representations or warranties made by Scanalytics.
10.3 Additional Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.
10.4 DISCLAIMER OF WARRANTIES. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SCANALYTICS. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN THIS ARTICLE 10, THE EQUIPMENT, THE SERVICE AND THE SCANALYTICS CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE EQUIPMENT, THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES AND/OR USERS’ PURPOSES. SCANALYTICS DOES NOT WARRANT THAT USE OF THE SERVICE OR EQUIPMENT WILL BE ERROR-FREE OR UNINTERRUPTED. SCANALYTICS IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE (OR LACK THEREOF) OF THE INTERNET.
10.5 Limitation of Liabilities. Except with regard to Customer’s payment obligations and with regard to either party’s indemnification obligations, in no event will either party’s aggregate liability exceed the fees due for the 12 month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. In no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
10.6 Third Party Disclaimer. The Service may include gateways, links or other functionality that allows Customer and/or Users to access third party services (“Third Party Services”) and/or third party content and materials (“Third Party Materials”). Scanalytics does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use. SCANALYTICS MAKES NO WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS.
ARTICLE XI
MISCELLANEOUS
11.1 Non-Solicitation. During the term of this Agreement and for a period of one year thereafter, Customer will not, and will ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or for performance of any services any person employed by Scanalytics or (ii) hire or engage for any services any person employed by Scanalytics.
11.2 Assignment. This Agreement may not be assigned by Customer without the prior written approval of Scanalytics but may be assigned by Scanalytics to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Scanalytics’ assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns. Notwithstanding the foregoing, this section shall not prevent Customer from placing the Equipment at various locations owned by Users, though Customer shall remain solely responsible and liability for any loss or damage to the Equipment.
11.3 Further Assurances; Financing Statements. Each party hereto from time to time hereafter, and upon request, shall execute, acknowledge and deliver such other instruments as reasonably may be requested to more effectively carry out the intent and purpose of this Agreement and to establish and protect the rights, interests and remedies created or intended to be created in favor of Scanalytics hereunder. To the extent permitted by applicable law, Customer hereby authorizes Scanalytics to file any financing statements and memoranda with respect to the Equipment with or without the signature of Customer.
11.4 Notices. Any and all notices, demands, and communications provided for herein or made hereunder shall be given in writing and shall be deemed given to a party at the earlier of (i) when hand-delivered to and time-stamped by such party, or (ii) when mailed to such party by registered or certified U.S. Mail (return receipt requested) or sent by overnight courier, confirmed by receipt, and addressed to such party at the address designated on the invoice for such party.
11.5 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provision hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, Customer hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.
11.6 Amendment; Waiver. No term or provision of this Agreement may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom the enforcement of the amendment is sought. No delay or failure on the part of Scanalytics to exercise any power or right hereunder shall operate as a waiver hereof, or as acquiescence in any default, nor shall any single or partial exercise of any power or right preclude any other or further exercise thereof, or the exercise of any other power or right.
11.7 No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Scanalytics as a result of this Agreement, the lease of the Equipment or the use of the Service.
11.8 Entire Agreement. This Agreement and the agreements referred to herein contain the full, final and exclusive statement of the agreement between Scanalytics and Customer relating to the lease of the Equipment and the provision of the Services.
11.9 Agreement of Lease. This Agreement shall constitute an agreement of lease, and nothing herein shall be construed as conveying to Customer any right, title or interest in the Equipment except as a lessee only.
11.10 Governing Law, Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Wisconsin and applicable US federal law. The state and federal courts located in the city of Milwaukee, Wisconsin will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
11.11 Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
11.12 Execution in Counterparts. This Agreement may be executed by the parties hereto on any number of separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
EXHIBIT A
EQUIPMENT AND SERVICES
Service
- Scanalytics provides its Customers with a web-based service to analyze and evaluate the data collected by the Equipment.
- Customer logs on with its personal username and password and will have access to data received by Scanalytics’ servers from the Equipment.