This Wondersign Agreement (the “Agreement”), is by and between Apexis Inc., a Florida corporation with offices at 4830 West Kennedy Blvd, Suite 600, Tampa, FL 33609 d/b/a Wondersign (“Provider”) and Customer (Provider together with Customer shall be referred to herein collectively as the “Parties” and each, individually, a “Party”).
WHEREAS, Provider provides cloud-based digital services and access to its software-as-a-service offerings to its customers;
WHEREAS, Customer desires to engage such services and access certain software-as-a-service offerings pursuant to the Wondersign Terms of Service and Wondersign Content License Agreement located at https://wondersign.com/terms-conditions/, as amended from time to time, which are incorporated herein with the same force and effect as if they were given in full text. Customer represents it has reviewed Wondersign Terms of Service and Wondersign Content License Agreement and expressly agrees to them of as of the effective date of this agreement and in their then-current form on the date of any future renewal. Provider desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement, the Wondersign Terms of Service and the Wondersign Content License Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Fees and Payment.
1.1 Fees. All fees are non refundable, except under the conditions stipulated in the Wondersign Terms of Service Agreement. Fees are subject to change.
1.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
1.3 Payment. Customer shall pay by check, credit card, wire, or Automated Clearing House (ACH), all Fees and Reimbursable Expenses pursuant to the payment terms noted in page one of this document. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified on the invoice or such other address or account as Provider may specify in writing from time to time.
1.4 Late Payment. If Customer fails to make any payment pursuant to the payment terms noted in page one of this document, in addition to all other remedies that may be available:
(a) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(b) if such failure continues for ten (10) calendar days following written notice thereof, Provider may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
1.5 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
1.6 Fee Increases. Provider may increase Fees after the first contract year of the Term by providing written notice to Customer at least thirty (30) calendar days prior to the commencement of that contract year.
2. Hardware Return and Refund Policy.
2.1 All hardware sales are final. No returns will be accepted by Provider. Refunds will be granted only for damaged or lost merchandise for which no replacement was shipped to the Customer by Provider.
3. Term and Termination.
3.1 Initial Term. The initial term of this Agreement commences on the date of the corresponding invoice generated. Unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for the billing frequency noted in the corresponding invoice generated (the “Initial Term”).
3.2 Renewal Term. This Agreement will automatically renew for successive terms pursuant to the corresponding invoice generated, unless earlier terminated pursuant to this Agreement’s express provisions (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Customer may terminate this Agreement without cause with thirty (30) days’ written notice to Provider prior to the subscription renewal date.
(b) Provider may terminate this Agreement without cause at the end of the Initial Term or any Renewal Term by providing Customer with written notice of termination at least thirty (30) days prior to the renewal date.
(c) Provider may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after Provider’s delivery of written notice thereof.
(d) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(e) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, in which case no refunds will be made other than at the direction of a court of competent jurisdiction; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, in which case no refunds will be made other than at the direction of a court of competent jurisdiction; (iii) makes or seeks to make a general assignment for the benefit of its creditors, in which case no refunds will be made other than at the direction of a court of competent jurisdiction; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3.4 Effect of Termination or Expiration.
Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either Party to the other Party hereunder will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data and Customer’s Confidential Information and (i) promptly return to Customer in a format specified by Customer, or at Customer’s written request destroy, all Customer Data, Customer Confidential Information, and documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Provider directly or indirectly controls, provided that, for clarity, Provider’s obligations under this Section 3.4(b) do not apply to any Resultant Data;
(c) Customer shall immediately cease all use of any Services and Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all Provider Materials, Provider Confidential Information, and documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls. For clarity, expiration or termination of any license set forth herein shall not modify Customer’s rights and ownership in the purchased Equipment. Customer may freely use the Equipment for any purpose during and after the expiration or termination of this Agreement;
(d) Provider may disable all Customer and Authorized User access to the Services or Provider Materials;
(e) if either Party terminates this Agreement pursuant to Section 3.3(d), such Party will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination; and
4.1 All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties as follows (or as otherwise specified by a party in a notice given in accordance with this Section):
If to Provider:
Apexis, Inc. dba Wondersign
9450 SW Gemini Dr #91247
Beaverton, OR 97008
Attention: General Counsel
If to Customer:
To the address pursuant to the quote noted in page one of this document.