Master Subscription Agreement
Updated: September 9th, 2019
Effective: September 9th, 2019
This Master Subscription Agreement (the “Agreement”) is between Wave Representatives, LLC., a California Limited Liability Corporation (“Wave Representatives”) and the organization agreeing to these terms (“Customer”). This Agreement governs access to and use of the Services and Beta Services. By executing a manually or digitally-executed order for our “Services” that references this agreement, you agree to the terms of this Agreement.
If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the services.
1.1 Content. This Agreement governs access to, and use of, the Services and Content. Customer and Partners may access and use the Services in accordance with this Agreement. You may not access the Services if You are Our direct competitor.
1.2. Data Security. Wave Representatives will maintain administrative, physical, and technical safeguards using industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the security, confidentiality and integrity of Customer Data.
1.3. Our Personnel. Wave Representatives will be responsible for the performance of Our personnel (including Our employees, contractors sub-processors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein. Customer agrees that Wave Representatives and its sub-processors may transfer, store, and process Customer Data in locations other than Customer’s country.
1.4. Beta Services. Wave Representatives may update the Services from time to time and we may make Beta Services available to you. If Wave Representatives changes the Beta Services in a manner that materially reduces their functionality, Customer’s right to termination will not apply to updates made to features provided on a beta or evaluation basis. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Content, shall apply equally to Your use of Beta Services.
1.5. Subscription. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
2.1. Exclusive. As part of the Service, Customer appoints Wave Representatives and gives it the exclusive right as your independent contractor to promote the sale of and solicit orders for Customer’s “Products” as defined in 2.2 herein, in the assigned territory as defined in 2.3 herein, and Wave Representatives accepts the appointment and agrees to promote the sale of and solicit orders for Customer’s products as defined by this Agreement.
2.2 Products. As used herein, “Products” shall mean and refer to all products and services sold or provided by Customer including all standard and custom products and services of Customer as of the date of this Agreement and any new standard or custom products or services developed or added thereafter.
2.3 Territory. Wave Representatives assigned territory (referred to herein as the “Territory”) which shall consist of the following: North America.
3. Your Responsibilities.
3.1. Customer Administration of the Services. Customer may specify one administrator for the Services. Customer is responsible for maintaining the confidentiality of passwords and Admin Accounts, and managing access to Admin Accounts. Wave Representatives responsibilities do not extend to the internal management or administration of the Services for Customer.
3.2. Unauthorized Access. Customer will prevent unauthorized use of the Services and terminate any unauthorized use of or access to the Services. End User Accounts may only be provisioned, registered, and used by a single End User. Customer will promptly notify Wave Representatives of any unauthorized use of or access to the Services.
3.3. Restrictions. Customer will not: (a) sell, resell, or lease the Services; (b) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; (c) reverse engineer the Services, or attempt or assist anyone else to do so, unless this restriction is prohibited by law.
3.4 Compliance. Customer is responsible for use of the Services by its End Users. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any. Customer will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Wave Representatives to provide the Services.
4.1 Fees. Customer will pay Wave Representatives all applicable Fees for the Services, in the currency indicated on the Invoice. Customer authorizes Wave Representatives, to charge Customer for all applicable Fees using Customer’s selected payment method. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.
4.2 Payment. Customer will pay Wave Representatives invoices on the payment interval set forth on the Invoice. Wave Representatives may suspend or terminate the Services if Fees are past due. Customer will provide complete and accurate billing and contact information to Wave Representatives.
4.3 Taxes. Fees are exclusive of taxes and Customer is responsible for all Taxes. Wave Representatives, will charge Taxes when required to do so. If Customer provides Wave Representatives with a valid exemption certificate, Wave Representatives or the reseller will not collect the taxes covered by that certificate.
4.4 Auto-renewals. THE CUSTOMER’S ACCOUNT IS SET TO AUTO-RENEWAL, WAVE REPRESENTATIVES MAY CHARGE AUTOMATICALLY FOR THE RENEWAL, UNLESS THE CUSTOMER NOTIFIES WAVE REPRESENTATIVES, AS APPLICABLE) THAT THE CUSTOMER WANTS TO CANCEL AUTO-RENEWAL.
4.5 Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer: (i) must provide the purchase order number at the time of purchase; and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
4.6 Commissions. Customer shall pay Wave Representatives a commission which shall be equal to an agreed to rate on your Order Form. Commissions (“normal commission”) of the “net invoice price” of all Products on identified orders in the agreed to territory, regardless of how or by whom such orders are transmitted to Customer. “Net invoice price” shall mean the total price at which an order is invoiced to the Purchaser, but excluding shipping and insurance costs, sales, use, or excise taxes, tariffs, duties and export fees.
4.7 Computation and Payment of Commission. Wave Representatives commission is earned when an order is accepted by Customer. “Order” shall mean any agreement to purchase Products and includes but is not limited to all follow on orders and to all portions of any blanket order or requirements order, regardless of when or where such portions are released, shipped or required. Commissions are due and payable on or before the 15th of the month immediately following the month in which Purchaser invoice is paid in full to the Customer.
4.8 Commission Reports. At the time of payment of commissions to Wave Representatives, Customer will send Wave Representatives a current commission statement with information on each sale on which commissions are being paid including the invoice number, the end user, systems integrator, distributor, the number of units of each product sold, the identification by name or number of each product sold, the unit and total sales prices and the commission being paid as well as the same information and list of all commissions due and owing Wave Representatives from any prior payment periods which have not been paid.
5.1 Conduct of Business. Wave Representatives shall promote the sale of and solicit orders for Products in the Territory and will conduct all its business in its own name and in such a manner as it may see fit, pay all its own expenses including all commissions, salaries, bonuses, and expenses of employees and salespersons and any and all taxes properly and lawfully associated with doing business as an independent contractor in the Territory.
5.2 Status. Wave Representatives is not an employee of Customer for any purpose whatsoever, but is an independent contractor with limited authority providing a Service to the Customer. Wave Representatives shall have sole control of the manner and means of performing under this Agreement. Customer shall not have the right to require Wave Representatives to do anything which would jeopardize the relationship of independent contractor between Customer and Wave Representatives. Nothing in this Agreement shall be construed to constitute Wave Representatives as a partner, employee or general agent of Customer nor shall either have any authority to bind the other in any respect.
5.3 Code of Ethics. Wave Representatives and the Customer agree that during the term of this Agreement and for one year thereafter, neither party nor an agent for the party, will solicit, hire or engage or attempt to hire or engage any person who within 6 months prior to the hiring or attempted hire, serves or served, as an employee, independent contractor, or sub-representative of, or under contract with, the other, without first obtaining prior written approval from the other.
5.4 Materials. Customer shall furnish Wave Representatives (if applicable), at no expense to Wave Representatives, samples, catalogs, literature, and any other material necessary for the proper promotion and solicitation of orders for its Products. If for any reason Wave Representatives takes possession of Products (or other property belonging to the Customer), reasonable use and care of the products shall be exercised by Wave Representatives while in its possession but the risk of loss or damage to the Products (or other of Customer’s property) is to be covered by Customer’s insurance at Customer’s cost. Customer shall defend, indemnify and hold Wave Representatives harmless against any claims, debts, liabilities or causes of action resulting from any loss, damage, or destruction of such Products (or other of Customer’s property), as well as for any loss, damage, destruction or personal injury resulting from the lawful and proper use of the Products (and other of Customer’s property) by Wave Representatives or others. Any literature which is not used or samples, demonstration equipment or other items belonging to Customer shall be returned by Wave Representatives to Customer at its request upon reasonable notice so long as it does not adversely affect Wave Representative’s ability to sell the Products and otherwise to abide by this Agreement.
6. Intellectual Property Rights.
6.1 Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant: (a) Wave Representatives any Intellectual Property Rights in Customer Products; or (b) Customer any Intellectual Property Rights in the Services or Wave Representatives trademarks, copyrights and brand features.
6.2 Limited Permission. Customer grants Wave Representatives only the limited rights that are reasonably necessary for Wave Representatives to provide the Services. This limited permission also extends to Subcontractors or Sub-processors.
6.3 Suggestions. Wave Representatives may use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions on the Services that Customer or End Users may send Wave Representatives or post in Wave Representatives forums without any obligation to Customer.
7.1 Agreement Term. This Agreement shall continue in full force and effect for the agreed to subscription term from the date of execution and shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns including purchasers of Customer’s assets as more fully stated below.
7.2 Renewal. The Agreement shall renew automatically for successive 12 month terms unless either party notifies the other, in writing, of its intention not to renew at least ninety (90) days before the end of the initial term of this Agreement or any renewal term.
7.3 Services Term. Wave Representatives will provide the Services to Customer for the Services Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term will have a prorated term ending on the last day of the pre-existing Services Term.
8.1 Generally. Either Party may terminate this Agreement, including all Order Forms, if: (i) Should either party be in material breach of or material non-compliance with any of the terms of this Agreement, and fails to cure that breach within thirty (30) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
8.2 Effects of Termination. If this Agreement terminates: (a) except as set forth in this Section, the rights and licenses granted by Wave Representatives to Customer will cease immediately; (b) Wave Representatives may, at Customer’s request, provide Customer access to its account at then-current fees so that Customer may export its Customer Data; and (c) after a commercially reasonable period of time, Wave Representatives may delete any Customer Data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: 4 (Payment), 5.3 (Code of Ethics), 6 (Intellectual Property Rights), 8.2 (Effects of Termination), 9 (Indemnification), 10 (Disclaimers), 11 (Limitation of Liability), 12 (Disputes), and 13 (Miscellaneous)
8.3 Commissions. Wave Representatives shall be paid commissions on all orders which are dated or communicated to Customer up to the effective date of expiration or termination, up to 12 months of when or where such orders are released, shipped or fulfilled.
9.1 By Customer. Customer shall defend and hold Wave Representatives harmless from and shall indemnify Wave Representatives for all claims, liability, loss, costs, expenses or damages, including court costs and reasonable attorneys’ fees, related to any Products (whether or not defective), services, or any act or omission of Customer, including but not limited to, any injury (whether to body, property or personal or business character or reputation) sustained by any person or to property, and for infringement of any trademark, copyright and patent rights or other rights of third parties, and for any violation of municipal, state, or federal laws or regulations governing the products or services or their sale, which may result from the sale or distribution of the products by Customer.
9.2 By Wave Representatives. Wave Representatives will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Wave Representatives technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Wave Representatives have any obligations or liability under this section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by Wave Representatives; and (b) any content, information, or data provided by Customer, End Users, or other third parties.
9.3 General. The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party will have full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE WAVE REPRESENTATIVES AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
10.1 Generally. THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR WAVE REPRESENTATIVES AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.
10.2 Beta Services. Despite anything to the contrary in this Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services.
11. Limitation of Liability.
11.1 Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR WAVE REPRESENTATIVES OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR WAVE REPRESENTATIVES AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.1 Informal Resolution. Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in Section 13.6. If a dispute is not resolved within thirty (30) days of notice, Customer or Wave Representatives may bring a formal proceeding.
12.2 Arbitration. Customer and Wave Representatives agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Diego (CA).
12.3 Exception to Arbitration. Either Party may bring a lawsuit in the federal or state courts of San Diego County, California solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Wave Representatives consent to venue and personal jurisdiction there.
13.1 Terms Modification. Wave Representatives may revise this Agreement from time to time and the most current version will always be posted on the Wave Representatives website. If a revision, in Wave Representatives sole discretion, is material, Wave Representatives will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Wave Representatives blog or terms page, and Customer is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within thirty (30) days of receiving notice of the change.
13.2 Entire Agreement. This Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire Agreement between the Parties related to this subject matter. All attachments to the Agreement, Customer invoices, and Order Forms executed by the Parties, are hereby incorporated into the Agreement by this reference.
13.3 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Invoice, the Order Form, the Agreement, Terms of Service. The terms and conditions of this Agreement will be considered the confidential information of Wave Representatives, and Customer will not disclose the information to any third parties. Customer agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void. If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and this Agreement will control if there is a conflict.
13.4 Governing Law. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
13.5 Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
13.6 Notice. Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Wave Representatives must be sent to Wave Representatives Legal at email@example.com, with a copy to Wave Representatives, LLC., P.O. Box 722594, San Diego, CA 92172, attn.: Legal Department.
13.7 Waiver. A waiver of any default is not a waiver of any subsequent default.
13.8 Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Wave Representatives. Wave Representatives may not assign this Agreement without providing notice to Customer, except Wave Representatives may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
13.9 No Agency. Wave Representatives and Customer are not legal partners or agents, but are independent contractors.
13.10 Subcontracting. Wave Representatives will remain liable for all acts or omissions of its Subcontractors or Sub-processors, and for any subcontracted obligations.
13.11 Force Majeure. Except for payment obligations, neither Wave Representatives nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).