This SaniTrend™ Cloud Subscription Agreement (this “Agreement”), effective as of the date that Customer first receives access to the Subscription (the “Effective Date”), is by and between Sani-Matic, Inc., a Wisconsin corporation (“Sani-Matic”), and the entity that Sani-Matic is providing the Subscription to (“Customer”). Sani-Matic and Customer are each a “Party” and collectively the “Parties” to this Agreement.
1. Contract Formation. Customer may purchase the Subscription directly from Sani-Matic pursuant to a purchase order (“Purchase Order”) or through an approved Sani-Matic distributor (“Distributor”). No agreement or understanding, oral or written, purporting to modify this Agreement shall be binding on Sani-Matic unless it is made in writing, specifically stating that it is a modification of this Agreement and it is signed by Sani-Matic’s authorized representative. No course of dealing, usage of trade, or course of performance shall be relevant to explain or supplement any of this Agreement. If this Agreement is deemed an offer, Customer’s acceptance of Sani-Matic’s offer is expressly limited to acceptance of this Agreement. Customer’s use of the Platform shall constitute Customer’s assent to this Agreement. Any terms and conditions contained in any other form of communication from Customer that are additional to or different from this Agreement shall be deemed rejected by Sani-Matic, unless expressly accepted in writing by Sani-Matic’s authorized representative. Alternatively, if this Agreement is deemed to be a response to, an acceptance of, or a written confirmation of Customer’s offer, Sani-Matic’s acceptance is expressly conditioned upon Customer’s assent to this Agreement. This Agreement constitutes the entire agreement between the Parties as to the subject matter herein and supersedes any prior negotiations, representations and promises, written or oral, with respect to the subject matter hereof.
2. Purchase of the Subscription.
2.1 Use of the Subscription. Sani-Matic has developed a method for monitoring certain products manufactured by Sani-Matic (“Products”) and the SaniTrend™ Cloud software-as-a-service platform (the “Platform”) that allows Customer to view certain information regarding the Products (the “Subscription Data”) and generate reports containing the Subscription Data (“Reports”). The “Subscription” includes the Platform and Customer’s use thereof, any Reports generated by the Platform, and Platform support services or Platform upgrades provided by Sani-Matic. For the avoidance of doubt, the Subscription does not include the Customer’s information technology infrastructure, including the Products or other computers, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”). Subject to the terms and conditions of this Agreement, Sani-Matic grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to use the Subscription in accordance with the Purchase Order or other applicable ordering document during the Term of this Agreement solely for Customer’s internal purposes.
2.2 Authorized Users. An “Authorized User” is an individual who is an employee, contractor, or agent of Customer and who has been designated by Customer as a user of the Subscription. Customer will receive one administrative Authorized User account to register all other Authorized Users. Customer shall ensure that all Authorized Users comply with this Agreement and shall remain responsible for all Authorized Users. Customer shall be responsible for an Authorized User’s breach of this Agreement. Customer shall be responsible for the safekeeping, proper use, and management of all Authorized User passwords and credentials to the Subscription and the use thereof. Customer shall implement adequate security controls to ensure that all passwords and credentials are made available only to Authorized Users. If Customer learns of any loss or unauthorized use of such passwords or credentials, Customer shall immediately notify Sani-Matic of the same and reasonably cooperate in the investigation of the incident.
2.3 Subscription Data and Reports. Through the Subscription, Sani-Matic shall make certain Subscription Data available to Customer for review. Customer understands and agrees that Subscription Data shall only be available for two (2) years past the date it is initially collected through the Products. Subject to and conditioned on Customer’s payment of the fees and compliance with this Agreement, Sani-Matic grants Customer a non-exclusive, non-transferable license to use any Reports that Sani-Matic (in its sole discretion) makes available for download or printing through the Subscription solely for: (a) Customer’s own internal business purposes; and (b) to use information contained in a Report for Customer’s legal compliance obligations. Customer hereby grants and assigns to Sani-Matic and its agents, successors, and affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, transferable, and sublicensable right and license to use, share, reproduce, distribute, prepare derivative works of, publicly display, host, cache, route, transmit, store, reformat, or modify any data that is collected, inputted, hosted, or transmitted through the Subscription including, without limitation, Subscription Data and any of the foregoing data that may relate to the Customer’s and Authorized Users’ use of the Subscription. Except as expressly provided herein, Customer may only share a Report or portions of a Report with Authorized Users, regulatory authorities, and third parties that are under confidentiality obligations as restrictive as to those contained in this Agreement and provided that the third party is not a direct competitor of Sani-Matic (a direct competitor is any entity that sells or provides substantially similar products or services as Sani-Matic).
2.4 Restrictions. Except as otherwise specifically permitted in the Agreement, Customer may not (a) market, rent, lease, sell, license, distribute, sublicense or otherwise commercially exploit the Subscription or any documentation relating thereto provided by Sani-Matic (“Documentation”); (b) authorize the use of the Subscription or Documentation by others, use the Subscription for the benefit of any third parties, or share user login information or credentials with any third party; (c) copy, modify, create derivative works of, or make any alteration or addition to the Subscription or Documentation in whole or in part; (d) disassemble, reverse engineer, decode, or decompile the Subscription or otherwise attempt to discover any portion of the source code related to the Subscription; (e) remove any proprietary notices from the Documentation or the Subscription, including, without limitation, Reports; or (f) access or use the Subscription for purposes of creating a competing service. Sani-Matic is not responsible for Customer’s internet connection or service, and is not responsible for issues relating to availability, performance, privacy or security resulting from the use of the internet to transmit data.
2.5 Suspension. Notwithstanding anything to the contrary in this Agreement, Sani-Matic may temporarily suspend Customer’s or an Authorized User’s access to any portion or all of the Subscription if Sani-Matic reasonably determines that: (a) there is a threat or attack on any of Sani-Matic intellectual property; (b) Customer’s or any Authorized User’s use of the Subscription disrupts or poses a security risk to Sani-Matic or to any other customer or vendor of Sani-Matic; (c) Customer, or any Authorized User, is using the Subscription for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (e) Sani-Matic’s provision of the Subscription to Customer or any Authorized User is prohibited by applicable law; or (f) Customer or an Authorized User breaches this Agreement (a “Service Suspension”). Sani-Matic shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer. Sani-Matic will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
3. Purchase of Products. Any purchase of Products or other goods directly from Sani-Matic and any installation of the Products by Sani-Matic shall be governed by Sani-Matic’s then-current Terms and Conditions of Sale located at: https://sanimatic.com/sales-terms-conditions/ (“Product Terms”). Purchases related to other services or software not described herein and provided by Sani-Matic shall also be governed by Sani-Matic’s Product Terms. To the extent there is a conflict between the Product Terms and this Agreement, this Agreement shall govern as to the subject matter herein. If Customer purchased the Products through a Distributor, then the purchase of such Products is subject to the Distributor’s terms and conditions. Sani-Matic is not responsible for or a party to any agreement between Customer and Distributor.
4. Platform Maintenance.
4.1 Updates and Upgrades; Technical Support. For the annual Subscription fee set forth in the Purchase Order or other applicable ordering document, Sani-Matic shall provide Customer with (a) updates and upgrades to the Subscription that are provided to all Subscription customers in Sani-Matic’s sole discretion; and (b) technical support for the Subscription Monday through Friday from 8:00 AM to 4:30 PM CST, excluding holidays observed by Sani-Matic. Sani-Matic will make reasonable efforts to notify Customer of any updates or upgrades to the Subscription. If Customer selects the Remote Login Package option, then Customer grants Sani-Matic the right to access Customer’s Products remotely to provide Customer with technical support.
4.2 Support Incidents. Customer may open a new support incident by emailing the technical support team at SaniTrendCloudSupport@sanimatic.com (a “Support Incident”). Support assistance may be delivered by telephone, email, and/or remote assistance via a web meeting. Sani-Matic will use commercially reasonable efforts to provide an initial response to each Support Incident within one (1) business day. Initial responses on Support Incidents may or may not resolve the Support Incident. Sani-Matic will keep Customer’s designated contact person updated as to the status of the Support Incident until the issue is resolved.
5. Customer Systems Maintenance. Customer has and will retain sole responsibility for the Customer Systems. The annual Subscription fee set forth in the Purchase Order does not include any maintenance, servicing, patching, or upgrades to the Customer Systems unless otherwise explicitly set forth in the Purchase Order.
6. Intellectual Property.
6.1 Sani-Matic’s Intellectual Property. Sani-Matic and its licensors reserve and retain all right, title, and interest in and to the Subscription, Platform, and Reports, including without limitation any modifications, improvements, enhancements, derivative works thereof, and all intellectual property rights inherent therein (including, without limit, all inventions, patents, trade secrets, trademarks, trade names, copyrights, and all other proprietary rights pertaining thereto), whether or not based upon information provided pursuant to the Agreement. All rights not expressly granted in this Agreement are reserved by Sani-Matic and its licensors. Except as provided herein, Customer will not use any trademark, trade name, logo, or corporate name of Sani-Matic or any contraction, abbreviation, or simulation thereof without the prior written permission of Sani-Matic.
6.2 Feedback. If Customer sends or transmits any communications, content or materials to Sani-Matic by mail, email, telephone, verbally, or otherwise, suggesting or recommending changes to the Subscription or Products, including without limitation, new features, applications, or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Sani-Matic is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns and agrees to assign to Sani-Matic on Customer’s behalf, and on behalf of its Authorized Users, all right, title, and interest in the Feedback, and Sani-Matic is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Sani-Matic is not required to use any Feedback.
7. Payment. Sani-Matic shall invoice Customer annually for the Subscription fees and any expenses in accordance with the Purchase Order or other applicable ordering document. Customer shall reimburse Sani-Matic for out-of-pocket expenses incurred by Sani-Matic in connection with performing Sani-Matic’s obligations under this Agreement, including reasonable travel expenses. Any such expenses shall be billed based on the actual expense and such charges will be supported by appropriate documentation. Invoices are due and payable no later than thirty (30) days from date of invoice. Upon renewal of this Agreement, Sani-Matic may raise the Subscription fee by providing Customer written notice sixty (60) days’ prior to the end of the then-current Term. Customer agrees to pay interest on all past-due sums at the lower of one and one-half percent (1.5%) per month or the highest rate allowed by law. If Customer defaults on any payment when due, or in the event that any voluntary or involuntary bankruptcy or insolvency proceedings involving Customer are initiated by or against Customer, then all Subscription fees shall immediately become due and payable upon demand. Unless otherwise specified, all taxes, duties, permits, licenses, license fees, and inspections will be paid by Customer. These include, but are not limited to: manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection, or testing fee, or any other tax, fee, interest, or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Sani-Matic and Customer, import duties and surcharges, building and operating permits, and registration and inspections fees. In the event Sani-Matic is required to pay any such taxes or other charges, Customer shall reimburse Sani-Matic therefor on demand.
8. Term and Termination.
8.1 Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year from either: (a) the day Sani-Matic services Customer’s Products if Sani-Matic is retrofitting Customer’s existing Products to enable the Subscription; or (b) thirty (30) days after the Products are shipped to Customer for all other Customers (the “Initial Term”). The Agreement will automatically renew for one (1) year extensions (each a “Renewal Term”) unless ether Party gives the other Party written notice of non-renewal thirty (30) days’ prior to the end of the Term. An Initial Term or Renewal Term may be referred to as a “Term.”
8.2 Termination for Convenience. Either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other Party. In the event that Sani-Matic terminates the Agreement for convenience in accordance with this Section 8.2, Sani-Matic shall refund any Subscription fees prepaid by Customer for Subscription not rendered by Sani-Matic prior to the expiration date. In the event that the Customer terminates the Agreement for convenience in accordance with this Section 8.2, Sani-Matic shall retain any Subscription fees prepaid by Customer for Subscription.
8.3 Termination for Cause. Either Party may terminate this Agreement immediately for cause by giving written notice to the other Party in the event the other Party (a) becomes insolvent or unable to meet its obligations as they become due or files or has filed against it a petition under the bankruptcy laws; (b) ceases to function as a going concern or to conduct its operations in the normal course of business; (c) assigns or transfers, either voluntarily or by operation of law, any rights or obligations under this Agreement without consent of the Party seeking to terminate; or (d) breaches the terms of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. In the event that Sani-Matic terminates the Agreement for cause in accordance with this Section, Sani-Matic may retain any Service fees prepaid by Customer.
8.4 Effect of Termination. Upon expiration or termination of this Agreement, the Subscription shall terminate and Customer will no longer have access to and may no longer use the Subscription. Notwithstanding the foregoing, Customer shall have read-only access to the Platform for thirty (30) days after the expiration or termination of this Agreement in order to download or print any available Reports of Subscription Data.
8.5 Survival. Sections 2.4 (Restrictions), 6 (Intellectual Property), 7 (Payment), 8 (Term and Termination), 9 (Confidentiality), 10 (Limitations), and 14 (General) shall survive termination of this Agreement, together with any other provisions that by their nature are intended to survive.
9. Confidentiality. “Confidential Information” means any information that is reasonably considered confidential given the nature of the information and circumstances of disclosure, in any form, tangible or intangible, which may be disclosed by either Party pursuant to this Agreement, including the terms of this Agreement. Confidential Information does not include information that (a) is or becomes publicly available through no wrongful act of the receiving Party; (b) was known on a nonconfidential basis by the receiving Party prior to the disclosure by the disclosing Party; (c) was lawfully disclosed on a nonconfidential basis to the receiving Party by a third Party subsequent to disclosure by the disclosing Party; (d) is independently developed by or for the receiving Party without reference to or use of the disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to governmental or judicial process, provided that the notice of such process is promptly provided to the disclosing Party in order that it may intercede in such process to contest such disclosure. Each Party shall remain the exclusive and sole owner of its own Confidential Information. Except as otherwise provided in this Agreement, each Party, on behalf of itself and its employees and agents, agrees to retain all Confidential Information of the other Party in strict confidence and exercise reasonable steps to safeguard the confidentiality of the Confidential Information received from the other Party. Except for Subscription Data and as otherwise provided herein, receiving Party will, at disclosing Party’s option, either return to the disclosing Party or destroy all disclosing Party’s Confidential Information upon termination or expiration of this Agreement or upon disclosing Party’s written request.
10.1 Mutual Warranties. Each Party represents and warrants that (a) it is a company duly organized, validly existing, and in good standing under its state of incorporation; (b) it has the right and authority to enter into this Agreement, and to fully perform its obligations hereunder; (c) it has obtained all necessary corporate approvals for the execution and delivery of this Agreement, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby; and (d) this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms.
10.2 Subscription Warranty. Sani-Matic warrants that the Subscription will be free from any material defects in material and workmanship and shall perform in all material respects in accordance with its Documentation under normal use. Customer’s sole and exclusive remedy with respect to this warranty will be, at the sole option of Sani-Matic, to either (a) have Sani-Matic use reasonable commercial efforts to reperform any Subscription not in substantial compliance with this warranty, or (b) refund amounts paid by Customer related to the portion of the Subscription not in substantial compliance; provided, in each case, Customer notifies Sani-Matic in writing within five (5) business days after performance of the applicable Subscription. Notwithstanding anything to the contrary, Customer agrees and acknowledges that Customer is solely responsible for its own compliance with all local, state, and federal laws and regulations.
10.3 Disclaimer. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING THE SUITABILITY OF THE SUBSCRIPTION FOR CUSTOMER’S PROCESS APPLICATION AND FOR DETERMINING ITS PROCESS REQUIREMENTS. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN THIS SECTION 10, SANI-MATIC IS PROVIDING THE SUBSCRIPTION “AS IS” AND “WHERE IS,” WITHOUT WARRANTY OF ANY KIND, AND SANI-MATIC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, WITH RESPECT TO THE SUBSCRIPTION, CUSTOMER’S USE THEREOF, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, ACCURACY, OR NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, SANI-MATIC DISCLAIMS ANY WARRANTIES, REPRESENTATIONS, OR LIABILITY FOR THE PERFORMANCE OF THE INTERNET OR THIRD-PARTY NETWORKS, COMPATIBILITY WITH CUSTOMER’S COMPUTER SYSTEMS, EXISTENCE OF ANY MALICIOUS CODE OR OTHER DISABLING DEVICE, UNAUTHORIZED ACCESS TO OR USE OF CUSTOMER’S INFORMATION BY A PARTY OTHER THAN SANI-MATIC, OR THE SECURITY, EFFICIENCY, OR AVAILABILITY OF THE SUBSCRIPTION.
11. Third-Party Products. Sani-Matic may make third-party products available to Customer through the Subscription. For purposes of this Agreement, such third-party products may be subject to their own terms and conditions and the applicable flow-through provisions. If Customer does not agree to abide by the applicable terms for any such third-party products, then Customer should not install or use such third-party products.
12.1 Limitations on Claims. Notwithstanding anything to the contrary in this Agreement, Sani-Matic shall have no obligations or liabilities under this Agreement to the extent a claim, damage, or liability is caused by (a) a modification or alteration of the Subscription by Customer or any other modification or alteration by any person or entity other than Sani-Matic or its employees, agents or subcontractors; (b) the combination of any Subscription with other software or components by Customer, by Sani-Matic at the request or direction of Customer, or by any person or entity other than Sani-Matic or its employees or agents; (c) the unique specifications requested by Customer; (d) any third-party software or materials provided by Customer or approved in writing by Customer; (e) use of Subscription by Customer or an Authorized User for any purpose other than its intended purpose or contrary to instructions set forth in any Documentation provided by Sani-Matic; or (f) Customer’s or its Authorized Users’ negligence or breach of this Agreement.
12.2 Limitations of Liability. SANI-MATIC’S, ITS AFFILIATES’, AND THEIR RESPECTIVE DIRECTORS’, EMPLOYEES’, AGENTS’, SUPPLIERS’, AND LICENSORS’ TOTAL LIABILITY FOR ALL MATTERS ARISING UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID TO SANI-MATIC FROM CUSTOMER UNDER THIS AGREEMENT FOR SIX (6) MONTHS’ WORTH OF SUBSCRIPTION FEES. IN NO EVENT WILL SANI-MATIC, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES RESULTING FROM LOSS OF USE, LOSS OF OPPORTUNITY, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL, LOST SAVINGS, OR LOSS OF GOODS OR PRODUCTS, EVEN IF SANI-MATIC HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND WAIVERS OF LIABILITY ARE INDEPENDENT OF ANY REMEDIES AND, NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF SUCH REMEDIES, WILL SURVIVE THE TERMINATION AND EXPIRATION OF THIS AGREEMENT. ALL CLAIMS AGAINST SANI-MATIC ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL EXPIRE UNLESS MADE AND PRESENTED TO SANI-MATIC IN WRITING BY CUSTOMER WITHIN TWO (2) YEARS FROM THE DATE THE CLAIM AROSE.
13.1 Indemnification by Customer. Customer will indemnify and hold harmless Sani-Matic, and its affiliates, officers, directors, representatives, successors, assigns, employees, agents, suppliers, and licensors (collectively, the “Sani-Matic Indemnitees”) from and against any judgments, actions, claims, lawsuits, losses, fines, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees, expenses, and court costs), which may be suffered, made, or incurred by any of Sani-Matic Indemnitees arising out of (a) a breach of Customer’s payment obligations under this Agreement; or (b) a material breach by Customer of its representations, warranties, or covenants. In the event of a third-party claim giving rise to an indemnification obligation hereunder, Customer, in its sole discretion, reserves the right, but not the obligation, to control the defense of any such action with counsel of its own choosing and Sani-Matic will fully cooperate with Customer in connection therewith.
13.2 Indemnification by Sani-Matic. Subject to the limitations set forth in Section 12, Sani-Matic will indemnify and hold harmless Customer and its affiliates, officers, directors, representatives, successors, assigns, employees, agents, suppliers, and licensors (collectively, the “Customer Indemnitees”), from and against any judgments, actions, claims, lawsuits, losses, fines, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees, expenses, and court costs), which may be suffered, made, or incurred by any of the Customer Indemnitees arising out of a successful third-party claim that the Subscription infringes such third party’s U.S. copyright or patent or misappropriates such third party’s trade secret. If Customer’s use of the Subscription is enjoined or, in Sani-Matic’s opinion, is likely to be enjoined, then Sani-Matic, at its option, may (a) modify the Subscription to make the Subscription non-infringing; (b) obtain rights for Customer to continue using the Subscription; or (c) terminate this Agreement and refund Customer any prepaid Subscription fees or for Subscription not rendered prior to the expiration date. In the event of a third-party claim giving rise to an indemnification obligation hereunder, Sani-Matic, in its sole discretion, reserves the right, but not the obligation, to control the defense of any such action with counsel of its own choosing and Customer will fully cooperate with Sani-Matic in connection therewith.
13.3 Indemnification Procedure. The indemnitor shall defend, compromise, or settle any matter that is subject to the indemnity specified herein (the “Indemnified Claim”). The indemnitee shall cooperate with the indemnitor, and the indemnitor shall reimburse the indemnitee for its direct costs in doing so. The indemnitor must secure the indemnitee’s prior written approval before settling an Indemnified Claim if such settlement involves anything other than a payment of funds for which the indemnitee is entitled to full indemnification under this Agreement.
14.1 Notice. Any notices or other communications required or permitted to be given hereunder shall be in writing and shall be considered to be given and received in all respects when hand delivered, when sent by prepaid express or courier delivery service, or three (3) days after deposited in certified U.S. mail, postage prepaid, return receipt requested, addressed, in the case of Customer, to the address indicated on the Signature Page, and, in the case of Sani-Matic, as follows: 2855 Innovation Way Sun Prairie, Wisconsin 53590, Attention: Legal Department or to such other address as may be designated by notice duly given.
14.2 Entire Agreement; Amendment. Except as provided above, this Agreement is intended to be the sole and complete statement of the obligations of the Parties as to all matters covered hereunder and thereunder, and supersede all previous understandings, agreements, representations, promises, or conditions in connections with or in respect to the subject matter hereof and thereof. For the avoidance of doubt, this Agreement shall not modify or amend the Parties’ agreement related to Customer’s purchase of other products or services from Sani-Matic, including, without limitation, the Product Terms. Neither this Agreement nor any rights or duties hereunder shall be altered or modified in any way whatsoever except by way of written instrument identifying and referring to this Agreement and signed by a duly authorized representative of each Party.
14.3 Governing Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to conflict of laws principles. Any litigation arising out of this Agreement shall be brought in the courts of the United States or the State of Wisconsin located in Dane County, Wisconsin, and the Parties hereto hereby consent to personal jurisdiction and venue in such courts. The provisions of this Agreement are severable, and if any one or more such provisions shall be judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or portions of this Agreement shall nevertheless be binding on and enforceable by and between the Parties to this Agreement.
14.4 Force Majeure. Sani-Matic is not responsible or liable for any delay in or failure of or performance of Subscription due to (a) any cause beyond Sani-Matic’s reasonable control; (b) an act of God, act of Customer,
third party, embargo, or other government act, authority, regulation or request, fire, theft, accident, strike, slowdown or other labor disturbance, war, armed conflict, act or threat of terrorism, riot, epidemic, pandemic, delay
in transportation; or (c) inability to obtain necessary labor, materials, components, or facilities. Sani-Matic is not responsible for Customer’s internet connection or service, and is not responsible for issues relating to availability,
performance, privacy, or security resulting from the use of the internet or third-party networks to transmit data.
14.5 Assignment. Customer shall not assign or transfer this Agreement or any rights or obligations hereunder, including by merger or operation of law, or sublicense any rights hereunder, in whole or in part, without the prior written consent of Sani-Matic. Sani-Matic may assign its rights and obligations hereunder to the successor in the event of a merger of Sani-Matic with or into another entity or to the purchaser in the event of a sale of all or substantially all the assets of Sani-Matic. This Agreement shall inure to the benefit of and be binding upon the respective successors and permitted assigns, if any, of the Parties, provided, that this provision shall not be construed to permit any assignment which would be unauthorized or void pursuant to any other provisions contained herein.
14.6 Independent Contractor. Each Party to this Agreement is an independent contractor and assumes full responsibility for the payment of all compensation, Social Security, unemployment, and other taxes and charges for all persons engaged by it in the performance of the work or Subscription to be performed hereunder. Each Party is not and shall not represent itself as authorized to enter into any contract or other obligation on behalf of the other.
14.7 Prevailing Party; Injunctive Relief. Should Sani-Matic engage an attorney for the purpose of enforcing the terms of this Agreement or any judgment based thereon in any court, including bankruptcy court, courts of appeals, or arbitration proceedings, Sani-Matic shall be entitled to receive its reasonable attorneys’ fees and costs in addition to any other relief granted. Customer acknowledges that Sani-Matic shall be entitled to temporary and permanent injunctive relief without the necessity of having to post a bond or other security, specific performance, or other equitable relief in the event of a breach by Customer or any of its Authorized Users of Sections 2 or 6 of this Agreement. Such remedies shall be cumulative and nonexclusive, and shall be in addition to any other remedy to which Sani-Matic may be entitled.
14.8 Miscellaneous. The titles and headings herein are for reference purposes only and will not in any manner limit the construction of this Agreement. This Agreement may be executed in counterparts with the same force and effect as if each of the signatories had executed the same instrument. This Agreement will not be interpreted or construed against a Party because that Party or a representative for that Party participated in the drafting of this Agreement. The failure of either Party to enforce this Agreement for breach or nonperformance shall not operate as a waiver of any rights to enforce the Agreement or invoke any other remedy for subsequent breach or nonperformance.
Last modified: June 10, 2022