Enterprise Terms and Conditions 

These Enterprise Customer Terms and Conditions (hereinafter, the “Terms”) are entered into by and between WYND Technologies, Inc., a corporation organized under the laws of Delaware (hereinafter “WYND”), and the entity identified in the applicable Order Form (hereinafter “Customer”) (each of WYND and Customer, a “Party” and collectively, the “Parties”). These Terms are effective as of the earlier of execution of an initial Order Form, receipt of WYND Hardware or access to the WYND Platform (hereinafter, the “Effective Date”) and govern Customer’s license and lease of hardware and software products and other services set forth in an order form or statement of work executed by the parties (each an “Order Form”). 

1.             Definitions

“Authorized User” means employees, contractors and other personnel of Customer or its Affiliates who are authorized to access and use the WYND Platform.

“Customer Site”  means those location(s) described in the corresponding Order Form where WYND Hardware will be installed in connection with Customer’s access and use of the WYND Platform.

“Documentation” means the following documentation (in tangible, electronic or other form), if any, that WYND delivers to Customer: (i)  WYND’s user operating manuals for the WYND Hardware, and (ii)  specification documents for the WYND Platform.

“Intellectual Property Rights” means any trade-marks, trade secrets, copyrights, patents and any other intellectual property or proprietary rights.

“Professional Services” means consulting, advisory, training, implementation or other such specialized services performed by WYND as may be described in an Order Form.

“WYND Hardware” means those hardware items provided to Customer pursuant to an Order Form and leased to Customer by WYND.

“WYND Platform” means WYND’s software platform for monitoring and analyzing particle and noise levels.

“WYND Technology” means, collectively, the WYND Hardware, WYND Platform and Documentation.

2.             Access to WYND Platform

2.1          Grant of License. Subject to the terms and conditions of these Terms, WYND grants to Customer and Authorized Users a non-exclusive, non-sublicensable, non-transferable right and license during the Term to access and use the WYND Platform, subject to any limitations set forth in the corresponding Order Form.  

2.2          License Restrictions. Customer will not and will not authorize any third party to: (i) use, copy, modify or otherwise prepare derivative works of the WYND Technology, or any portion thereof, except as expressly authorized in these Terms; (ii) rent, lease, loan, sublicense, sell or otherwise distribute any WYND Technology; (iii) except as expressly permitted by any applicable law, reverse engineer or decompile any WYND Technology, or otherwise attempt to derive or modify the source code of, or any processes, techniques, methods, specifications, protocols, algorithms, interfaces, data structures, or other information embodied or used in, the WYND Technology; (iv) use the WYND Technology for purposes of product evaluation, benchmarking, performance testing, or comparative analysis intended for publication; (v) remove or obscure any proprietary or other notices contained in the WYND Technology; or (vi) use the WYND Technology in any manner which could damage, disable, overburden, or impair the WYND Technology or interfere with any third party’s authorized use of the WYND Technology.

2.3          Reservation of Rights. Customer will have no rights with respect to any WYND Technology except as expressly set forth herein. All rights relating to the WYND Technology that are not expressly granted hereunder to Customer are reserved and retained by WYND. Customer acknowledges that, as between WYND and Customer, WYND has and will retain all right, title and interest (including, without limitation, all intellectual property rights) in and to the WYND Technology.

3.             WYND Hardware

3.1          Shipping and Delivery.  WYND agrees to deliver any ordered WYND Hardware to the location specified by Customer.  Unless otherwise agreed in writing, shipping and handling fees are the responsibility of Customer.  Customer will be responsible for any import/export fees and taxes for the WYND Hardware.  WYND shall not be liable for any delays in shipment or delivery of the WYND Hardware due to causes beyond its reasonable control, including but not limited to, acts of God, natural disasters, labor disputes, disruptions in transportation networks, government actions, or shortages of materials. In the event of any such delay, the date of delivery or shipment shall be extended for a period equal to the time lost due to such delay.

3.2          Installation.  Unless otherwise agreed upon in writing by the parties, Customer shall have sole responsibility for installation and maintenance of all WYND Hardware delivered to Customer.  Neither WYND nor its employees, affiliates, agents or contractors will be liable for any damage, loss, or destruction to WYND Hardware at the Customer Site(s), including in connection with the installation by Customer of the WYND Hardware, unless caused by the gross negligence or willful misconduct of WYND.

3.3          Access.  WYND may require access, right-of-way, conduit, and/or common room space at Customer Site(s) in order to install and maintain the WYND Hardware (“Access”).  Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the WYND Hardware used to provide Customer with access to the WYND Platform within the Customer Site(s).  Customer shall be responsible for securing and maintaining on an initial and ongoing basis during the Term, such Access within each Customer Site and provide WYND with Access to the Customer Site(s) from time to time upon reasonable notice.  In the event that Customer, fails to secure or maintain such Access within a particular Customer Site, Customer will be responsible for all loss and damage to any WYND Hardware and WYND will not be responsible for any inaccuracies, service interruptions, errors or other issues arising from Customer’s use of the WYND Technology due to the foregoing.

3.4          Lease; Ownership of WYND Hardware.  The WYND Hardware is and shall remain the property of WYND, and is leased to Customer pursuant to the terms and conditions of these Terms.  Customer agrees that it shall take no action that directly or indirectly impairs WYND’s title to the WYND Hardware, or any portion thereof, or exposes WYND to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the parties.  Customer is responsible for damage to, or loss of, WYND Hardware caused by its acts or omissions, and its noncompliance with these Terms, or by fire, theft or other casualty at the Customer Site(s), unless caused by the gross negligence or willful misconduct of WYND. 

3.5          Additional Customer Responsibilities.  Customer acknowledges that WYND’s provision of the WYND Platform is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation, and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.  Customer will (i) be responsible for all use of the WYND Platform, including securing any consents, licenses, approvals or permissions required for use of the WYND Platform at the Customer Site(s), (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the WYND Platform, including as set forth in the Documentation; and (iii) prevent unauthorized access to or use of the WYND Platform and WYND Technology and notify WYND promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the WYND Platform and WYND Technology. 

3.6          Defective Equipment.  In the event the WYND Hardware provided by WYND to Customer is defective as determined by WYND, Customer shall promptly notify WYND and WYND will, in its sole discretion, provide Customer with a replacement or alternative for such WYND Hardware in accordance with its standard policies to the extent such defect or malfunction materially and adversely affects Customer’s use of the WYND Platform. 

3.7          Return of Equipment.  For a period of three (3) months following WYND’s discontinuance of the WYND Platform to the Customer Site(s) (the “Service End Date”), WYND may at its option either (i) request Customer return all WYND Hardware or (ii) request Customer provide WYND with Access to the Customer Site to allow WYND to remove the WYND Hardware.  In the event Customer fails return the WYND Hardware to WYND or permit WYND to retrieve the same within three (3) months following the Service End Date, WYND will invoice Customer the standard subscription list price for the WYND Hardware retained by Customer.

4.             Term; Termination

4.1          Term. These Terms begins on the Effective Date and shall be in effect until terminated (the “Term”).  Either Party may terminate these Terms with thirty (30) days’ advance written notice if all Order Forms have expired or are terminated as expressly permitted in these Terms. Customer cannot cancel or terminate these Terms except as expressly permitted by Section 4.2 (Termination for Cause).

4.2          Termination for Cause. Either Party may terminate these Terms, including any related Order Form, if the other Party: (i) fails to cure any material breach of these Terms (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that Party (and not dismissed within sixty (60) days thereafter).

4.3          Effect of Termination. Upon any expiration or termination of these Terms or an Order Form, Customer’s rights to use the WYND Platform and WYND Technology terminate and Customer (including its Authorized Users) must promptly: (a) stop using WYND Platform and WYND Technology; (b) delete (or, at WYND’s request, return) any of WYND’s Confidential Information, and return to WYND all WYND Hardware delivered to Customer, including all WYND Hardware in Customer’s possession, custody, or control.  Except where these Terms specifies an exclusive remedy, all remedies under these Terms, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a Party.

4.4          Survival. Upon any expiration or termination of these Terms, the rights and obligations of the Parties will terminate, except that Sections 1, 2.2, 2.3, 3.2, 3.3, 3.7, 4.3, 4.5, 5, 6.3, 6.4, 7.3 and 8-11 will survive such expiration or termination. Customer’s liability and obligation to pay any fees or other amounts that have accrued prior to such expiration or termination will also survive such expiration or termination.

 

5.             Fees

5.1          Fees.  Customer agrees to pay all fees in United States dollars within fifteen (15) days of the date of the invoice, unless otherwise specified in the applicable Order Form. If Customer is overdue on any payment of undisputed fees and fails to pay within ten (10) business days of a written notice, then WYND may assess, and Customer agrees to pay a late fee of either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less. Except as expressly provided in these Terms, payments are non-refundable and non-creditable and payment obligations non-cancellable. WYND reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the initial term of an Order Form, as specified in such Order Form, or then-current renewal term.

5.2          Taxes.  WYND’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of WYND.

5.3          Disputes.  Customer must notify WYND in writing of any good-faith payment dispute within twenty (20) days of the applicable payment date and reasonably cooperate with WYND in resolving any dispute. If the parties are unable to resolve a dispute within ten (10) days of Customer’s notice, each Party will have the right to seek any remedies it may have under these Terms, at law or in equity, irrespective of any provision in these Terms that would limit seeking these remedies on account of a payment dispute. For clarity, any undisputed amounts must be paid in full in accordance with this Section.

6.             Professional Services and Data

6.1          Professional Services. If an Order Form provides that WYND will conduct professional services, WYND will assign to Customer personnel with the skills and experience required to successfully complete such Professional Services, and Customer will assign a primary point of contact to coordinate communication and make decisions on behalf of Customer during performance of the Professional Services.  WYND’s ability to complete the Professional Services, and to do so within the total number of days or weeks specified in the applicable Order Form, substantially depends upon Customer’s timely and effective cooperation and collaboration. WYND will not be responsible for any delay in the Professional Services caused by the actions or inactions of Customer. 

6.2          Customer Data. WYND will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of all data and information uploaded by or on behalf of Customer to the WYND Platform (including but not limited to site plans, diagrams, maps, dimensions, calculations and other information concerning a Customer Site) (“Customer Data”); (ii) protect against threats or hazards to the security of Customer Data; and (iii) prevent unauthorized access to Customer Data.  Except as expressly set forth herein, Customer will retain all right, title, and interest to the Customer Data.

6.3          Aggregated Performance Data.  Notwithstanding anything to the contrary, WYND shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the WYND Technology that does not identify Customer or individual (“Aggregated Performance Data”), and WYND shall be free (during and after the term hereof) to (i) use such Aggregated Performance Data to develop and improve (including for diagnostic and corrective purposes) the WYND Technology and other WYND offerings, and (ii) disclose such Aggregated Performance Data solely in aggregate or other de-identified form in connection with its business. 

6.4          Feedback. Customer may from time to time provide suggestions, comments, or other feedback to WYND, including suggestions for product or service offerings, changes, improvements or new functionality or capabilities (“Feedback”). Feedback is entirely voluntarily and WYND is not required to treat Feedback as Confidential Information of Customer and will be free to use Feedback and ideas generated from Feedback in WYND’s future product development (including but not limited to improvement of the WYND Technology) and otherwise without restriction or obligation, including any obligation to compensate Customer for such Feedback.

7.             Warranties and Disclaimers

7.1          Mutual Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required operational power, right and authority to enter into these Terms and perform its obligations hereunder, (b) such Party shall comply with all applicable laws and regulations with respect to its activities under these Terms, (c) the execution of these Terms and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (d) these Terms constitutes a legal, valid and binding obligation upon it once executed.

7.2          Performance Warranty.  During the Term, WYND warrants, for Customer’s benefit only, that the WYND Platform: (a) when used as authorized under these Terms, will operate in substantial conformity with the corresponding Documentation; and (b) will be provided in a professional and workmanlike manner in accordance with generally accepted industry standards for similar services (collectively, the “Performance Warranty”).  Customer must notify WYND in writing within thirty (30) days of discovery of a breach or potential breach of the Performance Warranty and include a detailed description.  If WYND receives a valid warranty claim within this period, it will use commercially reasonable efforts in its discretion to repair the affected portion of the WYND Platform or re-perform the services (as applicable), or if WYND determines this remedy is not commercially reasonable, either Party may terminate the applicable Order Form upon written notice to the other Party.  Upon such termination, Customer will receive a pro-rata refund in the amount of any fees it has pre-paid for the terminated portion of the applicable Order Form. The remedy in this Section will be Customer’s sole and exclusive remedy, and WYND’s sole liability, for any breaches of the Performance Warranty.  Notwithstanding the foregoing, the Performance Warranty does not apply to or cover and WYND will not be responsible for: (a) errors in or resulting any non-WYND products or services; (b) Customer’s misuse or failure to comply with or follow the Documentation or these Terms; or (c) modifications to the WYND Platform by anyone other than WYND or services provided by anyone other than WYND.

7.3          Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, WYND MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE WYND TECHNOLOGY OR OTHER PRODUCTS OR SERVICES PROVIDED BY WYND HEREUNDER, OR ANY OTHER ASPECT OF THESE TERMS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY OTHER WARRANTY. CUSTOMER ACKNOWLEDGES THAT THE WYND TECHNOLOGY OR OTHER PRODUCTS OR SERVICES PROVIDED BY WYND HEREUNDER ARE INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S SYSTEMS, PROCESSES OR ANY OTHER CUSTOMER KNOWLEDGE OR PROFESSIONAL OPINIONS. WYND DOES NOT WARRANT THAT THE OPERATION OF THE WYND PLATFORM OR WYND TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE WYND TECHNOLOGY OR OTHER PRODUCTS OR SERVICES PROVIDED BY WYND HEREUNDER DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL. BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE NOT ENTERED INTO THESE TERMS IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION OTHER THAN THOSE SET FORTH ABOVE IN THIS SECTION 7.

8.             Indemnification

8.1          Indemnification by WYND. WYND agrees to defend Customer from and against all third-party claims alleging that the WYND Platform when used as authorized under these Terms, infringes any Intellectual Property Rights.  WYND will indemnify and hold Customer harmless from and against any damages and costs awarded against Customer or agreed in settlement by WYND (including reasonable attorney’s fees) resulting from these third-party claims. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if WYND determines these actions are reasonably necessary to avoid material liability, WYND may at its option: (i) procure rights for the affected portion of the WYND Platform; (ii) modify the WYND Platform so as to avoid infringement but be materially equivalent; or (iii) terminate the Order Form for the affected WYND Platform and refund any fees Customer has pre-paid for the terminated portion of the applicable Term.  Notwithstanding the above, WYND’s obligations under this Section do not apply to the extent infringement results from: (a) third party products, services or combinations with these items; (b) modification of the WYND Platform by someone other than WYND or its subcontractors; (c) Customer Data; or (d) use by Customer in breach of these Terms (collectively, “Excluded Claims”). THIS SECTION 8.1 STATES THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE ENTIRE LIABILITY OF WYND, OR ANY OF ITS SUPPLIERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, CONTRACTORS OR REPRESENTATIVES, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

8.2          Indemnification by Customer. Customer agrees to defend WYND from and against all third-party claims arising from or related to (i) misuse by Customer of the WYND Platform or any Excluded Claims.  Customer will indemnify and hold WYND harmless from and against any damages and costs awarded against WYND or agreed in settlement by Customer (including reasonable attorney’s fees) that result from these third-party claims.  

8.3          Indemnification Procedure. Each Party’s defense and indemnification obligations are subject to the indemnifying Party receiving: (i) prompt written notice of a claim; (ii) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified Party at the indemnifying Party’s expense (as to reasonable out-of-pocket costs). The indemnifying Party must not settle any claim without the indemnified Party’s prior written consent if the settlement would require the indemnified Party to admit fault, pay amounts that the indemnifying Party must pay under this Section, or take or refrain from taking any action (other than with respect to the WYND Platform or features). The indemnified Party may participate in a claim through counsel of its own choosing at its own expense.

9.             Limitations on Liability

9.1          Consequential Damages Waiver; Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL (A) WYND (OR ITS SUPPLIERS) BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE A PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) WYND (AND ITS SUPPLIER’S) BE LIABLE FOR ANY AGGREGATE DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT OR CLAIM.

9.2          Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 9 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, ANY WYND TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10.         Confidentiality

10.1       Definition. WYND’s “Confidential Information” means any information of WYND that is disclosed to Customer either in a writing or orally, which is either identified as confidential at the time of disclosure, or should reasonably be recognized by Customer as confidential under the circumstances. Regardless of whether or not so marked or identified, Customer acknowledges that the WYND Technology, and all technical information pertaining thereto, is the Confidential Information of WYND. Customer agrees to protect against the unauthorized use or disclosure of Confidential Information using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its most valuable confidential and proprietary information. Notwithstanding the foregoing, Confidential Information does not include information that (a) is already known by Customer at the time of disclosure; (b) becomes, through no act or fault of Customer, publicly known; (c) is received by Customer without restriction on Customer’s disclosure or use, from a third party which itself had no obligation to keep such information confidential; or (d) is independently developed by Customer without reference to the Confidential Information.

10.2       Restrictions. Customer will hold the Confidential Information in confidence and shall not disclose such Confidential Information to third parties, nor use such Confidential Information, for any purposes other than the purposes of these Terms. When disclosing the Confidential Information to a third party in a manner permitted by the foregoing sentence, Customer will ensure that such third party receives such Confidential Information subject to written confidentiality restrictions no less restrictive than those set forth in this Section 10.

10.3       Exceptions. Customer may disclose Confidential Information to the extent required to be disclosed by a court or governmental agency pursuant to a statute, regulation, or valid order; provided, however, that (a) Customer first notifies WYND and gives WYND the opportunity to seek a protective order, or to contest such required disclosure; and (b) Customer shall continue to treat the Confidential Information disclosed hereunder as Confidential Information for all other purposes.

10.4       Irreparable Harm. The Parties acknowledge and agree that any breach of the terms of Section 10 will cause irreparable harm and damage to WYND. The Parties further agree that WYND shall be entitled to pursue injunctive relief to prevent breaches of this Section 10, and to specifically enforce the terms and provisions of this Section 10, in addition to any other remedy to which WYND may be entitled, at law or in equity.

11.         Miscellaneous

11.1       Governing Law and Jurisdiction. These Terms will be governed and construed in accordance with the laws of the State of California, without giving effect to any choice of laws principles that would require the application of the laws of a different jurisdiction. These Terms will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. Each Party agrees that any dispute arising from or relating to these Terms will be brought exclusively in a court of competent jurisdiction, federal or state, located within San Mateo County, California, and in no other jurisdiction and each Party hereby consents to personal jurisdiction and venue in, and agrees to service of process issued or authorized by, such courts with respect to such disputes.

11.2       Independent Contractors. WYND and Customer will perform their obligations under these Terms as independent contractors, and nothing contained in these Terms will be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the Parties. Customer will not take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of WYND and will have no power or authority to bind WYND or to assume or create any obligation or responsibility, express or implied, on WYND’s behalf or in its name.

11.3       Entire Agreement. These Terms and any Order Forms referencing these terms by and between the Parties, contain the entire agreement between the Parties with respect to the subject matter hereof and will supersede any and all prior and contemporaneous communications, representations, agreements and/or undertakings, either verbal or written, between the Parties in respect of the said subject matter. To the extent of any conflict or inconsistency between these Terms and an Order Form, the terms of the Order Form shall prevail.

11.4       Amendment. Any amendment or other modification of any of the terms and provisions hereof must be in writing and signed by duly authorized representatives of the Parties.

11.5       Severability and Limitations of Actions. In the event that any provision of these Terms or the application thereof to any person or in any circumstances will be determined to be invalid, unlawful, or unenforceable to any extent, the remainder of these Terms and its application to other persons will not be affected thereby, and the remaining provisions of these Terms will continue to be valid and may be enforced to the fullest extent permitted by law and the Parties agree in such event to substitute forthwith the invalid, unlawful or unenforceable provision by such effective provision as will most closely correspond with the legal and economic contents of the provision(s) so voided.

11.6       Notices. All formal notices and other communications required or permitted hereunder will be in writing and will be mailed by certified or registered mail, postage prepaid, delivered either by hand or by messenger, or transmitted by electronic mail, electronic telecopy (fax) to the address specified in the applicable Order Form, or at such other address as either Party will have furnished to the other in writing. All such notices and other written communications will be effective (i) if mailed, seven (7) days after mailing, (ii) if delivered, upon delivery, or (iii) if e-mailed or faxed, within one (1) business day after transmission, provided that the notifying Party has written verification of receipt. 

11.7       Waiver. The waiver by any Party of a breach or default by the other Party of any provision of these Terms will not be construed as a waiver by such Party of any succeeding breach or default by the other Party in the same or other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy.

11.8       Assignment. Customer will not assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) these Terms, or any of its rights or obligations under these Terms, without the prior written consent of WYND. WYND may freely assign these Terms. Any attempted assignment in violation of this Section will be void and without effect. Subject to the foregoing, these Terms will benefit and bind the Parties’ successors and permitted assigns.

11.9       Force Majeure. Except with respect to Customer’s payment obligations, neither Party will be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, earthquakes, floods, or other acts of God or severe weather conditions, by war, terrorism or other violence or acts a public enemy, by strikes or other labor disputes, by laws, orders, proclamations, regulations, ordinances, demands, or requirements of any governmental authority, or by any other cause beyond the reasonable control of such Party.