Advanced Deployment Terms of Service

“Advanced Deployment Program” or “Program” means Wendy’s advanced deployment offering, comprising the Deployment Materials and the associated access, provisioning, monitoring, support, and software services made available by Wendy under these Terms and the applicable Order.

“Order” means Customer’s order for the Program, whether placed through Wendy’s website or checkout process or under a written order form executed by the Parties, including the number of Sites, the Subscription Term, the connectivity option, and the applicable fees.

“Site” means a single location at which Customer deploys one unit of Deployment Equipment.

“Deployment Equipment” means the hardware provided by Wendy to Customer under the Program, including the enclosure, cameras, compute, battery, and any optional connectivity hub, together with all components, accessories, and documentation provided with it.

“Deployment Materials” means any device, hardware, prototype, software, platform, technology, equipment, service, feature, documentation, data, output, result, analysis, recommendation, alert, material, or other item provided or made available by Wendy in connection with the Program, including the Deployment Equipment.

“Deployment Data” means data and information generated by or relating to Customer’s access to or use of the Deployment Materials, including usage, performance, diagnostic, operational, technical, sensor, and device data, audio and visual recordings, and any comments, suggestions, ideas, recommendations, or other feedback provided by Customer.

“Subscription Term” means the term selected in the applicable Order, being month to month, twelve (12) months, or twenty-four (24) months, as further described in Section 4.

2.1 Provision. During the Subscription Term, Wendy shall provide Customer with access to and the services associated with the Program, the particulars of which are set forth in the applicable Order.

2.2 Changes to the Program. Wendy may modify, update, or improve the Program and the Deployment Materials from time to time, including by updating software on the Deployment Equipment. Wendy will not materially reduce the core functionality of the Program during a Subscription Term for which Customer has prepaid or committed.

2.3 Customer Environment. Customer is responsible for providing the physical conditions, power, and, unless Customer has selected the optional connectivity hub in its Order, the network connectivity required for the Deployment Equipment to operate at each Site, and for obtaining any permissions, permits, or consents required to deploy the Deployment Equipment at each Site.

3.1 Fees. Customer shall pay the fees set forth in the applicable Order (the “Fees”). Fees are charged per Site per month at the rate corresponding to the volume tier and Subscription Term selected in the Order. Volume tiers apply on a total-quantity basis: all Sites are billed at the rate of the tier in which Customer’s total number of Sites falls.

3.2 Billing. Fees are billed monthly in advance, beginning on the Effective Date, using the payment method Customer provides. Customer authorizes Wendy and its payment processor to charge that payment method for all Fees and applicable taxes as they become due. For any partial month, Fees will be pro-rated.

3.3 Additional Sites. Sites added during a Subscription Term are billed on a pro-rated basis from the date the additional Deployment Equipment is placed into service. If the resulting total number of Sites falls within a more favorable volume tier, all Sites will be billed at that tier’s rate beginning with the next invoice.

3.4 Taxes. All Fees are exclusive of taxes. Customer is responsible for all sales, use, value added, goods and services, excise, and similar taxes, duties, and assessments imposed in connection with the Program, other than taxes on Wendy’s net income. Where Wendy is required to collect such amounts, they will be added to Customer’s invoice.

3.5 Suspension for Non-Payment. Wendy is not obligated to provide access to the Program in any given calendar month until it has received the Fees due for that month. In the event that Customer has not paid the Fees when due, Wendy shall not be liable for any damages resulting from failure to provide access to the Program. If Customer’s failure to pay continues for five (5) consecutive business days, Wendy may terminate these Terms and the applicable Order by providing written notice.

3.6 Delinquent Amounts. Any amount due under these Terms that remains unpaid thirty (30) days after its due date (“Delinquent”) will bear interest from the date that such amount became Delinquent until the date such amount is paid in full at the maximum rate permitted by law. Customer will pay Wendy all costs and expenses of collection (including attorneys’ fees and costs) incurred by Wendy in collecting any Delinquent amounts or otherwise unpaid Fees.

3.7 Expenses. Except as expressly set forth in these Terms or the applicable Order, each Party is solely responsible for any travel or other costs or expenses that such Party incurs in connection with these Terms.

4.1 Term. The Subscription Term begins on the Effective Date and continues for the period selected in the applicable Order. Fees are payable monthly in all cases; a twelve (12) or twenty-four (24) month Subscription Term is a commitment to the duration of that term in exchange for a reduced per-Site rate.

4.2 Continuation. Upon expiration of a twelve (12) or twenty-four (24) month Subscription Term, the subscription continues on a month-to-month basis at the same per-Site rate then in effect until terminated in accordance with these Terms.

4.3 Termination of a Month-to-Month Subscription. Where the Subscription Term is month to month, either Party may terminate for any reason upon thirty (30) days’ written notice to the other Party. Termination takes effect at the end of the then-current billing month.

4.4 Committed Subscription Terms. Where Customer has selected a twelve (12) or twenty-four (24) month Subscription Term, Customer may not terminate for convenience during that term. If Customer ceases use, requests termination, or is terminated by Wendy for material breach or non-payment before the end of a committed Subscription Term, the remaining Fees for that Subscription Term become immediately due and payable.

4.5 Termination for Breach. In the event that either Party has materially breached these Terms, the other Party may terminate these Terms, effective immediately, upon written notice to the other Party.

4.6 Effect of Termination. Both Parties are responsible for obligations incurred under these Terms up to the date of termination. Upon termination or expiration, Customer’s right to access and use the Program and the Deployment Materials ceases immediately, and Customer shall return the Deployment Equipment in accordance with Section 5.5.

5.1 No Sale; Title. The Deployment Equipment is provided to Customer as part of a subscription service and is not sold. Wendy retains all right, title, and interest in and to the Deployment Equipment at all times. Customer shall not sell, lease, sublicense, pledge, encumber, or grant any security interest in the Deployment Equipment, and shall keep it free of all liens and claims.

5.2 Delivery. Wendy will ship the Deployment Equipment to the address provided by Customer in the Order or as subsequently confirmed in writing. Where an Order covers more than one Site, Customer shall provide the delivery details for each Site upon Wendy’s request.

5.3 Risk of Loss; Care. Risk of loss of or damage to the Deployment Equipment passes to Customer upon delivery and remains with Customer while the Deployment Equipment is in Customer’s custody, possession, or control. Customer shall exercise reasonable care to protect and preserve the Deployment Equipment and shall remain responsible for any loss of or damage to it, other than ordinary wear and tear and any defect in materials or workmanship.

5.4 Replacement. During the Subscription Term, Wendy will repair or replace Deployment Equipment that fails through ordinary use or through a defect in materials or workmanship, at no additional charge. Loss, theft, abuse, misuse, unauthorized modification, and damage caused by conditions outside the published operating specifications are not covered and may be charged to Customer at Wendy’s then-current replacement rates.

5.5 Return. Customer shall not destroy, dispose of, alter, damage, remove, transfer, abandon, or otherwise impair any Deployment Equipment or other Deployment Materials in its custody, possession, or control without Wendy’s prior written consent. Customer shall promptly cease using and return to Wendy all Deployment Materials in its custody, possession, or control, together with any copies, components, accessories, documentation, or other items provided with or relating to such Deployment Materials, upon termination or expiration or as otherwise requested by Wendy. Customer shall comply with Wendy’s reasonable instructions regarding the method, timing, and location of return.

Either Party (the “Disclosing Party”) may during the Subscription Term disclose information to the other Party (the “Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. During the Subscription Term and thereafter, the Receiving Party agrees to hold and treat all confidential information of the Disclosing Party or a client of the Disclosing Party, including, but not limited to, code, sketches, marketing strategies, design details and specifications, engineering, ideas, techniques, models, algorithms, software programs and source documents, trade secrets, information pertaining to business strategies and operations, other agreements, sales figures, financing, sourcing, employee and customer information and any other information that the Receiving Party reasonably should know is confidential and/or proprietary, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the “Confidential Information”) as confidential and protect the Confidential Information in a commercially reasonable manner, and at least with the same degree of care as the Disclosing Party uses to protect its own Confidential Information of like nature.

Confidential Information does not include any information that (a) at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public (other than as a result of a disclosure by the Receiving Party or its representatives); (b) is available to the Receiving Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (c) has been independently acquired or developed by the Receiving Party without violating its obligations under these Terms or under any federal or state law.

Nothing in these Terms will be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, or pursuant to the Defend Trade Secrets Act of 2016 (in order to exercise either Party’s rights thereunder), provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. In the event the Receiving Party is compelled by law or legal process to disclose any Confidential Information, it shall promptly notify and reasonably cooperate with or assist the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party shall disclose only that portion of the Confidential Information which it is advised by counsel is legally required and shall exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.

Each Party acknowledges notice of the following provisions regarding the protection of trade secrets under the Defend Trade Secrets Act, as applicable: Pursuant to 18 USC § 1833(b), an individual shall not be held criminally or civilly liable under any federal or state trade secret law for disclosure of a trade secret that (i) is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Additionally, an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (y) files any document containing the trade secret under seal; and (z) does not disclose the trade secret, except pursuant to court order.

7.1 Collection of Deployment Data. During the Subscription Term, Wendy may automatically collect Deployment Data, including data and information generated by or relating to Customer’s access to or use of any Deployment Materials.

7.2 Ownership and License. As between the Parties, Customer retains ownership of Deployment Data, and, except for the license granted below, Wendy acquires no ownership interest in Deployment Data. Customer hereby grants Wendy a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, transferable, sublicensable, and non-exclusive license to access, collect, store, reproduce, use, disclose, modify, analyze, combine, create derivative works from, commercialize, and otherwise exploit the Deployment Data for any lawful purpose, including to develop, improve, modify, train, test, support, market, and commercialize Wendy’s products, services, technology, the Program, the Deployment Materials, and its intellectual property. Wendy will exclusively own all inventions, discoveries, developments, improvements, modifications, works of authorship, technology, data models, analyses, and other intellectual property created or developed by or on behalf of Wendy through the use of the Deployment Data or in connection with the Program. Wendy will have no obligation to provide Customer with any compensation, royalties, accounting, attribution, credit, or other consideration in connection with Wendy’s use of the Deployment Data or any resulting intellectual property.

7.3 No Retention Obligation. Wendy has no obligation to provide Customer with any original or copy of the Deployment Data. Customer is solely responsible for independently collecting and retaining any original or copy of the Deployment Data that Customer wishes to preserve. Wendy has no obligation to store, retain, preserve, archive, organize, process, disclose, share, reproduce, provide access to, or delete any Deployment Data and may retain, modify, delete, destroy, or otherwise dispose of any Deployment Data at any time and in its sole discretion.

7.4 Consents and Notices. Customer is responsible for providing all notices and obtaining all consents, authorizations, and approvals required under applicable law in connection with the deployment and operation of the Deployment Equipment at each Site and the resulting collection of Deployment Data, including any notices to and consents from personnel, contractors, visitors, and other individuals who may be recorded.

7.5 Reservation of Rights. As between Wendy and Customer, Wendy is, and will remain, the sole and exclusive owner of all right, title, and interest in and to the Program, the Deployment Materials, and all intellectual property rights therein. Customer has no right or license to reproduce or use any Deployment Materials except solely during the Subscription Term to the extent necessary to use the Program in accordance with these Terms. All other rights in and to the Deployment Materials are expressly reserved by Wendy.

Customer agrees and covenants as follows:

8.1 No Reverse Engineering. Customer shall not, directly or indirectly, reverse engineer, disassemble, decompile, decode, modify, translate, or otherwise attempt to derive or discover the source code, underlying structure, design, composition, construction, operation, algorithms, trade secrets, or other proprietary information of or relating to any hardware, software, device, equipment, material, or other tangible object provided or made available in connection with the Program or the Deployment Materials.

8.2 Prohibited Uses. Customer shall not use, access, operate, or permit the use of the Program or any Deployment Materials for or in connection with any illegal, unlawful, fraudulent, deceptive, harmful, or unauthorized purpose or activity. Customer shall use the Program and the Deployment Materials only in compliance with all applicable laws, rules, regulations, orders, permits, licenses, and governmental requirements. Without limiting the foregoing, Customer shall not use the Program or the Deployment Materials to violate the rights of any person or entity; facilitate or encourage unlawful conduct; create, transmit, store, or process unlawful content or data; circumvent any legal, regulatory, security, safety, or access-control requirement; or cause any other person to violate applicable law. Customer is solely responsible for its use of the Program and the Deployment Materials and for the acts and omissions of its personnel, contractors, agents, and other authorized users.

8.3 Compliance. Customer shall comply, and shall cause its personnel, contractors, agents, and other authorized users to comply, with all instructions, requirements, procedures, specifications, restrictions, and guidelines provided by Wendy from time to time regarding the Program or any Deployment Materials, including instructions relating to access, installation, configuration, operation, testing, use, maintenance, security, safety, storage, handling, and return. Customer shall promptly cease or modify any use of the Program or the Deployment Materials upon Wendy’s request.

Except as expressly provided in this Section, neither Party may use the other Party’s trademarks, service marks, trade names, logos, symbols, brand names, or other brand identifiers (collectively, “Marks”) without the other Party’s prior written approval, which approval may be revoked at any time upon written notice. Notwithstanding the foregoing, each Party grants the other Party a limited, non-exclusive, non-transferable, revocable, royalty-free license during the Subscription Term to use its name and Marks solely to identify the relationship between the Parties, subject to any applicable brand guidelines and usage instructions provided by the owner of the Marks.

10.1 Supplemental Control Only. Customer acknowledges and agrees that the Program is intended to serve as an additional control that supplements Customer’s existing personnel, procedures, and safeguards. The Program is not a certified safety system, a fire alarm or fire detection system for regulatory purposes, or a substitute for a qualified fire watch, permit conditions, gas testing, inspection, supervision, or any other requirement applicable to Customer’s operations.

10.2 Not Certified for Classified Locations. The Deployment Equipment is not certified for use in classified hazardous locations. Customer shall not deploy the Deployment Equipment in any location where such certification is required.

10.3 No Reliance. Customer shall not rely on the Program, the Deployment Materials, or any related output, result, data, service, functionality, communication, or material for purposes of safety, accuracy, reliability, completeness, truthfulness, performance, regulatory compliance, or operational decision-making. Customer shall not use the Program or the Deployment Materials as a substitute for, or permit the Program or the Deployment Materials to replace, reduce, override, or interfere with, any employee, contractor, professional judgment, inspection, supervision, safety procedure, security measure, operational protocol, quality-control process, backup system, redundancy, warning system, emergency procedure, or other safeguard or failsafe.

10.4 Independent Verification. Customer is solely responsible for independently reviewing, verifying, and validating all outputs, results, data, and information generated through the Program or by the Deployment Materials before taking or refraining from any action based on them. Customer shall maintain all personnel, procedures, systems, safeguards, and independent means of verification that would be required if the Program or the Deployment Materials were unavailable or malfunctioned.

10.5 Assumption of Risk. Customer acknowledges that the Program, the Deployment Materials, and the Deployment Data may: (i) contain errors, defects, inaccuracies, omissions, interruptions, or other failures; (ii) produce incorrect, incomplete, misleading, delayed, or inconsistent results; and (iii) be modified, suspended, or discontinued at any time. CUSTOMER ASSUMES ALL RISKS ARISING FROM ITS USE OF THE PROGRAM, THE DEPLOYMENT MATERIALS, AND THE DEPLOYMENT DATA.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WENDY OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS, SUCCESSORS, OR ASSIGNS (COLLECTIVELY, THE “WENDY PARTIES”), BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR ENHANCED DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, OPPORTUNITY, GOODWILL, REPUTATION, USE, DATA, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THE PROGRAM, ANY DEPLOYMENT MATERIALS, ANY DEPLOYMENT DATA, OR THESE TERMS, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER WENDY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (iii) THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM IS BASED, INCLUDING CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR OTHERWISE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WENDY PARTIES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE PROGRAM, ANY DEPLOYMENT MATERIALS, ANY DEPLOYMENT DATA, OR THESE TERMS SHALL NOT EXCEED THE GREATER OF (x) THE TOTAL AMOUNTS ACTUALLY PAID BY CUSTOMER TO WENDY UNDER THESE TERMS DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (y) ONE HUNDRED DOLLARS ($100). THIS LIMITATION APPLIES IN THE AGGREGATE TO ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES, REGARDLESS OF THE NUMBER OF EVENTS, CLAIMS, OR CLAIMANTS.

THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND ARE A FUNDAMENTAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

Nothing in this Section limits any liability that cannot lawfully be limited or excluded under applicable law.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT SOLELY FOR THE REPAIR AND REPLACEMENT COMMITMENT EXPRESSLY SET FORTH IN SECTION 5.4, THE PROGRAM AND THE DEPLOYMENT MATERIALS ARE PROVIDED “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND.

WENDY, ON BEHALF OF ITSELF AND THE OTHER WENDY PARTIES, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, RELIABILITY, AVAILABILITY, SECURITY, SAFETY, QUALITY, PERFORMANCE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE.

WITHOUT LIMITING THE FOREGOING, WENDY DOES NOT REPRESENT OR WARRANT THAT THE PROGRAM, THE DEPLOYMENT MATERIALS, OR THE DEPLOYMENT DATA WILL BE ACCURATE, COMPLETE, RELIABLE, TRUTHFUL, SAFE, SECURE, ERROR-FREE, DEFECT-FREE, UNINTERRUPTED, AVAILABLE, COMPATIBLE WITH CUSTOMER’S SYSTEMS, SUITABLE FOR ANY PARTICULAR USE, OR CAPABLE OF PRODUCING ANY PARTICULAR RESULT; THAT ANY ERRORS OR DEFECTS WILL BE IDENTIFIED, CORRECTED, OR REMEDIED; OR THAT ANY DATA, OUTPUT, RESULT, ANALYSIS, RECOMMENDATION, ALERT, OR OTHER INFORMATION WILL BE TIMELY, VALID, OR APPROPRIATE FOR RELIANCE.

NO ORAL OR WRITTEN INFORMATION, STATEMENT, ADVICE, COMMUNICATION, DEMONSTRATION, SPECIFICATION, OR DESCRIPTION PROVIDED BY WENDY OR ANY WENDY PARTY SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY SET FORTH IN THESE TERMS. CUSTOMER’S ACCESS TO AND USE OF THE PROGRAM, THE DEPLOYMENT MATERIALS, AND THE DEPLOYMENT DATA IS ENTIRELY AT CUSTOMER’S OWN RISK.

Customer represents and warrants to Wendy that:

(a) Customer has the right to enter into these Terms, to grant the rights granted herein and to perform fully all of Customer’s obligations in these Terms;

(b) Customer’s entering into these Terms does not and will not conflict with or result in any breach or default under any other agreement, rule, regulation, law, or court order to which Customer is subject;

(c) if Customer is an entity, the acceptance of these Terms by the individual doing so has been duly authorized by all necessary internal approvals of Customer; and

(d) Customer is not a consumer and is entering into these Terms for business purposes.

14.1 Scope. All disputes, claims or controversies arising out of or relating to these Terms, the Program, the Deployment Materials, and/or the Deployment Data (“Disputes”) shall be determined exclusively according to this Section 14.

14.2 Informal Resolution. The Parties shall first attempt to resolve any Dispute informally before initiating arbitration. The informal dispute resolution process begins upon receipt of written notice from one Party to the other (“Notice of Dispute”). The Parties must participate in good faith in informal dispute resolution negotiations for at least sixty (60) days after receiving the Notice of Dispute, unless the Parties mutually agree to an extension. The Party sending the Notice of Dispute may not file any demand for arbitration before the 60-day period (or any mutually agreed upon extended period).

14.3 Effect of Non-Compliance. The arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures. If an arbitration is dismissed because a Party willfully failed to comply with these informal dispute resolution procedures, the arbitrator may order the non-compliant Party to pay any arbitration filing fees and costs incurred by the other Party. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in the informal dispute resolution process described in this Section.

14.4 Binding Arbitration. If the Parties cannot resolve a Dispute informally, either Party may elect to have the Dispute finally and exclusively resolved by binding arbitration. Any election to arbitrate by one Party shall be final and binding on the other. The arbitration shall be administered by the American Arbitration Association under its Commercial Arbitration Rules with the following modifications: (a) if the Dispute does not exceed $25,000, the arbitration will be conducted solely on the basis of written submissions, unless the arbitrator determines that a hearing is necessary for any reason, including because a hearing is necessary to afford a Party a full and fair opportunity to present its claims or defenses; and (b) the arbitrator shall make a decision in writing, which will include the findings and conclusions on which the decision is based. The arbitrator has the authority to issue any relief allowed by applicable law, but the arbitrator shall have no authority to issue any relief on any basis other than an individual basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim.

14.5 Location. Arbitration shall be initiated in the County of San Francisco, State of California, United States of America, so that an arbitrator familiar with California law can be appointed, and if the arbitrator determines that the proceedings will take place in person instead of by electronic or telephonic means, the arbitrator will select a location that is reasonably convenient to both Parties with due consideration of their ability to travel and other pertinent circumstances. The Parties agree to submit to the personal jurisdiction of the courts in the County of San Francisco, State of California, United States of America to compel arbitration, to stay the proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Either Party may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

15.1 Changes to These Terms. Wendy may modify these Terms from time to time. Wendy will provide notice of any material change by posting the updated Terms with a revised “Last updated” date and, where Customer has an active subscription, by written notice to Customer. Material changes take effect thirty (30) days after notice. Customer’s continued use of the Program after that date constitutes acceptance of the updated Terms. If Customer does not accept a material change, Customer may terminate in accordance with Section 4.3, and, where Customer is within a committed Subscription Term, Customer may terminate as of the effective date of the change without incurring the accelerated Fees described in Section 4.4.

15.2 Order of Precedence. In the event of any conflict between these Terms and an Order, the Order shall control solely with respect to the number of Sites, the Subscription Term, the connectivity option, and the Fees, and these Terms shall control in all other respects.

15.3 Successors; Binding Effect. Customer may not assign these Terms or any Order to any successor or assign without Wendy’s prior written consent. Wendy may assign these Terms to a successor in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets. These Terms and the obligations and rights of the Parties hereunder shall inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns.

15.4 Relationship of the Parties. The Parties are independent contractors. Nothing in these Terms will be deemed to establish any other relationship between the Parties, such as employer-employee, principal-agent, partners or joint ventures. Neither Party shall contract for or incur any obligations in the name of, or for the account of, the other Party.

15.5 Entire Agreement. No agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either Party which are not expressly set forth in these Terms and the applicable Order.

15.6 Governing Law. These Terms shall be interpreted in accordance with the laws of the United States of America and the State of California without regard to any state’s conflict of law rules.

15.7 Survival. The obligations under Sections 3, 4.6, 5.5, and 6 through 15 shall survive the expiration or termination of these Terms.

15.8 Validity. The invalidity or unenforceability of any provision of these Terms shall not affect the validity or enforceability of any other provision of these Terms, which shall otherwise remain in full force and effect. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will continue in full force and effect.

15.9 Waiver. No waiver by any Party of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of any Party to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

15.10 Headings. All descriptive headings in these Terms are inserted for convenience only and shall be disregarded in construing or applying any provision of these Terms.

15.11 Notice. All notices required under these Terms shall be in writing and shall be deemed delivered: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Notices to Wendy shall be sent to Wendy Labs Inc., 2001 Union Street, Suite 485, San Francisco, CA 94123, United States. Notices to Customer shall be sent to the email and mailing address provided by Customer in its Order. Either Party may change its address information at any time by providing written notice to the other Party in the manner set forth above.

15.12 Electronic Acceptance. Customer’s acceptance of these Terms by electronic means, including by clicking to accept or by placing an Order, has the same legal effect as a handwritten signature.