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TERMS AND CONDITIONS
Acceptance by your company (“Company”) of the equipment request order and your Company’s acceptance and use of the equipment, as well as acceptance by your Company of S/S Vending’s receipt and proceeds accompanying a receipt is further expressly limited and subject to the following terms and conditions (“Standard Terms”):
1. Delivery and Use of Equipment. (a) During the term of this agreement (“Agreement”), S/S Vending Inc. (“S/S Vending”) will deliver and install on Company’s premises as set forth on the face hereof (“Premises”) the equipment specified on the face hereof, together with all related components, including without limitation, air machines, vacuum machines, wiring, electrical conduits, electrical boxes and outlets (collectively, the “Equipment”). S/S Vending will pay Company, within forty-five (45) days after the end of each calendar quarter, a percentage of the revenues collected from the Equipment equal to the commission rate specified on the face hereof (the “Commission Rate”). S/S Vending may, in its sole discretion, modify the Commission Rate upon thirty (30) days prior written notice to Company.
(b) Company will provide an appropriate space and adequate, continuous and uninterrupted electrical service for the Equipment including, without limitation, adequate voltage and amperage for the proper operation of the Equipment, at Company’s sole cost, at a mutually agreed location on the Premises. Company shall permit free and unencumbered access at all times to the general public to allow proper use of the Equipment.
(c) S/S Vending shall have the exclusive rights to operate the Equipment and Company shall not permit the right, use or installation of any other machine, device or equipment providing the same or similar service, coin-operated or not, on the location(s) to any other company or person during the term of this Agreement. Company represents and warrants that it is not subject to or bound by (and the locations are not subject to or bound by) any agreement that is in conflict with or inconsistent with S/S Vending's exclusive rights hereunder. Company shall defend, indemnify and hold S/S Vending harmless from and against any and all loss, liability or expense (including reasonable attorneys fees) incurred in connection with a claim by any other party that it has the right to install, operate and/or maintain air, water and/or vacuum machines, devices or equipment at the Premises.
2. Ownership; Bailment. Delivery of the Equipment by S/S Vending to Company shall at all times be in the form of a bailment; Company shall be deemed to hold the Equipment as bailee subject to and in accordance with the terms of this Agreement. Accordingly, Company acknowledges that the Equipment and the revenues generated from the Equipment, subject to S/S Vending’s obligation to pay Company its share of the revenues pursuant to the terms of this Agreement, are, and shall at all times be and remain, the sole and exclusive property of S/S Vending. Company acknowledges that it has no right, title or interest in or to the Equipment or any portions thereof or improvements thereto and the revenues contained therein. Except for return of the Equipment to S/S Vending, the Equipment shall not be moved or removed therefrom without the prior written consent of S/S Vending. Company shall comply with any and all applicable sign laws indicating that the Equipment is subject to a bailment, and, at Company’s expense, insure that the Equipment is identified at all times as being owned by S/S Vending.
3. Free of Encumbrances. Company shall not have the right to sell, assign, transfer or otherwise dispose of the Equipment, nor the right to pledge, create a lien upon or otherwise encumber the Equipment.
4. Financing Statement. Company acknowledges that S/S Vending may execute and file financing statements under Section 9-505 of the New York Uniform Commercial Code in order to protect its interest in the Equipment and to record this bailment transaction. In that regard, Company irrevocably appoints S/S Vending as its lawful attorney in fact coupled with an interest with full authority, as bailor, to execute and file at any time on Company’s behalf one or more financing statements in respect of the Equipment. Company will also execute from time to time such financing statements and other documents and do such other acts and things, at the expense of Company, as S/S Vending may reasonably request to protect, preserve, perfect and enforce S/S Vending’s ownership interests in the Equipment.
5. Term and Termination. This Agreement is effective for a period of six (6) years commencing on the date hereof (the “Initial Term”). After the expiration of the Initial Term, this Agreement shall continue to renew for successive two (2) year periods until terminated by either party in accordance herewith. After the expiration of the Initial Term, and subject to paragraph 2, either party may terminate this agreement on one hundred eighty (180) days prior written notice to the other. Notwithstanding the foregoing, S/S Vending shall have the right to terminate this Agreement at any time during the Initial Term on sixty (60) days written notice to the Company. Notwithstanding the expiration or earlier cancellation or termination of this Agreement by either party, all Company’s obligations hereunder shall continue until the Equipment is duly removed by or on behalf of S/S Vending in accordance with the terms hereof.
6. Removal of Equipment. (a) Within three (3) days after the expiration, cancellation or termination of this Agreement or after a request from S/S Vending at any time, whether or not there has been a breach of this Agreement by Company, Company shall grant S/S Vending or its agent or representative the right to enter its Premises and have full and unrestricted access to remove the Equipment (“Access”). S/S Vending shall not be responsible for any and all losses, costs, liabilities or damages resulting from or arising out of such removal. The Equipment shall be in good repair, working order and in the same condition as when initially received by Company, less normal wear and tear from proper use prior to removal.
(b) In the event S/S Vending is denied Access for whatever reasons or S/S Vending determines in its sole discretion it is unable, unreasonable or impracticable to remove the Equipment (collectively, “Non-access”), Company will immediately pay to S/S Vending liquidated damages in the sum of Two Thousand Five Hundred Dollars ($2,500.00) per each piece of equipment delivered and installed on Company’s premises, as reasonable compensation for damages sustained by S/S Vending as a result thereof. The parties acknowledge and agree that such liquidated damages are a reasonable forecast of the probable loss as a result of such Non-access. Accordingly, such liquidated amount is agreed upon as liquidated damages and not as a penalty.
7. Warranties. COMPANY ACKNOWLEDGES, ACCEPTS AND CONFIRMS, BOTH ON ITS BEHALF AND ON BEHALF OF ITS EMPLOYEES, AGENTS AND INVITEES, THAT S/S VENDING HAS NOT AND DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES AS TO (i) THE CONDITION, QUALITY OR DURABILITY OF THE EQUIPMENT, ITS SUITABILITY, MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE AND SAME IS HEREBY WAIVED, IT BEING UNDERSTOOD THAT, AS TO S/S VENDING, THE EQUIPMENT IS DELIVERED TO COMPANY “AS IS, WITH ALL FAULTS”, AND (ii) WHETHER THE EQUIPMENT IS FREE FROM ANY CLAIMS OF INFRINGEMENT OR THE LIKE, AND SAME ARE HEREBY WAIVED. COMPANY ACKNOWLEDGES AND AGREES THAT IT SHALL LOOK SOLELY TO THE MANUFACTURER AND/OR SELLER OF THE EQUIPMENT IN THE EVENT OF ANY LOSS OR DAMAGE CAUSED BY, RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE EQUIPMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY OBLIGATION TO DISCOVER OR WARN OF ANY DEFECTS IN THE EQUIPMENT OR DANGERS FROM OPERATING THE EQUIPMENT IMPOSED ON S/S VENDING AS THE OWNER THEREOF IS HEREBY WAIVED AND IS ASSUMED BY COMPANY. UNDER NO CIRCUMSTANCES SHALL S/S VENDING BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, OR LOST PROFITS, EXPENSES OR LOSSES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING REMOVAL OF THE EQUIPMENT.
8. Insurance. Company shall keep the Equipment insured against all risks of loss or damage for not less than the value of the Equipment identified on the face of the applicable equipment request order, and shall carry public liability, contractual liability, comprehensive liability, all perils and property damage insurance and such other insurance as may be specified by S/S Vending. All said insurance name S/S Vending as additional insured, and shall provide that it shall not be altered or canceled without thirty (30) days prior written notice to S/S Vending.
9. Risk of Loss, Damage and Related Matters. (a) Company hereby assumes and shall bear the entire risk of loss, destruction and/or damage to the Equipment from any and every cause from the time the Equipment is delivered to the Premises until same is returned to S/S Vending in accordance with paragraph 6. Company shall give S/S Vending written notice of any claim of damages or injury caused by the Equipment, as well as any damage or destruction of the Equipment, within two (2) days after the occurrence thereof. Company will be responsible for all claims, costs, actions, proceedings, expenses, liabilities and damages concerning the Equipment including, without limitation, the possession, use, operation and return of the Equipment. (b) S/S Vending shall not be responsible for any damage to Company or to any other person whatever or for any other loss, injury or damage in connection with or arising out of the use or operation of the Equipment. Company shall hold S/S Vending free from any losses, liabilities and expenses (including reasonable attorneys’ fees) incurred for any injuries or damages to Company or to any other person arising out of or resulting from the condition, state of repair, upkeep or maintenance of the Equipment, or lack thereof.
10. Choice of Law. This Agreement shall be construed and governed in accordance with the laws of the State of New York, without giving effect to provisions thereof regarding conflicts or choice of laws.
11. Assignment. Company may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of S/S Vending.
12. Entire Agreement; Modifications. This Agreement and the Standard Terms constitute and contain the final, complete and exclusive statement of their agreement with respect to the subject matter hereof. This Agreement may not be modified or amended except by an instrument in writing signed by the party against whom enforcement is sought.
13. Survival. The provisions of paragraphs 7, 9 and this paragraph 13 shall survive the expiration, cancellation and termination of this Agreement.