TERMS AND CONDITIONS
Acceptance by your company (“Customer”) of the equipment request order and your company’s acceptance and use of the Equipment (as defined below), as well as acceptance by your company of S/S Vending’s (as defined below) 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"), Service Station Vending Equipment, LP ("S/S Vending” or "SSVE") will deliver and install on Customer’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 Customer, within forty-five (45) days after the end of each calendar quarter (or more frequently at S/S Vending’s sole discretion), a percentage of the revenues collected from the Equipment equal to the commission rate specified on the face hereof, less all applicable federal, state and local taxes, duties or governmental charges, including, without limitation, sales tax, as well as management or administration fees, telemetry software fees, credit card fees (at such rates as are customarily charged by S/S Vending to other customers) and any expenses directly attributable to the revenue earned by the related Equipment (the “Commission Rate”). S/S Vending may, in its sole discretion, modify the Commission Rate upon thirty (30) days prior written notice to Customer.
(b) Customer 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 Customer’s sole cost, at a mutually agreed location on the Premises. Customer shall be responsible for all snow and ice removal on and around the Equipment. Customer shall ensure 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 Customer 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 Premises or any neighboring property owned or operated by Customer, its affiliated entities, or either of their owners, shareholders, directors or officers, to any other company or person during the term of this Agreement. Additionally, in the event there is equipment that is on the Premises that is not S/S Vending Equipment, Customer will remove said equipment. Customer represents and agrees 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 and that neither (i) Customer’s entering into this Agreement, nor (ii) Customer’s removing said equipment, will violate any other agreement, whether oral, written or other, to which Customer is a party or by which Customer is bound. If Customer requests that S/S Vending remove the equipment, Customer hereby authorizes S/S Vending to remove the equipment and represents and warrants that S/S Vending’s removal of said equipment will not violate any other agreement, whether oral, written or other, to which Customer is a party or by which Customer is bound and such removal will not expose S/S Vending to any liability. Customer shall then be responsible for the disposal of the equipment removed. Customer shall defend, indemnify and hold S/S Vending harmless from and against any and all loss, liability, damage, claim, action, proceeding or expense (including reasonable attorneys’ fees) of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against S/S Vending 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 or any neighboring property owned or operated by Customer, its affiliated entities, or either of their owners, shareholders, directors or officers or in connection with any claim by any other party arising out of, or resulting from, the removal of any equipment by Customer or S/S Vending. Any and all amounts due for indemnity hereunder shall be paid as such amounts are incurred, and in any event, within ten (10) days after written demand therefor.
2. Ownership; Bailment. Delivery of the Equipment by S/S Vending to Customer shall at all times be in the form of a bailment; Customer shall be deemed to hold the Equipment as bailee subject to and in accordance with the terms of this Agreement. Accordingly, Customer acknowledges that the Equipment and the revenues generated from the Equipment, subject to S/S Vending’s obligation to pay Customer 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 and S/S Vending may, at any time, elect to place advertising on the Equipment. Customer 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 as otherwise specifically stated herein. 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, which may be withheld for any reason or no reason at all. In that regard, upon Customer’s request or upon its own initiative, S/S Vending may, in its sole discretion, replace the Equipment at any time and without notice to Customer. If, at Customer’s request, S/S Vending decides to replace the Equipment, S/S Vending shall have the right to charge Customer for the cost of the new Equipment. Customer shall comply with any and all applicable sign laws indicating that the Equipment is subject to a bailment, and, at Customer’s expense, insure that the Equipment is identified at all times as being owned by S/S Vending.
3. Free of Encumbrances. Customer 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. Customer 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, Customer 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 Customer’s behalf one or more financing statements in respect of the Equipment. Customer will also execute from time to time such financing statements and other documents and do such other acts and things, at the expense of Customer, as S/S Vending may reasonably request to protect, preserve, perfect and enforce S/S Vending’s ownership interests in the Equipment. Additionally, Customer grants to S/S Vending a security interest and a lien upon all assets of Customer, including, but not limited to, any and all gas station equipment, inventory, auto repair equipment and machinery, buildings, and fixtures (“Collateral”), to secure the performance of obligations and payment of indebtedness under this Agreement and agrees to take whatever actions are requested by S/S Vending to perfect and continue S/S Vending’s security interest in the Collateral.
5. Term and Termination. a) 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 Customer. Notwithstanding the expiration or earlier cancellation or termination of this Agreement by either party, all Customer’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. (b) In light of the difficulties in estimating the damages for an early termination of this Agreement by Customer, Customer shall reimburse S/S Vending for any legal, court or other costs incurred by them in enforcing their rights or remedies under this Agreement and will pay to S/S Vending liquidated damages in the sum of ten (10) dollars per each day remaining in the current Term of the Agreement, 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 early termination. Accordingly, such liquidated amount is agreed upon as liquidated damages and not as a penalty. Further, in the event of any action at law or in equity necessary to enforce the terms of this Agreement, S/S Vending shall be entitled to recovery of its legal fees and expenses incurred in connection therewith.
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 Customer, Customer 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, and the same is hereby waived by Customer. The Equipment shall be in good repair, working order and in the same condition as when initially received by Customer, 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”), Customer will immediately pay to S/S Vending liquidated damages in the sum of Three Thousand Dollars ($3,000.00) per each piece of Equipment delivered and installed on the 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. CUSTOMER 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 CUSTOMER “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. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT SHALL LOOK SOLELY TO THE MANUFACTURER OF THE COMPONENTS 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 CUSTOMER. UNDER NO CIRCUMSTANCES SHALL S/S VENDING BE LIABLE TO CUSTOMER 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, WITHOUT LIMITATION, REMOVAL OF THE EQUIPMENT. THE MAXIMUM LIABILITY OF S/S VENDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE LIMITED TO THE REVENUE COLLECTED BY THE S/S VENDING FROM THE EQUIPMENT LESS ANY COMMISSION PAYMENTS MADE TO CUSTOMER HEREUNDER.
8. Insurance. Customer 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. Customer 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.
10. Representations and Warranties.. Customer hereby warrants and represents to S/S Vending that on the date hereof and during the term of this Agreement Customer has all corporate authority to perform its obligations arising pursuant to this Agreement, including, without limitation, the right to enter into this Agreement and grant the rights being granted herein and compliance with the terms of this Agreement will not conflict with or violate any other agreement or understanding to which Customer is a party or is bound. The individual signing this Agreement represents and warrants that they are authorized to sign on behalf of Customer and to bind Customer, and that S/S Vending is fully entitled to rely conclusively upon any action taken by the individual as having been taken on behalf of the Customer. Customer shall execute and deliver such additional documents, instruments, conveyances, and assurances and take such further actions as may be required to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.
11. Choice of Law; Venue. 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. Any action commenced in connection with this Agreement or any of the transactions contemplated hereby shall be brought in a federal or state court located in the United States of America, State of New York, County of Nassau. Customer irrevocably submits itself to jurisdiction in the State of New York and venue in any state or federal court in the County of Nassau for such purposes, and Customer waives any and all rights to contest said jurisdiction and venue and the convenience of any such forum. Customer further waives any rights to commence any action against S/S Vending in any jurisdiction except in the County of Nassau and State of New York
12. Assignment.. Customer 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. Customer agrees that if there is a change or transfer in ownership of Customer’s business prior to completion of this Agreement, Customer shall require the new owners to assume Customer’s duties and obligations contained in this Agreement. Customer shall remain liable under this Agreement until such time as the new owners agree to assume Customer’s duties and obligations under this Agreement. S/S Vending may assign its rights under this Agreement, in whole or in part, to any third party and this Agreement shall inure to the benefit of and shall be binding upon the assignee of S/S Vending.
13. Cumulative Remedies.. All of S/S Vending’s rights and remedies hereunder shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available under applicable law. Failure by of S/S Vending to exercise any right, remedy or option hereunder or under applicable law, or delay in exercising same, will not operate as a waiver, it being understood that no waiver by of S/S Vending will be effective unless it is in writing and signed by of S/S Vending, and then only to the extent specifically stated.
14. Severability.. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms or provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. Further, to the extent that any terms or provisions hereof are deemed invalid, void or otherwise unenforceable, but may be made enforceable by amendment thereto, the parties agree that such amendment may be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied in any such jurisdiction in which enforcement is sought.
15. 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 or through the acceptance of receipt of commission.
16. Survival.. The provisions of paragraphs 7, 9, 11 and this paragraph 16 shall survive the expiration, cancellation and termination of this Agreement.