STANDARD TERMS AND CONDITIONS OF SALES CONTRACT
THIS SALES CONTRACT IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
- This Sales Contract shall be effective only when accepted by a duly authorized officer of Tulsa Cash Register, Inc, DBA Anthem Business Solutions (ABS). The System Proposal which lists the system being purchased, price and payment terms, shall be deemed a part of this Sales Contract and incorporated by reference, hence referred to as Sales Contract. Any financing documents executed in connection with this Sales Contract, including, but not limited to, any promissory note, security agreement, or financing statement, shall be deemed a part of this Sales Contract. For this Sales Contract, Software Products are defined as all software, either licensed from a 3rd party software developer, subscribed to from a 3rdparty, or developed by ABS; Hardware Products are defined as any provided product either electrical or non-electrical which is not considered Software Products, which includes, without limitation computers, printers, battery backups, filters, network equipment, routers, firewalls, hand helds, tablets, displays, network wiring, and mounting devices. 3rd party Software Products are provided and licensed according to the software license agreements of the 3rd party software providers; Products is defined as both Software Products and Hardware Products.
- ABS retains title, ownership, and right of possession of the Products (defined as all of the products listed in this Sales Contract and any addenda including, without limitation, hardware, software, network wiring and services) purchased or licensed hereunder until delivery or shipment of the Products; upon delivery or shipment, ABS or any 3rd party software, continues to retain title to the Software Products, and extends to Customer a license for the Software Products in accordance with the terms of paragraph 18 hereof. If Customer does not pay the sums due under this contract, as and when such sums are due, then ABS shall have and may exercise all rights and remedies available to it at law or in equity, including, without limitation, the immediate right to enter any premises where the Products are located and to take possession of the Products with or without notice or demand and with or without legal proceedings; in such event, Customer will pay upon demand a reasonable Product rental fee and will reimburse ABS for all expenses that ABS reasonably has incurred including, without limitation, un-reimbursed training and installation expenses, attorneys’ fees, and court costs. The parties agree that this Sales Contract and the license terms hereunder constitute an executory contract in accordance with Section 365 of the US Bankruptcy Code; and therefore, in the event Customer is in default and files for bankruptcy, this Sales Contract and the licensing terms of the Software Products shall terminate unless Customer cures all defaults. The foregoing rights and remedies are not and shall not be deemed to be ABS’S exclusive remedies. Customer agrees to maintain insurance equal to the sums due under this contract naming ABS as the loss payee, in the event of Products are destroyed, loss, damaged or stolen, until all sums due are paid to ABS. Customer also agrees to sell or move Products from the installation location until all sums due under this contract have been paid to ABS.
- ABS will endeavor in good faith to deliver Products purchased or licensed by Customer pursuant to this Sales Contract within the time provided by the Customer in writing at the time this Sales Contract is signed. ABS shall not be liable for any delay in delivery or failure to deliver. All claims for shortage or damage before delivery shall be deemed waived unless Customer delivers written notice of a claim to ABS within ten days after delivery of the Products to Customer. Upon shipment or delivery, Customer bears all risk of loss or damage to the Products from any cause whatsoever.
- The down payment amount listed on this Sales Contract is not refundable; it reflects reimbursement to ABS of the costs of systems consultation services associated with site evaluation, system presentation and/or programming documentation of the Products, and order processing.
- The prices listed in this Sales Contract include initial programming and training of personnel in the use and operation of the Products only when expressly indicated. If ABS is providing training, training will be provided only to Customer’s employees, and ABS’s sole obligation for training will be to supply a qualified instructor for the designated number of training hours. ABS’s does not guarantee that, after such training, the trainees will be able to use or operate the Products properly. Upon Customer request, ABS will provide additional training time beyond the amounts stated in this Sales Contract at ABS’s then-prevailing rates for training. Customer also agrees to pay all travel, accommodations and other reasonable expenses incurred by ABS employees, subcontractors or agents in connection with providing programming, installation, and training hereunder. ABS shall endeavor to obtain reasonable available airfares and will not travel first class. Travel and related expenses will be invoiced when incurred by ABS and shall be paid by Customer within 30 days of the date of the invoice.
- The prices listed in this Sales Contract do not include installation of the Products, except as otherwise designated herein. Customer is solely responsible for installation of the requisite AC power lines. ABS does not provide electrical cabling service, and shall not be responsible for the inspection of such electrical installation. Customer acknowledges receipt of documentation concerning the requirements for dedicated, isolated, and insulated AC power lines for all Products. Customer acknowledges and agrees that ABS’s warranty is conditioned upon Customer’s providing environmental and operating conditions conforming to ABS’s specifications.
- ABS warrants that, upon delivery, the Hardware Products shall be in good working order. For a warranty period defined in this Sales Contract, should any part of the Hardware Products prove to be defective in material or workmanship, ABS will repair or replace such part at no charge to Customer, including parts and labor. Warranty service is available six (6) days per week from 8:00 AM to 5:00 PM, excluding holidays. ABS (or its authorized service representative) will bill Customer at the then-prevailing rate for any labor charges (including travel) for warranty service performed at Customer’s request outside of the foregoing time periods. ABS will provide Customer with hardware warranty service based on the Maintenance Terms and Conditions document in effect on the date that Customer signs this Sales Contract. Customer may view the Maintenance Terms and Conditions document and may request in writing a copy of the Maintenance Terms and Conditions document. ABS will provide a copy of the applicable document upon request. THIS IS THE ONLY WARRANTY MADE AS TO THE HARDWARE PRODUCTS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND USE. ABS’s SOLE OBLIGATION UNDER THIS WARRANTY IS LIMITED TO THE REPAIR OR REPLACEMENT OF THE HARDWARE PRODUCTS OR PARTS THEREOF. Warranty coverage will not be extended for repairs made necessary by damages due to fire, water, storm, burglary, power line fluctuations, spillage, accident, negligence, or abuse. The warranty specifically excludes damages to printer heads or printer motors caused by paper jams or insertion of foreign objects between the printer head and the print surface. Only upon Customer request and only after Customer approves the estimated costs to repair will ABS repair or replace equipment damaged by one or more of the foregoing causes or events.
- IN NO EVENT SHALL ABS, ITS SUBSIDIARIES AND AFFILIATES, OR ITS OR THEIR EMPLOYEES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER INCIDENTAL, PUNITIVE, OR ECONOMIC DAMAGES (INCLUDING THOSE ASSOCIATED WITH IMPROPER, UNDER-CALCULATED OR UNDER-ACCRUED TAXES OR GOVERNMENT LEVIES). ABS SHALL NOT BE RESPONSIBLE FOR AND DISCLAIMS ANY LIABILITY ASSOCIATED WITH FAILURE TO PROCESS CREDIT CARD TRANSACTIONS. ABS SHALL NOT, BY REASON OF THE DISCONTINUATION OR MODIFICATION OF THE PRODUCTS OR ANY ABS PRODUCTS OR THE TERMINATION OR NON-RENEWAL OF THIS AGREEMENT, BE LIABLE TO CUSTOMER FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS, OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN CONNECTION WITH THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF CUSTOMER’S BUSINESS. CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS, ABS, ABS’S EMPLOYEES OR VENDOR USED BY ABS, FROM ANY LIABILITIES, LOSSES, DAMAGES, INJURIES, FOR ANY REASON WHATSOEVER. EXCEPT FOR EXPRESS WARRANTIES STATED IN THIS AGREEMENT, IF ANY, THE PRODUCTS (INCLUDING HARDWARE AND SOFTWARE) AND ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED WITH ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE CUSTOMER. As indicated in this Sales Contract, if any, certain hardware items are subject only to supplier or manufacturer warranties, which ABS will pass through to Customer when and to the extent permitted to do so by the manufacturer or supplier.
- It is the Customer’s responsibility to have and maintain in place virus, spyware, malware protection software, two factor authentication software/hardware and security for all of its systems and data, which such security includes firewalls, passwords, physical security, and access control policies. If Customer’s systems have connections to the Internet, or transmit credit card, debit card, check, account card, gift card, or other sensitive transactions over the Internet, or use ABS or 3rd party SSL to transmit credit card, debit card, check, account card, gift card, or other sensitive transactions, or otherwise have persistent connections to any network where there is potential for unauthorized access, Customer acknowledges that the security and protection of the network and the data and applications on that network, including protections against unauthorized access, is solely and entirely Customer’s responsibility. A properly configured firewall is required for each site using a persistent connection to the public Internet or any private network where there is a potential for unauthorized access to the system Network. Customer acknowledges that, to be effective, virus, spyware, malware protection software, system passwords, and other security software require periodic and routine updates, which Customer must obtain from its supplier or the manufacturer, as appropriate. For software licensed directly to the Customer, Customer hereby appoints ABS as Customer’s agent, to access technical or other services, load software and use tools related to the directly licensed software on Customers behalf and only for the directly licensed. Customer acknowledges that (a) as Customer’s agent, ABS, is authorized to interact with the software manufacture on Customer’s behalf and to bind Customer regarding the services, software and tools associated with the directly licensed software, and (b) while ABS is acting as the Customer’s agent, all access to the services, software, and tools associated with the directly licensed must be through ABS. ABS DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT, AFTER THE INITIAL INSTALLATION BY ABS OF ANY PROPRIETARY SOFTWARE, THE SOFTWARE OR CUSTOMER’S DATA WILL REMAIN VIRUS-FREE, SPYWARE-FREE, MALWARE-FREE. SUPPORT OR SERVICES HEREUNDER NECESSITATED BY COMPUTER VIRUS, SPYWARE, MALWARE OR BY ANY FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, INCLUDING, WITHOUT LIMITATION, DAMAGE CAUSED BY PERSONS LACKING AUTHORIZED ACCESS, ARE NOT COVERED UNDER THIS AGREEMENT, AND WILL BE SUPPLIED ONLY UPON CUSTOMER REQUEST AND ON A REASONABLE EFFORTS BASIS, ON A TIME-AND-MATERIALS BASIS AT STANDARD ABS RATES. CUSTOMER WAIVES ANY CLAIMS HEREUNDER AGAINST ABS TO THE EXTENT ARISING FROM CUSTOMER’S FAILURE TO HAVE OR MAINTAIN CURRENT VIRUS, SPYWARE, MALWARE PROTECTION, OR TO THE EXTENT ARISING AS A RESULT OF A FAILURE OR BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA, OR AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS, WHICH SUCH UNAUTHORIZED ACCESS CUSTOMER ACKNOWLEDGES CANNOT IN ALL CASES BE PREVENTED EVEN IF REASONABLE STEPS HAVE BEEN TAKEN. IF REQUESTED BY CUSTOMER, ABS SHALL PROVIDE, ON A REASONABLE EFFORTS AND ON A TIME-AND-MATERIALS BASIS, SUPPORT OR SERVICES TO ADDRESS DAMAGE CAUSED BY, BUT NOT LIMITED TO, ANY OF THE FOLLOWING: CUSTOMER’S FAILURE TO HAVE CURRENT VIRUS, SPYWARE, MALWARE PROTECTION; CUSTOMER’S FAILURE TO MAINTAIN VIRUS, SPYWARE, MALWARE PROTECTION; DAMAGE ARISING AS A RESULT OF A FAILURE OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA; DAMAGE ARISING AS A RESULT OF A BREACH OF CUSTOMER’S SECURITY FOR ITS SYSTEMS OR DATA; OR DAMAGE AS A RESULT OF ANY UNAUTHORIZED ACCESS TO CUSTOMER’S SYSTEMS. SUCH SUPPORT AND SERVICES SHALL BE BILLED AT THE PREVAILING STANDARD ABS RATES. CUSTOMER ACKNOWLEDGES THAT CREDIT CARD PROVIDERS, CHECK PROCESSORS, BANKS, AND CREDIT CARD PROCESSING COMPANIES IMPLEMENT AND REQUIRE SPECIFIC PROCEDURES AND POLICIES IN CONJUNCTION WITH THEIR CARDS AND SERVICES. CUSTOMER SHALL BE SOLEY RESPONSIBLE FOR COMPLIANCE WITH ALL POLICIES, RULES, REGULATIONS, AND PROCEDURES REQUIRED BY THE CREDIT CARD COMPANIES, CHECK PROCESSORS, BANKS, AND/OR PROCESSORS IT ELECTS TO ACCEPT OR UTILIZE.
- This Sales Contract, and any attachments hereto, constitute the entire agreement between Customer and ABS with respect to its subject matter. Only a writing signed by both Customer and ABS is effective to amend this Sales Contract. Customer expressly represents to ABS that no officer, employee, representative, or agent of ABS has made or entered into any oral agreement, promise, or understanding which conflicts with any of the terms set forth in this Sales Contract. The terms of this Sales Contract shall supersede any inconsistency or conflict between this Sales Contract and the terms and conditions of any purchase order, receipt, or other transaction-related document that Customer may issue in connection with this Sales Contract. ABS rejects all terms of Customer’s purchase order, receipt, or other transaction-related document that would be in addition to the terms hereof, and none of such additional terms are binding on ABS.
- This Sales Contract shall be governed by and construed according to the laws of the state of Oklahoma. The parties mutually consent to exclusive jurisdiction and venue in the state and federal courts sitting in the State of Oklahoma, in Tulsa County, for all matters arising under or relating to this Sales Contract, whether based on contract, tort, or otherwise. ABS AND CUSTOMER EACH UNCONDITIONALLY AND IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND/OR THE RELATIONSHIP BETWEEN THE PARTIES, WHICH WAIVER IS INTENDED TO INCLUDE, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
- Customer agrees that ABS has a substantial financial investment in its employees and the loss of an employee would cause a substantial financial loss to ABS. Customer agrees not to solicit ABS’s employees, for employment or for hire. Customer will not, on the Customers own behalf or on behalf of any other person, partnership, association, corporation, or other entity, solicit or in any manner attempt to influence or induce any employee of the ABS or its subsidiaries or affiliates (known by the Customer to be such) to leave the employment of the ABS or its subsidiaries or affiliates, or do work for Customer or any other person, partnership, association, corporation, or other entity , nor shall he use or disclose to any person, partnership, association, corporation or other entity any information obtained while an employee of the ABS concerning the names and addresses of the Company’s employees, or Customer agrees to compensate ABS the amount of $75,000.00 immediately upon the departure of the employee from ABS or the engagement of the ABS employee, as liquidated damages, and not as a penalty.
- This Sales Contract shall be binding and inure to the benefit of ABS and Customer, and to the successor or assigns of the entire business and assets of either of them (or of that part of the business and assets of either used in the performance of this Sales Contract). Customer acknowledges and agrees that ABS will and is permitted to subcontract certain of its obligations under this Sales Contract to ABS’s authorized service representatives. Customer shall not engage any third parties, other than ABS, to provide any implementation services hereunder. This Sales Contract is not otherwise assignable by either party without the written consent of the other party. If a court of competent jurisdiction holds any provision of this Sales Contract to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of any provision of this Sales Contract shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof. No waiver shall be effective unless made in writing and signed by the waiving party.
- CUSTOMER AGREES THAT IT HAS THE SOLE RESPONSIBILITY TO VERIFY ALL SYSTEM PROGRAMMING, INCLUDING BUT NOT LIMITED TO, ITEM PRICING, ITEM COSTS, VENDOR INFORMATION, EMPLOYEE INFORMATION, MENU ITEM PRICING, EMPLOYEE LABOR RATES, ANY AND ALL SALES TAX AND/OR ANY AND ALL LIQUOR TAX PROGRAMMING AND THE ANY AND ALL SPECIFIC SALES TAX RATE PROGRAMMING. In any case, the responsibility to collect and pay tax is the responsibility of the customer. Customer agrees that it has the sole responsibility to verify the credit card deposit information in the point of sale system, the deposit amounts at the customer’s bank and timeliness of the deposits.
- Customer agrees to pay all invoices for products or services, according to the terms of the invoices and to pay finance charges of 1.5% per month on all past due invoices. Customer agrees that all payments will be applied to any unpaid finance charges first and then to the unpaid invoice amounts.
- ABS shall have the right to terminate any order, or to delay the delivery or shipment thereof, by reason of the filing of bankruptcy or insolvency proceedings relating to Customer, breach by Customer of any of the material terms of this Sales Contract, assignment by Customer without advance written approval, the pendency of any proceedings against Customer, or Customer’s failure to meet any other reasonable requirements established by ABS. Assent of Customer to the terms and conditions of sale set forth herein shall be conclusively presumed from failure of Customer reasonably to object in writing or from acceptance by Customer of all or any part of the material ordered.
- Any ABS Products returned due to changes in configuration will be subject to a restocking fee of 20% of the cost of the Products. Software cannot be returned. If ABS determines that the Products have been used, ABS will assess a charge of up to 50% of the cost of Products. Orders placed by the Customer shall be subject to emergency processing charges as follows: emergency breakdown fees for Software Products and spare parts for Hardware Products are $100 for every 3 item lines requested by Customer to be shipped within 24 hours and $50 for every 3 item lines requested by Customer to be shipped within 48 hours. If Customer requests (and ABS approves) that Hardware Products be shipped within 5 business days, an express fee in the amount of 5% of the order’s value (maximum of $500) will be added to the invoice.
- Upon payment in full of all sums due under this Sales Contract, ABS grants to Customer a nonexclusive nontransferable license to use the Software Products identified in this Sales Contract only on the Hardware Products sold hereunder, subject to all of the terms hereof. Customer’s use of the Software Products (whether or not on any hardware sold hereunder) constitutes agreement to these license terms. The Software Products are licensed, not sold, and ABS reserves all rights not granted hereunder. Customer may not reverse engineer, decompile, modify, or disassemble the Software Products. The performance of the Software Products is conditioned upon Customer providing environmental and operating conditions (including network, third-party software, hardware, and configuration) in accordance with ABS specifications; Customer waives any warranty claims with respect to the Software Products if the environmental and operating conditions do not meet ABS specifications. ABS will not provide software support and/or upgrades to Customer unless Customer purchases help desk support service or prepaid support contracts and a software enhancement license (“SEL”). If purchased hereunder, ABS will provide Customer help desk support service, prepaid support contracts, SEL and/or credit card support services (“CAEDC”) on the terms and conditions of the most current version of the Maintenance Terms and Conditions in effect on the date that Customer signs this Sales Contract. Customer may request a copy of the Maintenance Terms and Conditions document by contacting ABS. In the event that Customer requests that ABS assist Customer in connection with internal control evaluation, audits or reporting (including without limitation those in connection with Sarbanes-Oxley compliance), ABS shall charge Customer at its prevailing standard hourly rates.
- Access to Equipment. ABS shall have full and free access to the equipment to provide service thereon.
a. Remote Access. ABS maintains a system which allows remote access to the Customers POS System (“Remote Access”). Provided that the Customer has entered into and has a current Remote Access contract, Customer agrees to allow ABS to allow Remote Access to all ABS technicians. As of the date hereof, the Customer authorizes ABS to allow Remote Access to these technicians. The Customer shall have the right from time to time, upon not less than three (3) days prior written notice to ABS: (i) to authorize ABS to allow Remote Access to additional persons, and (ii) to authorize ABS to prohibit Remote Access to any person for Remote Access; provided, however, that the Customer shall not have the right to limit Remote Access by ABS’s employees. ABS shall have the right from time to time to alter the means for Remote Access, including, without limitation, designating the means of access and user names/numbers and passwords.
b. Limitation of Liability. ABS shall have no liability to the Customer of any nature whatsoever arising or resulting from or connected with the access to, use of, or the denial of access to or use of, Customer’s POS System via Remote Access, provided that such access, use, or denial of access or use has been authorized by Customer in accordance with this Agreement. Customer shall indemnify, defend, and hold ABS harmless from, and reimburse ABS for, any loss, fee, cost, expense, damage, liability or claim (including, without limitation, reasonable attorneys’ fees and costs) arising out of, based upon, or resulting from the access to, use of, or the denial of access to or use of, Customer’s POS System via Remote Access which has been authorized by Customer in accordance with this Agreement.
c. Term and Termination; Survival. This Agreement shall commence as of the date hereof, and may be terminated at any time by either party upon not less than thirty (30) days prior written notice given by the terminating party to the other. Upon the effective date of the termination of this Agreement, all persons then authorized by the Customer to have Remote Access (other than the employees of ABS) shall cease to have Remote Access. ABS shall have the right to deny Remote Access to any person at any time and without notice to the Customer if the Customer is not covered by a current NSM contract. The obligations of the Customer under Section 2 above shall forever survive the termination of this Agreement.
d. Notices. All notices hereunder shall be given in writing via registered or certified mail, return receipt requested, postage pre-paid, or overnight courier.
- POSaaS. If a POSaaS (Point of Sale as a Service) transaction, payments will be made via auto draft of the customer’s checking account or from a customer’s credit card. Customer agrees to maintain the POSaaS payments for a minimum of 36 months, unless otherwise specified. IF CONTRACT IS TERMINATED, FOR ANY REASON OUT OF THE CONTROL OF ABS, BEFORE THE MINIMUM NUMBER OF MONTHS SPECIFIED, THE BALANCE IS DUE IN FULL. No on-site service is provided under a POSaaS agreement unless the option is specified on the proposal. Payments continue indefinitely after the minimum has been met and includes the services specified or all equipment must be returned to ABS offices in good condition at the customer’s expense. Payments do not include sales tax which will be added to the monthly payment. Equipment remains the property of ABS. Customer agrees to maintain insurance on the equipment while in under contract and name Tulsa Cash Register as an also insured. No value is accumulated toward a buyout of the POSaaS contract. The customer accumulates value in the system.
20.1 Term. ABS will provide the System and services under this agreement beginning on the installation date and continuing each month for36 months unless terminated earlier pursuant to this agreement. This agreement shall automatically renew for successive 12 month periods unless either party provides notice of cancellation at least 45 days prior to the end of the then current term.
20.2 Payment. Customer will pay the set-up and implementation fee at time of agreement execution unless otherwise agreed in writing. Upon Delivery of the System to the customers’ location, and each month going forward, ABS will debit the customers bank account for the Monthly Fee including applicable taxes. At its discretion, ABS may initiate a pro-rated monthly payment to adjust the recurring payment date, or use a third party to collect payment. ABS reserves the right to collect any fees resulting from insufficient funds or returned debits. ABS may increase the Monthly Payment or implement other fees as reasonably required to cover additional costs incurred by ABS in providing the System. ABS shall provide 30 days written notice to customer of any pricing changes and explanation of the basis for the price change. Customer may elect to surrender the system during the notice period, prior to the end of the agreement, without penalty. Customer agrees that all payments are due in advance and should a monthly payment become past due by more than fifteen (15) days, ABS may cease providing support services, including but not limited to disabling the System.
20.3 Use of Equipment and Software. Customer will use the System in a lawful manner, only as intended in the ordinary operation of the System, at the location set forth. Customer will keep the System equipment in a safe environment and maintain the equipment pursuant to the specifications and recommendations as provided by ABS. Customer will maintain broadband internet service, at Customer’s expense, throughout the term of this agreement. The use of any software provided by ABS under this agreement is limited solely to use in conjunction with the provided System equipment and contingent upon Customer’s agreement to all software developers End User Licenses. Customer understands and agrees to maintain and operate the System, at all times, in conformance with any and all applicable laws and regulations, including adherence to the Payment Card Security Data Security Standard (PCI-DSS).
20.4 Support. Customer will receive support services Monday thru Saturday 8am to 5pm at no charge as outlined under this agreement identified below. 24x7x365 support is available by paying for after-hours labor only. Parts are included after hours except were exclude in this agreement.
20.5 Software. ABS will provide all new versions, updates and bug fixes to the System software, as provided by the software manufacturer, at no additional charge.
20.6 Hardware Replacement. ABS will replace or repair any hardware component of the System which fails to operate when being used in a normal, customary and prescribed manner. Any required service due to misuse, abuse or by any fault of the customer, shall incur service charges at ABS current time & material rates. Customer acknowledges and agrees that determination as to the reason for failure and Customer’s negligence will be determined solely by ABS. ABS may, at its expense, provide replacement equipment while the System equipment is being repaired. ABS may replace a defective component of the System using new parts or parts manufactured from new, refurbished, or serviceable used parts that are functionally equivalent to new. Charges may apply for additional services provided at the time of repair or replacement.
20.7 Support Limitations. Support service provided under this agreement does not include:
20.7.1 Excluded Repairs and Materials. Except as provided in Section 4(b) above, Customer assumes and will bear all risk of failure, loss or damage to the System equipment from any and every other cause whatsoever including, and ABS is under no obligation to replace, failure caused by the failure or interruption of any third party software or hardware, including all credit card processing, music, internet, communications or other related device. As provided for herein, Customer is required to insure all System equipment against loss or damage. No loss or damage to the System equipment or any part of the equipment will reduce or terminate any obligation of Customer under this agreement which will continue in full force and effect through the term.
20.7.2 Data Loss. This agreement does not cover any defects or damage to any software or data residing in the System under any circumstance and regardless of whether replaced or repaired by ABS. When providing repair or replacement service, ABS will use reasonable efforts to reinstall the equipment’s prior System software configuration but will not provide any recovery or transfer of software or data not originally included with and as part of the System equipment. Customer agrees that ABS may install newer versions, updates or fixes of the System equipment software than were installed on Customer’s System equipment prior to any repair or replacement.
20.7.3 Consumables and Other Materials. This Plan does not cover, and ABS is not responsible for, replacement or repair of materials such as printer paper, ink, batteries or other consumables, any hardware or software not provided by ABS with and as part of the System equipment or cosmetic damage. Customer shall purchase consumable supplies (printer paper & ribbons) from ABS or from a vendor as specified by ABS.
20.7.4 Other Equipment. Replacement and repair under this Plan does not cover installation, removal, repair, maintenance or reinstallation of equipment that is not part of the System including any accessories, attachments, or other devices working in conjunction with or near the System such as internet modems, routers or wireless radio units, music service equipment or electrical service external to the System.
20.7.5 Internet. This agreement does not provide or include the cost of broadband internet service and such is a requirement and the sole responsibility of the Customer, unless such service is provided by ABS.
20.7.6 Virus, Security & Malware. ABS does not represent or warrant that the System will be free of viruses, malware or other security related incidents, including data compromise. Services required to address viruses, malware or security related incidents are not covered by this agreement.
20.7.7 Support Availability. ABS does not represent, warrant or guarantee in any way that service personnel will be available at all or on-site or that they may respond to a service request other than on an as-available basis.
20.7.8 Preventative Maintenance. This agreement does not provide preventive maintenance for System equipment.
20.8 Limitation of Liability. ABS MAKES NO EXPRESS, IMPLIED, OR STATUTORY WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF DESIGN, OR ANY WARRANTY ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE. SUCH EQUIPMENT AND SERVICES ARE PROVIDED AS IS. ABS SPECIFICALLY DOES NOT REPRESENT OR WARRANT THAT IT WILL BE ABLE TO (i) REPAIR OR REPLACE THE EQUIPMENT WITHOUT RISK TO OR LOSS OF PROGRAMS OR DATA, AND (ii) MAINTAIN THE CONFIDENTIALITY OF ANY CUSTOMER DATA. ABS’S LIABILITY UNDER ANY THEORY OF LAW WHATSOEVER IS LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO ABS IN THE PAST 12 MONTHS. IN NO EVENT SHALL ABS HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USE OF EQUIPMENT OR FACILITIES, INTERRUPTION OF BUSINESS OR THE DISCLOSURE OR FAILURE TO MAINTAIN THE CONFIDENTIALITY OF DATA OR ARISING IN ANY WAY FROM THIS PLAN UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT ABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
20.9 Surrender. The System is, and will at all times be and remain, the sole and exclusive property of ABS. Customer will have no right, title or interest in the System except for use in the operation and ordinary course of business as set forth in this agreement. Upon expiration of the Term or earlier termination of this agreement, Customer will return the System to ABS, in good repair, condition and working order, except for ordinary wear and tear resulting from its use as intended, by delivering the System equipment at Customer’s cost and expense to the address specified by ABS.
20.10 Encumbrances. Customer will not grant any security interest in the System to a third party, will specifically exclude it from any equipment, fixture, floor or blanket secured financing and will otherwise keep it free and clear of all levies, liens and encumbrances including any that may arise from Customer’s failure to pay any assessments, taxes or similar governmental charges.
20.11 Merchant Processing. ABS may recommend or enroll Customer in merchant processing services. ABS may receive compensation from third parties for recommending or enrolling customer in these services, and ABS may provide discounts or rebates to Customer based on future compensation. Should Customer change merchant processing service providers during the term of this agreement, Customer acknowledges that the monthly fee will be adjusted to remove any merchant processing discounts and agrees to repay ABS any rebate or discount applied during the prior 12 month period.
20.12 Default. Any Customer default, including any failure to pay the monthly service fee when due or declaration of bankruptcy, will not relieve Customer from its obligation to pay all monthly service fees as they come due or any other obligation under this agreement. If Customer fails to pay any monthly service fees or other amount due within fifteen (15) days after the same is due and payable or to perform any other obligation under this agreement, ABS may: (i) terminate this agreement; (ii) take possession of the System, and (iii) shut down operation of the System remotely. ABS may exercise these rights without demand or notice, wherever located, and without court order or other process of law. Customer grants ABS any license, permission or other grant or right necessary to enter and be upon the premises where the System is located, in order to effect its possession under this section. Customer waives any and all damages occasioned by such taking of possession. These remedies are cumulative, and may be exercised concurrently or separately.
20.13 Credit Disclosure and Additional Documents. ABS’s acceptance of this agreement is conditioned upon Customer’s creditworthiness in ABS’s sole discretion. Customer also agrees to provide additional representations and authorizations, including those necessary to complete UCC financing statements, as needed to perfect ABS’s proof of ownership of the System.
20.14 Miscellaneous. ABS will not be liable for breach or default under this agreement due to delays in performance resulting from any cause beyond its reasonable control including, but not limited to, natural or man-made disasters, significant weather events or transportation delays. Customer may not assign or transfer this Agreement without ABS’s prior written consent. This agreement will be governed by the laws of the State of Oklahoma, USA without regard to its choice of law rules. This Agreement shall be construed under the laws of the State of Oklahoma, without regard to its conflicts or choice of law principles. Tulsa County, Oklahoma shall serve as the exclusive place of venue and jurisdiction for any action, which may ever arise as a result of any controversy between the parties hereto. ABS shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for all expenses it may incur in connection with any such action, including costs and reasonable attorneys’ fees, unless ABS shall not prevail in such action. The provisions of the U.N. Convention for the International Sale of Goods will not apply. Any provisions found to be unenforceable will not affect the enforceability of any other provisions of this agreement. This agreement, including all incorporated terms, constitutes the entire agreement between the parties with regard to its subject matter. No modification of this agreement will be binding unless in writing and signed by the parties. All notices under this agreement will be sufficient if given personally or by certified mail, return receipt requested, postage prepaid, to the address for the party set forth above, or to such address as such party may provide in writing from time to time.
20.15 Guarantee. In recognition of Anthem Business Solutions (“ABS”) providing a POS System as a Service System (System), I hereby personally and unconditionally guarantee the Full Value of the System, as itemized on the System Quote and Sales Contract. I acknowledge that any and all amounts paid as Monthly Payments are solely for the use of the System and the associated Support Services, and these payments shall not be off-set against the Full Value of the system.
I agree that this Personal Guarantee shall become effective upon delivery of any portion of the System and shall remain in full force and effect until such time as the complete System, in good working order, has been returned to and received by ABS at its then current office. I agree that there is lawfully binding consideration for my Personal Guarantee and I understand that ABS would not otherwise provide the System to the receiving business without my Personal Guarantee.
This Personal Guarantee shall be governed by the laws of the State of Oklahoma, and I hereby waive notice of Default, Nonpayment and I waive trial by jury and agree to have any related case tried by a Judge, Judge Pro Tempore or appointed Commissioner. I agree to pay reasonable attorney’s fees and any other costs incurred by ABS or its successor in the enforcement and collection of this Personal Guarantee.
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