THIS EQUIPMENT AGREEMENT (the “Agreement”), is entered into by and between National Retail Solutions, Inc., a Delaware limited liability company with its principal offices at 520 Broad Street, Newark, New Jersey (“NRS”), and (“Retailer“). NRS and Company are individually referred to herein as “Party” and collectively referred to in this Agreement as the “Parties.”
WHEREAS, NRS wishes to facilitate the sale of its products and services via its proprietary Elmer 1000 (the “System”) by providing retailers utilizing the System with compatible equipment including POS unit, cash drawer scanner and printer (collectively, the “Equipment”); and
WHEREAS, NRS further wishes to provide, any or all of the following, in NRS’s sole discretion, cash register services, advertising as set forth in section 1.3, beacons, loyalty program, Retailer app and merchant and Boss portal (collectively, the “Merchant Services”) and certain credit card processing services, pursuant to the herein terms and such other terms as NRS may impose from time to time; and WHEREAS, Retailer wishes to install the Equipment to utilize the System at the retailer location (“Retailer Location”) pursuant to the herein terms;
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Ownership of Equipment. At all times, until the Equipment is paid for in full, NRS shall retain full ownership of the Equipment irrespective of where the Equipment is installed or located. Retailer shall refrain from any action that would diminish NRS’s ownership interest in the Equipment. NRS reserves the right to remove the Equipment or otherwise reclaim possession of the Equipment at any time upon two (2) days’ notice in the event Retailer fails to make any payment for the Equipment or Services when due.
1.2 Treatment of Equipment. Retailer agrees that it shall not deactivate, uninstall, or remove the Equipment, install any equipment, software, or any processor, credit card or otherwise, not approved by NRS in writing, nor shall it otherwise disable, damage, misuse or cause the Equipment not to function as intended by NRS.
1.3 Advertising Revenues. NRS shall retain one-hundred percent (100%) of all revenues derived from the placement or display of third party advertising and promotional content on or via the Equipment regardless of the form of advertising except that Retailer shall retain 100% of all advertising revenues from advertisements from third parties that Retailer arranges to advertise via the Equipment subject to a service fee to NRS of $25.00 per advertisement on a monthly basis and a one- time set up fee of $50.00 per advertisement (Artwork Must Be Provided By Retailer In The Proper Format). NRS shall preapprove all such ads in its sole discretion. Under no circumstance shall the allotted time for Retailer-generated advertisements exceed 10% of Equipment daily run-time. NRS reserves the right to revise the terms of this Section 1.3 in its sole and absolute discretion.
1.4 Advertising Compliance. All screens shall be clearly visible to customer and unobstructed at all times.
2.1 Fees. NRS shall provide the Merchant Services pursuant to the fees and payment terms provided for in a separate agreement from NRS or an NRS affiliate, or schedule to this Agreement, which NRS or such affiliate may revise from time to time in its sole discretion upon notice.
2.2 Credit Card Processing. The provision of credit card processing services shall be for all sales transactions conducted at the Retailer Location including those that do not occur via the System.
2.3 Retailer and Customer Information. All Retailer and customer, sales and other information received, collected or derived from NRS’s provision of Merchant Services or otherwise shall be the property of NRS. NRS shall have the right to utilize such information for any and all lawful purposes. NRS may engage third parties, including software licensors, in connection with the Merchant Services and its other obligations under this Agreement. Retailer expressly authorizes such third parties to gather, store, and track such information and to provide such information to NRS. Retailer agrees that such third parties shall not be liable, and Retailer hereby releases such third parties, for the actions or omissions of NRS.
3.1 Indemnification. Retailer agrees to hold NRS, its parent entities, subsidiaries and affiliates and their respective officers, directors and employees (collectively, the “Indemnified Parties”) harmless from any claims, demands, liabilities, losses, damages, judgments or expenses (including reasonable attorneys’ fees and expenses) which result from or arise in connection with (a) Retailer’s breach of this Agreement, including any terms and conditions communicated by NRS to Retailer or (b) any damage to the Equipment caused by Retailer, its employees or agents.
3.2 Limitation of Liability. NRS is not liable to Retailer or to any third party for any costs, liabilities or damages arising either directly or indirectly from any cause, action or claim relating to the Equipment and/or the products or services or content on the Equipment, including without limitation any personal injury, actual, incidental, consequential, exemplary, punitive, reliance or special damages, or for any claims for loss of revenue, tax liabilities, lost profits, lost use, data, or goodwill or for lost business opportunities of any kind or nature whatsoever. These limitations apply even if the damages were foreseeable or NRS was told that they were possible, and these limitations apply no matter what legal theory the claim is based upon. NRS is not liable for any Equipment or service failures, or the inability to use the Equipment, outages or interruptions or equipment or service failures or acts or omissions of third parties. NRS will not be liable for any damages if Retailer’s or a customer’s access to the Equipment is interrupted, or if there is a problem with the interconnection or equipment of some other party. This section will survive the expiration or termination of the Agreement. Notwithstanding anything in this Agreement to the contrary and should any provision in this Agreement limiting NRS’s liability not be enforced, NRS’s total liability to Retailer shall not exceed in the aggregate $250.00 in all cases. For the purposes of this paragraph, “NRS” includes our parent companies, subsidiary companies and affiliated entities, and all their directors, officers, agents, licensors and employees.
NRS does not make any warranties, claims or representations, whether express, implied or statutory, regarding the Equipment or the products and services offered through the Equipment, including without limitation, warranties or conditions of quality, performance, suitability, durability, title, non- infringement, merchantability, or completeness of fitness for use for a particular purpose. All such warranties are hereby expressly excluded and disclaimed. NRS DISCLAIMS ALL LIABILITY FOR TECHNICAL INACCURACIES, TYPOGRAPHICAL ERRORS, OR OTHER ERRORS OR OMISSIONS CONTAINED WITHIN OR ON THE EQUIPMENT. NRS DOES NOT WARRANT THAT THE EQUIPMENT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, NOR THAT THE ACCESS TO THE EQUIPMENT WILL BE UNINTERRUPTED OR ERROR-FREE, AND NRS ASSUMES NO RESPONSIBILITY FOR ANY AND ALL DAMAGE CAUSED THEREBY.
The parties agree to keep the terms of this Agreement confidential, except as required by applicable law. Retailer acknowledges that the Equipment and its operating software may retain certain proprietary and personal information of the customers (“Customer Information”). Retailer and its employees and agents are responsible for safeguarding the Equipment and the Customer Information in a manner consistent with any and all applicable state and federal laws governing the personal information of a customer, including any obligations imposed under any applicable state or federal privacy laws and any rules promulgated by an agency having jurisdiction over the Retailer’s activities. Retailer shall comply with any and all corporate policies of NRS related to the safeguarding of Customer Information. In no circumstance shall Retailer access or facilitate access to the Customer Information through the Equipment except as expressly authorized by NRS in writing. Retailer shall not use Customer Information in any manner not related to the products and services sold through the Equipment. In the event that Retailer becomes aware of any unauthorized access to the Equipment or Customer Information, Retailer shall immediately report this access to NRS and comply with any and all state and federal laws regarding notification to a Customer regarding such unauthorized access.
6.1 Exclusivity and Term. Retailer acknowledges that NRS has invested substantial resources to develop the Merchant Services and platform utilized by the Equipment. NRS has also provided the Equipment at a discounted cost to Retailer. Retailer shall use the NRS Equipment on an exclusive basis for a minimum of four years (4) after receipt of the Equipment and shall not use any equipment that performs approximately the same or similar functions as the Equipment during such four (4) year period (the initial and all subsequent 4 year periods shall be referred to as the ‘Term’). The Term shall be renewed for an additional four (4) year period unless Retailer sends NRS a notice of non- renewal within 90 days and not greater than 60 days of expiration of the then current term. NRS shall be Retailer’s exclusive provider of Merchant Services and the types of products and services purchased or used via the Equipment during the Term. In the event Retailer violates any provision of this section or section 1.2, ceases to use the NRS or Merchant Services and related NRS products and services as set forth in Exhibit A, or terminates this Agreement, Retailer shall pay NRS the amount of $1,000 per Retailer unit as agreed upon liquidated damages. NRS may terminate any services and/or software provided pursuant to this Agreement in the event Retailer fails to make any payment under this Agreement, and such default is not cured within three (3) days of receiving notice. NRS may immediately terminate any services and licenses in the event of actual of suspected fraud relating to any Retailer activities including but not limited to coupon redemptions or a violation of Section 1.2.
6.2 No waiver of rights. Failure of either party at any time to require the other party’s performance of any obligation under this Agreement shall not affect the right to require performance of this obligation. Any waiver by either party of any breach of any provision hereof shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver of modification of any right under this Agreement
6.3 Disputes. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any conflict of law principles thereof which might require the application of the law of another jurisdiction. Exclusive jurisdiction for resolution of any dispute, controversy or claim arising out of, in connection with, or in relation to this Agreement, or the breach thereof, shall be only in the state of Delaware, conducted under the authority of the American Arbitration Association and conducted by 1 arbitrator. Arbitration shall proceed solely on an individual basis without the right for any disputes or claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator's authority to resolve and make written awards is limited to disputes and claims between you and us alone. Claims and disputes may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Both Parties consent to said jurisdiction and venue and waive any and all personal jurisdiction objections with respect thereto.
6.4 Severability. In the event any portion of this Agreement may be determined by any governmental body having jurisdiction hereover, or by any court of competent jurisdiction, to be unenforceable, the balance of the Agreement shall be severed therefrom and shall remain in full force and effect unless a failure of consideration would thereby result.
6.5 Assignment. Retailer may not assign its rights, obligations or liabilities under this Agreement without the prior written consent of NRS. In the event NRS consents to such assignment, or if Retailer is under new ownership, such assignment or new owneship shall be subject to $600 transfer fee per unit. NRS may assign its rights under this Agreement.
6.6 No Agency/Independent Contractor Status; Third Party Beneficiaries. This Agreement does not create an employeremployee relationship between Company and NRS. Nothing in the Agreement will be construed to create, authorize or constitute a partnership, joint venture or agency relationship of any kind. Neither party shall have the authority to bind the other to any obligation or liability except as provided in this Agreement. NRS’s licensors shall be third party beneficiaries of this Agreement.
6.7 Amendment. This Agreement may be amended or modified by NRS upon transmission by NRS of a signed new agreement via fax or certified mail to Retailer which shall take effect immediately upon receipt by Retailer without the need for mutual execution.
6.8 Headings/Counterparts. The headings of the items and paragraphs contained in this Agreement are for convenience of reference only and do not form a part hereof and in no way modify the meaning of such items and paragraphs. Any number of counterparts of this Agreement may be signed and delivered and each shall be considered an original and together they shall constitute one agreement.
6.9 Conflicts between Agreements. In the event of a conflict between the provisions of this Agreement and any other agreement to which NRS and Company are parties with respect to NRS’s marketing and or other services or sales, this Agreement shall control.
6.10 Background Checks. Retailer hereby authorizes NRS to make periodic investigative background inquiries concerning it and its principals, including investigating business/personal credit, financial, prior employment and criminal history records and to make inquiries from any and all credit/trade/personal/ business sources (including banks, credit card companies, credit reporting agencies, business associates, governmental authorities and any other source who may have knowledge regarding Retailer in connection with this Agreement. As part of such investigation, Retailer authorizes NRS to request and obtain business/personal credit reports on Retailer and Retailer understands that under NRS procedure, NRS may terminate any agreement or arrangement with Retailer if the results of any background check are not satisfactory to NRS in its sole discretion. Retailer hereby authorizes all corporations, companies, credit agencies, educational and military institutions, persons, law enforcement agencies, criminal, civil and federal courts, and governmental agencies to release and forward to NRS any and all information, references and records sought in connection with any request by NRS for a reference and further authorize NRS to share the information received from any source with NRS’s parent entities and affiliates. Retailer and Retailer’s principal(s), hereby release NRS and its agents, parents, subsidiaries and affiliates from any and all liabilities, claims or suits regarding the investigations, inquiries, reports and information obtained from any and all sources.
6.11 Entire Agreement. This Agreement sets forth the entire understanding and supersedes prior agreements between the parties relating to the subject matter contained herein and merges all prior discussions between them, and neither party shall be bound by any definition, condition, provision, representation, warranty, covenant or promise other than as expressly stated in this Agreement or as it contemporaneously or subsequently set forth in writing and executed by a duly authorized officer or representative of the party to be bound thereby.
7.1 Terms of POS Return Policy. The point of sale system may be returned between 61 and 90 days of installation, such return shall be subject to a 30% restocking fee based on the purchase price of the point of sale system. For example, if the Retailer paid $1299, the amount refunded to the Retailer will be $910 ($389 restocking fee). If the Retailer paid $499 for the initial down payment, they will be refunded $110 ($389 restocking fee). IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the day and year first above written.
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