|
<br />In the event of Option 2 above, you and we agree that the terms and
<br />conditions set forth in Sections 17(b), 31, 33, 35-37, and 42 of this
<br />Agreement will not apply."
<br />
<br />5. The following will be added as Section 31: "Purchased
<br />Equipment; Supplies. We will sell to you, and you will buy from us the
<br />Equipment identified in the Application as being purchased by you (the
<br />"Purchased Equipment''), free and clear of all liens and encumbrances
<br />(subject to Section 36), except that any "Software" (as defined in Section
<br />37 below) will not be sold to you outright but instead will be provided to
<br />you pursuant to, and subject to the conditions of Section 37 hereof. We
<br />will also sell to you and you will buy from us the supplies identified in the
<br />Application as requested by you from time to time."
<br />
<br />6. The following will be added as Section 32: "Site Preparation.
<br />You will prepare the installation site or sites for the Equipment, including
<br />but not limited to the power supply circuits and phone lines, in
<br />conformance with the manufacturer's and our specifications and will make
<br />the site or sites available to us by the confirmed shipping date,"
<br />
<br />7. The following will be added as Section 33: "Payment of Amounts
<br />Due for Equipment.
<br />
<br />a, The purchase price specified in the Application for purchased
<br />equipment and supplies, if applicable, will be due and payable
<br />upon exeeution of this Agreement. You will pay such purchase
<br />price to us prior to shipping of the equipment and supplies. All such
<br />payments will be made: (I) in a lump sum by check or by debit to the
<br />Settlement Account through ACH or (2) in installments by debit to
<br />the Settlement Account through ACH (defined below) in each case,
<br />as specified on the Application, In the event you do not specify
<br />payment timing or method, payment will be made in a lump sum via
<br />ACH debit to the Settlement Account. We will also provide you the
<br />supplies identified in the Application, as requested by you from time
<br />to time. You will pay the purchase price for such supplies, including
<br />all applicable taxes prior to delivery of the supplies or at our option
<br />such amounts will be collected by invoice or by debits or deductions
<br />pursuant to this Section. You hereby authorize us to collect all
<br />amounts due from you under this Agreement by initiating our debit
<br />entries for such amounts to your account designated pursuant to the
<br />Card Processing Agreement to be debited and credited for amounts
<br />due from and to you under the Card Processing Agreement (the
<br />"Settlement Account") or by deducting (or causing Bank of America,
<br />N,A. to deduct) such amounts from settlement amounts due to you
<br />under the Card Processing Agreement. All Authorizations and other
<br />provisions in your Card Processing Agreement regarding the debiting
<br />and crediting of your Settlement Account apply with equal force with
<br />respect to amounts due to or from you under this Agreement. This
<br />authority will remain in full force and effect until we have given
<br />written notice to your bank where your Settlement Account is
<br />maintained that all monies due from you under this Agreement have
<br />been paid in full.
<br />
<br />If you will make any payment hereunder by check and such check
<br />will be returned for non-sufficient funds, or if you will make any
<br />payment hereunder by debit to the Settlement Account and funds in
<br />the Settlement Account are inadequate, you agree to reimburse us
<br />immediately for any account shortfall that occurs as a result thereof
<br />together with our then current fee for handling such shortfall. Should
<br />you fail to deposit sufficient funds to cover the shortfall in toto within
<br />forty eight (48) hours of notice of such shortfall, you will then owe to
<br />and be charged by us a late charge of 15% of the amount past due.
<br />Any deposits made to the Settlement Account will be applied first to
<br />late charges, then to processing charges and then to Equipment
<br />charges.
<br />
<br />b. In addition, you will pay, or reimburse us for, amounts equal to
<br />any applicable taxes or assessments, however designated, levied or
<br />based on such charges, or on this Agreement or the Equipment and
<br />related supplies or any services, use or activities hereunder.
<br />
<br />c. As indicated in the Application, sepamte charges apply for
<br />Equipment supplies."
<br />
<br />8. The following will be added as Section 34: "Use of Equipment.
<br />
<br />a, You will cause the Equipment to be operated by competent and
<br />qualified personnel in accordance with any openlting instructions
<br />furnished by the manufacturer or us and in connection with the
<br />services provided under your Card Processing Agreement. You will
<br />not use the Equipment, or permit the Equipment to be used, in any
<br />manner or for any purpose for which the Equipment is not designed
<br />or reasonably suited.
<br />
<br />b. You will comply with all governmental laws, rules and
<br />regulations relating to the use of the Equipment. You are also
<br />
<br />HAMS MSA (8-2-05)
<br />
<br />Page 18 of 19
<br />
<br />responsible for obtaining all legally required permits for the
<br />Equipment.
<br />
<br />c. After delivery of the equipment any loss, destruction, theft of or
<br />damage to the Equipment that occurs thereafter will not relieve you
<br />from your obligation to pay the full purchase price payable
<br />hereunder. 1
<br />
<br />d. You will not move the Equipment from the installation location
<br />set forth in the Application for any reason or use whatsoever without
<br />our prior written consen t.
<br />
<br />e. Notwithstanding anything in this Agreement to the contrary, you
<br />will be solely responsible for properly maintaining all Equipment and
<br />meeting all technical standards required by this Agreement. You will
<br />at all times insure that all point-of-sale Equipment will display, print
<br />and report your name, city, state and the transaction date on all
<br />transaction receipts, as penalties may be assessed against you for
<br />transactions that are inaccurately lnmscribed."
<br />
<br />9. The following will be added as Section 35: "Ownenhip &
<br />Protection of Equipment. During the period of time when any charges,
<br />taxes or fees for or on Equipment will be due us, and until such time as all
<br />charges, taxes and fees due will have been received by us, it is expressly
<br />understood and agreed by you that: (I) you will not directly or indirectly
<br />create or permit to exist, and will promptly and at your own expense
<br />discharge, any lien, charge or encumbrance on the Equipment; (2) you will
<br />not alter the Equipment in any manner whatsoever; (3) you will maintain
<br />the Equipment at your expense in the same condition in which it was
<br />delivered to you, ordinary wear and tear excepted; and (4) in the event of
<br />any loss, theft, damage or destruction of the Equipment from any cause
<br />whatsoever, you will notify us immediately of such condition and we, in
<br />our sole discretion, will determine the extent of loss and the cost of repair
<br />and/or replacement, and you will bear the entire risk and promptly pay the
<br />cost of such repair and/or replacement."
<br />
<br />10. The following will be added as Section 36: "Security Interest;
<br />Financing Statements. You hereby grant to us a security interest in all
<br />Purchased Equipment and the related Software to secure payment of the
<br />purchase price thereof in accordance with the Uniform Commercial
<br />Code."
<br />
<br />II. The following will be added as Section 37: "Software License.
<br />Anything in this Agreement to the contrary notwithstanding, we retain all
<br />ownership and copyright interest in and to all software, computer I
<br />programs, related documentation, technology, know how and processes
<br />embodied in or provided in connection with the Equipment (collectively, . ·
<br />"Software"), and you will have only a nonexclusive license to use the
<br />Software in the operation of the Equipment. You will not reverse
<br />engineer, disassemble or decompile the Software. You will not give any
<br />third party access to the Software without our prior written consent. Your
<br />obligations under this Section will survive the termination of this
<br />Agreement."
<br />
<br />12, The following will be added as Section 38: "Limited Warranty
<br />for Equipment; Maintenance. Equipment provided to you by us
<br />hereunder will be free from defects in material or workmanship at the
<br />initial date of shipment to you and, if covered by any applicable wammty,
<br />will be repaired or replaced by us free of charge within thirty (30) days
<br />therefrom. We will take appropriate steps, to the extent permitted, to
<br />assign to you any and all warranties provided by the manufacturer of the
<br />Purchased Equipment, but we will not provide any warranty with respect
<br />to the Purchased Equipment.
<br />
<br />Equipment provided to you by us hereunder will conform to applicable
<br />specifications for the period of time specified in, and be covered by the
<br />warranty provided in, the written materials accompanying each component
<br />of Equipment, copies of which materials will be provided to you upon
<br />delivery of the specified Equipment. The exact term, conditions and
<br />coverage of each wammty will vary for each component of Equipment in
<br />accordance with such written materials, The cost incurred by you, if any,
<br />to repair or replace Equipment will be determined by us based upon the
<br />specific provisions of the warranty applicable thereto as set forth in such
<br />written materials, our applicable repair and replacement policy and the
<br />date you request such repair or replacement relative to the initial date of
<br />shipment by us,
<br />
<br />The warranty statement in the written materials provided to you with
<br />respect to the Equipment describes the following in explicit detail, but in
<br />general, such warranty will be voided if there is: (l) altenltion, installation,
<br />repair or maintenance of the Equipment performed by persons not
<br />authorized by us; (2) connection ofany device to Equipment or peripherals
<br />not certified for use with the Equipment; (3) openltion of the Equipment I
<br />outside the published specifications; (4) negligence by you or any other '.
<br />person with respect to the Equipment; or (5) altenltion of Equipment serial
<br />number{s).
<br />
|