Customer Agreement

TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS APPLY TO ALL GOODS AND/OR SERVICES (“PRODUCTS”) SOLD AND/OR PERFORMED BY BEPOZ AMERICA, LLC, AND ITS AFFILIATES (“COMPANY”) AND ARE INCORPORATED INTO EACH AND EVERY QUOTATION, INVOICE, ACKNOWLEDGEMENT OR OTHER DOCUMENT ISSUED BY COMPANY. BY PURCHASING PRODUCTS FROM COMPANY, CUSTOMER INDICATES THAT IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS WITHOUT MODIFICATION.

1. Offer; Acceptance; Exclusive Terms of Contract. Company’s invoice (“Invoice”), together with these Terms and Conditions (“Terms and Conditions”) and the Technical Services Agreement, as identified and described in the Invoice, constitutes Company and customer’s (“Customer”) entire agreement governing the sale of Products to Customer (“Contract”). The Contract is formed when each of the parties affix their signature to the Invoice. Any terms and conditions that purport to modify, supersede, supplement or otherwise alter these Terms and Conditions, whether contained in a Customer’s purchase order or otherwise, are not binding on Company and shall be deemed rejected and replaced by these Terms and Conditions. Notwithstanding any contrary provision in Customer’s purchase order, none of Company’s failure to object to Customer’s terms and conditions, access to Customer’s electronic systems, commencement of work, delivery of Products, or any other conduct in furtherance of Company’s supply of the Products to Customer shall constitute acceptance of Customer’s terms and conditions. Company shall not have any liability or obligation for any program, initiative, term, condition or other requirement of Customer or any direct or indirect customer of Customer unless such program, initiative, term, condition or other requirement is expressly referenced on the face of the Invoice, in these Terms and Conditions, or otherwise specifically agreed to in writing by Company. Unless otherwise expressly stated in the Invoice, the Invoice is valid for a period of thirty (30) days after it is issued by Company.
2. Third Party Services. Customers may request Products from or through Company and certain Products may be sold by Company as a distributor, dealer partner, or a third party provider (“Third Party Services”). In the case of Third Party Services, the third party provider shall be the party responsible for providing the Products to the Customer and, Customer agrees that it will look solely to the third party for any loss, claims or damages arising from, or related to, the provision of such Third Party Services. Customer hereby releases Company, from any and all claims arising from, or relating to, the purchase or provision of such Third Parties Services. Any amounts, including, but not limited to, taxes, associated with Third Party Services which may be collected by Company will be collected solely in the capacity as an independent sales agent of the provider of the Third Party Services.
3. Licensed Software. Customer acknowledges the licensed software (“Licensed Software”) relies on an authorization code system and the Licensed Software will stop functioning if Customer does not pay any amounts due to Company. Customer agrees the Technical Services Agreement shall govern the Licensed Software and the related support services. Customer shall be solely responsible for daily back-up and other protection of its data and the Licensed Software against loss, damage or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the installation of the Licensed Software.
4. Work Product Limited License. Customer’s sole rights to the work product, materials and other deliverables to be provided or created (individually or jointly) in connection with the Products, the Licensed Software, including but not limited to, all inventions, discoveries, methods, processes, formulae, ideas, concepts, techniques, know-how, data, designs, models, prototypes, works of authorship, computer programs, proprietary tools, methods of analysis and other information (whether or not capable of protection by patent, copyright, trade secret, confidentiality, or other proprietary rights) or discovered in the course of performance of the Contract that are embodied in such work or materials (“Work Product”) will be, upon payment in full, a non-transferable, non-exclusive, royalty-free license to use such Work Products solely for Customer’s internal use. Customer will have no ownership or other property rights thereto and Customer shall have no right to use any such Work Product for any other purpose whatsoever. Customer acknowledges that Company may incorporate intellectual property created by third parties into the Work Product (“Third Party Intellectual Property”). Customer agrees that its right to use the Work Product containing Third Party Intellectual Property may be subject to the rights of third parties and limited by agreements with such third parties.
5. Cooperation. Customer agrees to cooperate with Company in connection with delivery of the Products by providing (i) participation in project calls, (ii) joint preparation of a deliverables list prepared by the parties, (iii) timely responses to Company’s inquiries and requests for approvals and authorizations, (iv) access to any information or materials reasonably requested by Company which are necessary or useful as determined by Company in connection with providing the Products, including, but not limited to, physical and access to Customer’s computer systems, and (v) all Required Consents necessary for Company to provide the Products. “Required Consents” means consents or approvals required to give Company and its subcontractors the right or license to access, use and modify all data and third party products. Customer acknowledges and agrees that the Products are dependent upon the completeness and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees or subcontractors engaged or appointed by Customer who are selected by Customer to work with Company.
6. Access to Customer’s Location. Company may deliver the Products at Customer’s place of business, at Company’s own facilities as Company and Customer deem appropriate. When the Products are delivered at Customer’s premises, Company will attempt to deliver the Products within Company’s normal business hours, unless otherwise jointly agreed to by the parties. Customer will also provide Company access to Customer’s staff and any other Customer resources that Company determines are useful or necessary for Company to provide the Products. When the Products are provided on Customer’s premises, Customer agrees to maintain adequate insurance coverage to protect Company and Customer’s premises and to indemnify and hold Company, and its agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any product liability, death, personal injury or property damage or destruction occurring at such location in connection with the delivery of the Products, other than solely as a result of Company’s gross negligence or willful misconduct.
7. Prices. Unless otherwise expressly stated in the Invoice, prices for Products do not include storage, handling, packaging or transportation charges or any applicable federal, state, local or foreign duties or taxes. Company reserves the right to increase Product prices in the event of increases in its raw material, component or service costs or other costs or expenses arising after the date of the Invoice. The price for Products (or portions of Products) sold by Company that are finished products manufactured by third parties shall be Company’s price in effect at the time of shipment to Customer. No price reductions shall apply unless specifically agreed to in writing by Company and Company makes no representations or warranties of any kind regarding prices. Company shall have the right to modify prices on an annual basis for existing Contracts.
8. Adjustments. Company reserves the right to adjust the price and delivery terms of the Products in the event of, and as a condition to, any changes in the specifications, timing or other requirements for Products, the scope of any work covered by the Invoice or the volume of Products. All orders are subject to Product availability and the availability of Company personnel to deliver the Products. If Products are delivered on a time and materials basis, any estimates provided by Company are for planning purposes only.
9. Additional Charges. If the Company is required to stay overnight for Customer’s installation, reasonable meal and accommodation expenses will be invoiced to the Customer. Company shall inform and obtain Customer’s approval to proceed before it incurs any additional charges.
10. Shipping and Delivery. Orders are processed by the Company upon receipt of payment. The parties shall work together to determine the shipment date. Ground shipping is the general method of shipment. Expedited shipping may be purchased at the time of sale or prior to the shipment of the Product. Shipping cannot be intercepted nor expedited once in the possession of the carrier. Company will arrange shipping, crating and packaging. Company neither accepts responsibility for the carrier’s performance, nor accepts any responsibility for damages caused to the Product after it leaves Company’s facilities. If damage occurs in route to Customer, Company will aid with handling the damage claim with the carrier; however, Customer will be responsible for filing a damage claim with the carrier. Inspection for concealed damage will be the sole responsibility of Customer. Any damage must be reported immediately, but no less than twenty-four (24) hours after delivery to Customer. Insurance will be used on all Product shipments. If the item is shipped within South Carolina, or if you pick it up at our office appropriate sales tax will be charged. Barring any delays caused by any Force Majeure Event (defined below), the Customer, or Company vendors, after payment, Company agrees to use commercially reasonable efforts but shall not be otherwise obligated to deliver the Products within 30 days of receiving written notification of the appropriate Customer shipping address and approval to ship. If Customer provides Company with Customer’s carrier account number or selects a carrier, other than a carrier that regularly ships for Company, title to Products and risk of loss or damage during shipment pass from Company to Customer upon delivery to the carrier (F.O.B. Origin, freight collect). For all other shipments, title to Products and risk of loss or damage during shipment pass from Company to Customer upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to Licensed Software will remain with the applicable licensor, and Customer’s rights therein are contained in the license agreement between such licensor and Customer. For the avoidance of doubt, title to the Products shall remain Company’s until the Invoice is paid in full. Failure to pay the Invoice when due shall give Company the right, in addition to any other Company rights, to without liability to Company to trespass or any other action, to take possession of the Product with or without notice to the Customer. The Customer hereby irrevocably authorizes Company or its third party contractors and agents to take possession of the Products in the event any Invoice has not been paid in full.
11. Payment Terms. Unless otherwise expressly stated in the Invoice, all accounts are due and payable in U.S. currency within thirty (30) days from the date the Invoice. If any payment owed to Company is not paid when due, it shall bear interest at the lesser of 18% per annum (1.5% per month) or the maximum rate permitted by law, from the date on which it is due until it is paid. Credit and delivery of Products shall be subject to Company’s approval. In the event Customer defaults under its payment terms or Company otherwise deems itself insecure for any reason, Company may, without notice, terminate the Contract (in whole or in part), suspend deliveries of Products, including the performance of any services, require that any outstanding Invoice be immediately due and payable in full. Customer is prohibited from and shall not setoff against or recoup from or otherwise debit, chargeback or net from any invoiced amounts due or to become due from Customer or its affiliates any amounts due or to become due from Company, whether arising under the Contract or under any other agreement between the parties. Customer will pay for, and will indemnify and hold Company harmless from, any applicable sales, use, transaction, excise or similar taxes and any federal, state or local fees or charges (including, but not limited to, environmental or similar fees), imposed on, in respect of or otherwise associated with any Products. Customer must claim any exemption from such taxes, fees or charges at the time of purchase and provide Company with the necessary supporting documentation. In the event of a payment default, Customer will be responsible for all of Company’s costs of collection, including, but not limited to, court costs, filing fees and attorneys’ fees.
12. Third Party Financing/Leasing. In the case of finance of the Products by leasing or lending by third party financiers, Company and the Customer may mutually agree to cancel the Invoice for the purchase of the Products by the Customer, and Company shall enter into these Terms and Conditions and Technical Services Agreement with Customer and into a Contract with such finance company. In the event the Invoice is not mutually cancelled this Contract shall take effect as a sale to the Customer on a cash basis in accordance with the terms of the Invoice. If the Products are financed by a third party financier or lender, a local technician will deliver and install the Products. When the Products are installed and all devices are communicating, the Customer will be required to verbally confirm that the Products are working. If the Products are not approved, the technician will repackage the Products and ship it back to the Company’s offices. If the Customer still desires to purchase the Products, the Customer will be required to pre-pay for additional shipping and installation services required to complete the Contract.
13. Warranty. Customer understands that Company is not the manufacturer of the Products purchased by Customer hereunder and the only warranties offered are those of the manufacturer, not Company. In purchasing the Products, Customer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications, photographs or other illustrations representing the Products that may be provided by Company or made available on Company’s website. Customer expressly waives any claim that it may have against Company based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from Company against any such Claim made against Customer by a third party. Customer acknowledges that no employee of Company is authorized to make any representation or warranty on behalf of Company that is not set forth in the Contract. Customer’s sole and exclusive remedy and Company’s entire liability with respect to this warranty will be, at the sole option of Company, to either (a) use its reasonable commercial efforts to re-perform or cause to be re-performed any delivery of the Products not in substantial compliance with this warranty or (b) refund amounts paid by Customer related to the portion of the Products not in substantial compliance; provided, in each case, Customer notifies Company in writing within five (5) business days after delivery of the applicable Products. COMPANY MAKES NO OTHER, AND EXPRESSLY DISCLAIMS ALL OTHER, REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, DURABILITY, TITLE, ACCURACY OR NON-INFRINGEMENT) ARISING OUT OF OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY RELATING TO THIRD PARTY SERVICES, ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT, HARDWARE OR LICENSED SOFTWARE USED IN PERFORMING SERVICES AND ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE PRODUCTS. THIS DISCLAIMER AND EXCLUSION SHALL APPLY EVEN IF THE EXPRESS WARRANTY AND LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIVE OF COMPANY IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY ON BEHALF OF COMPANY THAT IS NOT IN THE CONTRACT OR IN ANY OTHER AGREEMENT BETWEEN THE PARTIES EXPRESSLY AMENDING COMPANY’S WARRANTY.
14. Returns. Company reserves the right to allow or disallow Customer returns based on the terms and conditions of the original Product manufacturer and/or distributor. Licensed Software is not returnable if the packaging has been opened and/or registered. If the Licensed Software was distributed electronically, it is not returnable if the licenses were downloaded. Unless otherwise noted, Customer may request a Product return and if approved by Company, the Product can be returned directly to Company. Customers should contact Company’s customer service department to request a return or for any additional information. Customers must notify Company of any damaged Products within fifteen (15) days of receipt. Return requests must be reported in writing upon discovery, as Company does not guarantee acceptance of returns beyond 30 days of receipt of the shipment by Customer. After 30 days from original Invoice date the Products are subject to the warranty set forth above. Approved Product returns must be received within 25 days from the date of the Invoice. To receive credit, all returned Products must arrive in perfect working condition, be returned in their complete original packaging, include all cables, manuals and other information originally found in their sealed packaging, and be in “new” condition (i.e. no dents, scratches, obvious signs of use, etc.). Once the Product is received, inspected and accepted by Company, if the Product meets all the criteria in the preceding sentence, a credit will be issued to Customer, less shipping costs and any applicable restocking fees (as set forth in the following Section). Return shipping is the sole responsibility of the Customer. Labor and services, including, but not limited to services as described in the Technical Services Agreement, menu programming, inventory import, hardware setup, gift cards, media, are not available for return. Unless covered by our 30-day or urgent care warranty, no returns or refunds will be granted on the purchase of hardware. No returns or refunds will be granted on purchases made using Visa, MasterCard, American Express, or Discover (each a “Card Brand”) credit or debit card (“Payment Card”). All payments made with a Payment Card will reflect the name of the Company on the Payment Card statement.

15. Restocking Fees. For returns approved for Products under $1,000, Customer shall be required to pay a 15% restocking fee. However, if the Customer elects to receive a credit for future purchases, the restocking fee will be reduced to 5%. An approved return or cancellation request on complete Point of Sale Systems, will be subject to the following conditions: $500 restocking fee per station and/or unit. Stations and/or units are defined as any Back Office, Main Register, and/or Other Workstation.

16. Termination. Either party may terminate the Contract for cause if the other party fails to cure a material default in the time period specified herein. Any material default must be specifically identified in a written notice of termination. After written notice, the notified party will, subject to the provision of warranties herein, have thirty (30) days to remedy its performance except that it will only have ten (10) days to remedy any payment default. Failure to remedy any material default within the applicable time period provided for herein will give cause for immediate termination, unless such default is incapable of being cured within the time period in which case the defaulting party will not be in breach (except for Customer’s payment obligations) if it used its reasonable efforts to cure the default. In the event of any termination of the Contract, Customer will pay Company for all Products delivered and expenses incurred, up to, and including, the date of termination. In such event, Customer will also pay Company for any out-of-pocket demobilization or other direct costs resulting from termination. Upon termination, all rights and obligations of the parties under the Contract will automatically terminate except for any right of action occurring prior to termination, payment obligations and obligations that expressly or by implication are intended to survive termination (including, but not limited to, limitation of liability, indemnity, confidentiality, and warranty).

17. Export Sales. If this transaction involves an export of Products (including, but not limited to, commodities, Licensed Software or technology) subject to the Export Administration Regulations, such items were exported from the United States by Company in accordance with the Export Administration Regulations. Customer agrees that it will not divert, use, export or re-export such items contrary to United States law. Customer expressly acknowledges and agrees that it will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government. The list of such countries subject to United States economic sanctions or embargoes may change from time to time and Customer is required to review prior to exporting any Products. Customer also expressly acknowledges and agrees that it will not export, re-export, or provide such items to entities and persons that are ineligible under United States law to receive such Products, including but not limited to, any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or on the United States Commerce Department’s Denied Persons List, Entity List, or Unverified List. In addition, manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.

18. LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF OR RESULTING FROM ANY CONTRACT, INCLUDING, WITHOUT LIMITATION, FOR THE MANUFACTURE, DELIVERY, SALE, REPAIR, REPLACEMENT, INSTALLATION OR USE OF ANY PRODUCT, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS THAT ARE ALLEGED TO BE DEFECTIVE OR NONCONFORMING OR THE CAUSE OF ANY LOSS OR DAMAGE, WHETHER FOUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF ANTICIPATED PROFITS, LOSS OF USE, LOSS OF REVENUE AND COST OF CAPITAL) ARISING OUT OF OR RELATING TO ANY CONTRACT OR ANY PRODUCTS. ANY CLAIM BY CUSTOMER AGAINST COMPANY ARISING OUT OF OR RELATING TO ANY CONTRACT OR ANY PRODUCTS CANNOT BE FILED, MADE OR MAINTAINED, AND SHALL BE DEEMED WAIVED, UNLESS FILED WITHIN TWELVE (12) MONTHS AFTER COMPANY HAS SHIPPED OR PROVIDED THE PRODUCTS IN QUESTION. THE LIMITATIONS ON COMPANY’S LIABILITY UNDER THIS SECTION SHALL NOT BE DEEMED TO ALTER OR EXPAND THE EXCLUSIVITY OF ANY REMEDY OTHERWISE PROVIDED FOR UNDER THE CONTRACT. COMPANY AND ITS SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE PRODUCTS.

19. Confidentiality. Customer shall maintain the confidentiality of all information of Company that is not generally known to the public, including but not limited to the Contract, the Products, technical, business or financial information of Company (“Confidential Information”) in the same manner in which it protects its own confidential information of like kind, but in no event shall Customer take less than reasonable precautions to prevent the unauthorized disclosure, publication, dissemination or use of the Confidential Information. Upon expiration or termination of the Contract, Customer shall return the Confidential Information and shall not use the Confidential Information for its own, or any third party’s benefit.

20. Compliance with Applicable Laws and Industry Regulations. Company represents and warrants that it will at all times during the term of the Contract comply with applicable state and federal laws and regulations and industry regulations, including but not limited to the Card Brand rules and the PCI Security Standards Council, LLC’s Payment Card Industry Data Security Standards.

21. Employee Non-Solicitation. Both the Customer and Company agree that while the Contract is in force and for a period of twenty-four (24) months thereafter, neither party shall directly or indirectly solicit or offer employment to any of the other party’s officers, employees, third party contractors and associates who have been involved in or introduced to the other party without the other’s prior written consent.

22. Excusable Delay. Company shall not be liable for any delay or failure to perform if such delay or failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, actions by any governmental or public authority, war, sabotage, terrorism, riots or other public disturbances, fires, floods, windstorms, explosions, natural disasters, power failures, epidemics, pandemics, disease outbreaks or the worsening thereof, labor disputes of any kind, failure of Customer to provide required information, or the change in cost or availability of raw materials, components, labor, transportation, logistics, energy or services based on market conditions, supplier actions or contract disputes (each a “Force Majeure Event”). During any such Force Majeure Event, Company’s obligations under the Contract shall be suspended and Company shall not have any obligation to provide Customer with Products from other sources or to pay or reimburse Customer for any additional costs to Customer of obtaining substitute Products. Company may, during any period of shortage due to any of the above circumstances allocate its available supply of Products among itself and its customers in any manner that Company deems fair and reasonable in its sole discretion.

23. Assignment. The Contract may be assigned in whole or in part by either party upon thirty (30) days prior written notice to the other party.
24. Waiver. Waiver by either party of any of the terms or conditions of the Contract shall be effective only if in writing and signed by such party, and shall not constitute a waiver of such terms as to any subsequent events or conditions, whether similar or dissimilar. No course of dealing or custom in the trade shall constitute a modification or waiver by either party of any right.
25. Partial Invalidity. If any term or provision of the Contract, or their application to any situation or circumstance, shall be invalid or unenforceable, the remainder of the Contract or the application of such term or provision to situations or circumstances other than those as to which it is invalid or unenforceable, shall not be affected. Each term or provision of the Contract shall be valid and enforceable to the fullest extent permitted by applicable law.
26. Governing Law; Jurisdiction; Venue. These Terms and Conditions shall be governed by and construed under the laws of the State of South Carolina, without regard to conflicts of law rules. The parties agree to submit any dispute arising between the parties for any reason, to the exclusive jurisdiction of the York County Superior or District courts located in York County, South Carolina. The Customer specifically waives any and all objections to venue in such courts. The parties specifically waive the right to a jury trial in connection with any dispute arising out of this Agreement, or between the parties for any reason.