(new) Terms and Conditions - Queso Cash - Final


PHOTOBOOTH SUPPLY CO. SALE OF GOODS AGREEMENT

This Sale of Goods Agreement (this "Agreement") is entered into by and between Photobooth Supply Co. ("Seller") and the customer ("Buyer"), collectively (the “Parties”), as stated in the attached Invoice, with the effective date being the date of the Invoice, which is incorporated herein by reference. Whereas, Seller is in the business of selling photo kiosks (the "Goods"), and, Buyer desires to purchase the Goods from Seller. Now, for acknowledged good and valuable consideration, the Seller and Buyer agree as follows:

SECTION 1


AGREEMENT TO PURCHASE AND SELL GOODS

Section 1.01 Purchase and Sale. Subject to the terms and conditions of this Agreement, the Seller shall, on a non-exclusive basis, sell to Buyer, and Buyer shall, on a non-exclusive basis, purchase from Seller, the Goods.

Section 1.02 Payment. Payment for the Goods may be made via cash, credit, check, or bank transfer.

SECTION 2


SHIPMENT AND DELIVERY

Section 2.01 Shipment. Unless expressly agreed to by the Parties in writing, Seller shall select the method of shipment of, and the carrier for, the Goods.

Section 2.02 Delivery. Unless expressly agreed to by the Parties, Seller shall ship the Goods via a common carrier of Seller’s choice to the Buyer’s address as provided in the Invoice.

Section 2.03 Late Delivery. Any time quoted by Seller for delivery is an estimate only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. No delay in the shipment or delivery of the Goods relieves Buyer of its obligations under this Agreement.

Section 2.04 No Right of Return. Once Goods are shipped, it is deemed accepted and Buyer has no right to return Goods.

Section 2.05 Export and Re-Export Restrictions and Regulations. Buyer agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Buyer’s use of Photobooth Supply Co. products and services. Buyer agrees to not violate any local, state, federal or foreign laws. Buyer agrees not to transfer or authorize the transfer of any materials to a prohibited country in violation of any laws. In particular, but without limitation, the materials may not, in violation of any laws, be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders or U.S. Department of Commerce Entity List of proliferation concern, or the U.S. State Department Debarred Parties List. By using any materials subject to any such restrictions and regulations, Buyer represents and warrants that Buyer is not located in, under the control of, or a national or resident of any such country or on any such list.

SECTION 3


TITLE AND RISK OF LOSS

Section 3.01 Title. Title to Goods are transferred to Buyer once Goods are shipped and Buyer has paid the Invoice in full.

Section 3.02 Risk of Loss. Risk of loss to all Goods ordered under any purchase order passes to Buyer upon Seller's tender of Goods to a commercial carrier.

SECTION 4


INSPECTION PERIOD

Section 4.01 Inspection. Buyer shall inspect the Goods with ten (10) days of receipt ("Inspection Period") of the Goods and either accept or, if such Goods are Defective Goods, shall notify Seller within the Inspection Period. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Defective Goods during the Inspection Period. If Buyer timely notifies Seller of any Defective Goods, Seller shall determine, in its sole discretion, whether the Goods are Defective Goods. If Seller determines that the Goods are Defective Goods, Seller will replace the Defective Goods with Conforming Goods at Seller’s expense.

SECTION 5


PRODUCT WARRANTIES

Section 5.01 Limited Warranty. Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods (the "Warranty Period"), that such Goods will materially conform to the specifications set forth in Seller's published specifications in effect as of the date of the tender of Goods to a commercial carrier and will be free from significant defects in material and workmanship. The Goods covered under the Warranty Period are referred to as the Covered Product.

Section 5.02 AGREEMENT HOLDERS RESPONSIBILITIES To keep this Agreement valid throughout the Warranty Period, You must comply with the following requirements:

  1. Retain any proof of purchases and any receipts for maintenance services, repairs, Seller updates and/or modifications. You may be required to furnish these documents in the event of a claim. 
  2. Operate and maintain the equipment in accordance with the recommendations and instructions in the assembly videos, instruction manuals, help desk, and Seller’s support team responses. These guidelines are essential to ensure the proper operation of the Covered Product.

Section 5.03 Buyer's Exclusive Remedy for Defective Goods. Notwithstanding any other provision of this Agreement, this contains Buyer's exclusive remedy for Defective Goods. Buyer's remedy is conditioned upon Buyer's compliance with its obligations stated below during the Warranty Period, with respect to any allegedly Defective Goods:

Section 5.04 Filing a Claim.

  1. E-mail support@photobooth.com or call the Seller’s customer service toll-free number at (949-444-2752 Ext. 200) during normal business hours for the appropriate authorized technician. All repairs must be authorized by the Supplier prior to performance of work. Claims on unauthorized repairs may be denied. 
  2. Buyer shall notify Seller, in writing, of any alleged claim or defect and request a Return Merchandise Authorization (“RMA”) from Seller. If shipment of Defective Goods is necessary, the Defective Goods must be shipped to Seller within ten (10) days after the RMA was issued at Buyer’s expense. The Buyer will pay for shipping the product to the Seller and shipping the replacement product back to the Buyer. The Buyer may elect to purchase insurance on the shipment. The Buyer is not liable for any loss or damage occurring during shipment or as the result of poor packaging. The Buyer is responsible for providing the Seller a tracking number via a reputable carrier. 
  3. The Seller will repair, or if unable to be repaired, at Seller’s discretion, replace the Covered Product when the Covered Product fails to perform as intended due to a covered mechanical or electrical breakdown during normal usage. Parts will be replaced with those of like kind and quality, and may be new or remanufactured. If the Covered Product cannot be repaired, if the cost of the repair exceeds the original purchase price or if parts are no longer available due to the age of the Covered Product or are discontinued by the Seller, the Covered Product will be replaced with a product of equal or similar features and functionality.

Section 5.05 Warranty Limitations.

  1. The warranties under this Section do not apply where the Goods have: been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller; 
  2. been reconstructed, repaired or altered by persons other than Seller or its authorized representative; 
  3. been used with any third-party product, software, hardware or product that has not been previously approved in writing by Seller; 
  4. minor cosmetic imperfections that do not impair the functionality that may be caused by powder coating process; 
  5. normal wear and tear on the Goods, including paint chipping and denting; 
  6. damage or failure due to accident, abuse, corrosion, discoloration of paint or plastic, neglect, theft, vandalism, fire, flood, wind, lightning, freezing or other natural disasters of any kind, power reduction, power fluctuation or power failure from whatever cause, unusual atmospheric conditions, collision, introduction of foreign objects into the covered unit, or modifications that are unauthorized or not recommended by Seller; 
  7. been damaged while moving the product to another location, and 
  8. experienced abnormal electric current.

Section 5.06 Third-Party Products. Products manufactured by a third party ("Third Party Product") may contain, be contained in, incorporated into, attached to or packaged together with the Goods. Buyer must first Third Party Products are not covered by the warranty in Section 5.01. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third Party Product.

Section 5.07 Defect Discovered Outside Warranty Period. Seller does not guarantee the replacement of any defect discovered outside the Warranty Period. Any request to cure defect outside of the Warranty Period is subject to the availability of the replacement part, and Buyer shall be responsible for the entire costs of replacement parts, shipping costs, and labor fees.

Section 5.08 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Section 5.01, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, AND (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF. THIS SETS FORTH THE BUYER'S SOLE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.

Section 5.09 Extended Warranty Plan. The Extended Warranty Plan extends the Limited Warranty to the length of the subscription and is only available through an additional purchase or through the subscription program. If you are unsure if you qualify please contact our team.

SECTION 6


INTELLECTUAL PROPERTY

Section 6.01 Ownership. Buyer acknowledges and agrees that:

  1. any and all Seller's intellectual property, such as patents, copyrights, and trademarks, whether registered or not, ("Seller’s intellectual property rights") are the sole and exclusive property of Seller or its licensors; 
  2. Buyer shall not acquire any ownership interest in any of Seller's intellectual property rights under this Agreement; 
  3. Buyer shall use Seller's intellectual property solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller.

Section 6.02 Prohibited Acts. Buyer shall not:

  1. take any action that might interfere with any of Seller's intellectual property rights in or to Seller's intellectual property rights, including Seller's ownership or exercise thereof; 
  2. challenge any right, title or interest of Seller in or to Seller's intellectual property rights; 
  3. register or apply for registrations, anywhere in the world, for Seller's Trademarks or any other Trademark that is similar to Seller's Trademarks or that incorporates Seller's Trademarks in whole or in confusingly similar part; 
  4. use any mark, anywhere that is confusingly similar to Seller's Trademarks in whole or in confusingly similar part; 
  5. engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller's Trademarks; 
  6. misappropriate any of Seller's Trademarks for use as a domain name without prior written consent from Seller; or 
  7. alter, obscure or remove any Seller's Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Seller may provide.

SECTION 7


CONFIDENTIALITY

Section 7.01 Scope of Confidential Information. Any and all confidential information and materials comprising or relating to Seller’s intellectual property rights, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information").

Section 7.02 Protection of Confidential Information. Buyer shall:

  1. protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as Buyer would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, and 
  2. not use the Seller’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement.

SECTION 8


LIMITATION OF LIABILITY

Section 8.01 No Liability for Consequential or Indirect Damages. Except for liability arising out of the Indemnification Agreement, incorporated herein, Seller nor its representatives is liable for consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost data or any other mechanical breakdown due to a computer or software virus, lost profits or revenues or diminution in value, arising out of or relating to any breach of this agreement, whether or not the possibility of such damages has been disclosed in advance by buyer or could have been reasonably foreseen by seller, regardless of the legal or equitable theory (Contract, Tort, or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

Section 8.02 Maximum Liability. Seller’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, shall not exceed the greater amount of (1) the total amount paid and amounts accrued but not yet paid to seller pursuant to this agreement; or (2) the total amount of liability which is actually covered by Seller’s applicable insurance policy (ies).

Section 8.03 ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.

SECTION 9


MISCELLANEOUS

Section 9.01 Governing Law, Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of the state in which the Seller’s principal place of business is located. Any action or proceeding by either of the Parties to enforce this Agreement shall be brought in the state in which the Seller’s principal place of business is located.

Section 9.02 Entire Agreement. Unless specifically provided herein, this Agreement contains all of the understandings and representations between the Buyer and the Seller pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

Section 9.03 Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Buyer and by the Seller. No waiver by either of the Parties of any breach by the other Party hereto of any condition or provision of this Agreement to be performed by the other Party hereto shall be deemed a waiver.

Section 9.04 Severability. Should any provision of this Agreement shall be held as unenforceable, such holding shall not affect the validity of the remainder of this Agreement.

Section 9.05 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

Section 9.06 Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected Party's reasonable control.

Section 9.07 Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Buyer is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.

Section 9.08 Transferability. This Agreement is not transferable and provides coverage solely to the original purchaser of the Covered Product or any person receiving the Covered Product as a gift from the original purchaser at time of original installation.

Section 9.09 Acknowledgement of Full Understanding. THE BUYER ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT.

SECTION 10


SOFTWARE LICENSE

Section 10.01 Software. Buyer understands and agrees that the Goods are operated with proprietary QuesOS software, owned and updated by Seller.

Section 10.02 License. Seller agrees to give to Buyer a non-transferrable license to use the proprietary QuesOS Software in exchange for a subscription license fee of $99.00/month. This license fee is subject to change with QuesOS Software updates. Seller will notify Buyer of pending changes to subscription license fees. Buyer understands that this license is non-transferable. If Buyer sells any Goods to a third party, any new owner may purchase a QuesOS Software license for a one time activation fee of $1,200.00 and a monthly subscription fee of $99.00/month.

Section 10.03 Auto-Billing. Buyer agrees to allow Seller to charge a credit card held on file $99.00/month on the first day of each month. Auto-billing may be canceled at any time.

Section 10.04 Acknowledgement of Full Understanding. Buyer acknowledges and understands that the proprietary QuesOS Software may not be operated without a valid software license, and that failure to pay the monthly subscription fee will terminate the software license within thirty (30) days from the date payment is due. Buyer acknowledges and understands that operation of the proprietary QuesOS Software without a valid software license from Seller constitutes copyright infringement and that violators will be prosecuted to the full extent of the law.

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