(new)Terms and Conditions - Queso Membership


PHOTOBOOTH SUPPLY CO. SUPPLIER AND WARRANTY AGREEMENT

This Supplier and Warranty Agreement (this "Agreement") is entered into by and between Photobooth Supply Co. ("Supplier") and the customer ("Customer”), collectively (the “Parties”), whereas Supplier is supplying a photo kiosk, Queso Photobooth, (the “Goods”) to Customer, that Customer is securing a loan from a lender to lease with an option to purchase the Goods in accordance with the Customer’s relevant lease agreement with lender.

SECTION 1


LEASING

Section 1.01 Credit Approval. Customer understands that purchase of the Goods is dependent upon a credit check and approval for lease from a lender.

Section 1.02 Lease. Customer understands that leasing of the Goods with a lender is structured as a finance lease as defined by the Uniform Commercial Code § 2a-103. Customer understands that upon signing a lease agreement with a lender, Customer is obligated to fully perform the terms of the lease and may not return the Goods or otherwise terminate the lease before the end of the lease term unless the Customer pays off the remaining balance early.

Section 1.03 Title. Customer understands that Supplier is supplying the Goods to Customer, and the title to the Goods is defined by the agreement between the Customer and lender.

SECTION 2


AGREEMENT TO PROVIDE GOODS

Section 2.01 Supplying the Goods. Subject to the terms and conditions of this Agreement and any agreements between Customer and Lender, the Supplier shall supply the Customer with the Goods.

SECTION 3


SHIPMENT AND DELIVERY

Section 3.01 Shipment. Unless expressly agreed to by the Parties in writing, Supplier shall select the method of shipment of, and the carrier for, the Goods. Supplier will ship the Goods to the Customer’s address as provided in the Invoice.

Section 3.02 Risk of Loss. Supplier will bear the risk of loss until the Goods are delivered to the common carrier.

Section 3.03 Acceptance of the Goods. Customer shall adhere to the method of acceptance as defined in the lender agreement.

SECTION 4


PRODUCT WARRANTIES

Section 4.01 Limited Warranty. Supplier warrants to Customer that for a period of the lease term (the "Warranty Period"), that such Goods will materially conform to the specifications set forth in Supplier'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 4.02 Agreement Holder Responsibilities. To keep this Agreement valid throughout the Warranty Period, You must comply with the following requirements:
Retain any proof of purchases and any receipts for maintenance services, repairs, Supplier updates and/or modifications. You may be required to furnish these documents in the event of a claim.
Operate and maintain the equipment in accordance with the recommendations and instructions in the assembly videos, instruction manuals, help desk, and Supplier’s support team responses. These guidelines are essential to ensure the proper operation of the Covered Product.

Section 4.03 Customer's Exclusive Remedy for Defective Goods. Notwithstanding any other provision of this Agreement, this contains Customer's exclusive remedy for Defective Goods. Customer's remedy is conditioned upon Customer's compliance with its obligations stated below during the Warranty Period, with respect to any allegedly Defective Goods:

Section 4.04 Filing a Warranty Claim. E-mail support@photobooth.com or call the Supplier’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.
Customer shall notify Supplier, in writing, of any alleged claim or defect and request a Return Merchandise Authorization (“RMA”) from Supplier. If shipment of Defective Goods is necessary, the Defective Goods must be shipped to Supplier within ten (10) days after the RMA was issued at Customer’s expense. The Customer will pay for shipping the product to the Supplier and shipping the replacement product back to the Customer. The Customer may elect to purchase insurance on the shipment. The Customer is not liable for any loss or damage occurring during shipment or as the result of poor packaging. The Customer is responsible for providing the Supplier a tracking number via a reputable carrier.
The Supplier will repair, or if unable to be repaired, at Supplier’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 Manufacturer, the Covered Product will be replaced with a product of equal or similar features and functionality.

Section 4.05 Warranty Limitations. 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 Supplier;
been reconstructed, repaired or altered by persons other than Supplier or its authorized representative;
been used with any third-party product, software, hardware or product that has not been previously approved in writing by Supplier;
minor cosmetic imperfections that do not impair the functionality that may be caused by powder coating process;
normal wear and tear on the Goods, including paint chipping and denting;
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 Supplier;
been damaged while moving the product to another location, and
experienced abnormal electric current.

Section 4.06 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. For the avoidance of doubt, Supplier makes no representations or warranties with respect to any Third Party Product.

Section 4.07 Defect Discovered Outside Warranty Period. Supplier 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 Customer shall be responsible for the entire costs of replacement parts, shipping costs, and labor fees.

Section 4.08 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN Section 4.01, Supplier MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, AND (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. Customer ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY Supplier, OR ANY OTHER PERSON ON Supplier’S BEHALF. THIS SETS FORTH THE Customer'S SOLE REMEDY AND Supplier'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.

 

SECTION 5


INTELLECTUAL PROPERTY

Section 5.01 Ownership. Customer acknowledges and agrees that: any and all Supplier's intellectual property, such as patents, copyrights, and trademarks, whether registered or not, ("Supplier’s intellectual property rights") are the sole and exclusive property of Supplier or its licensors;
Customer shall not acquire any ownership interest in any of Supplier's intellectual property rights under this Agreement;
Customer shall use Supplier's intellectual property solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Supplier.

Section 5.02 Prohibited Acts. Customer shall not:
take any action that might interfere with any of Supplier's intellectual property rights in or to Supplier's intellectual property rights, including Supplier's ownership or exercise thereof;
challenge any right, title or interest of Supplier in or to Supplier's intellectual property rights;
register or apply for registrations, anywhere in the world, for Supplier's Trademarks or any other Trademark that is similar to Supplier's Trademarks or that incorporates Supplier's Trademarks in whole or in confusingly similar part;
use any mark, anywhere that is confusingly similar to Supplier's Trademarks in whole or in confusingly similar part;
engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Supplier's Trademarks;
misappropriate any of Supplier's Trademarks for use as a domain name without prior written consent from Supplier; or
alter, obscure or remove any Supplier's Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Supplier may provide.

SECTION 6


SOFTWARE LICENSE

Section 6.01 Software. Customer understands and agrees that the Goods are operated with proprietary QuesOS Software, owned and updated by Supplier.

Section 6.02 License. Supplier agrees to give to Customer a non-transferrable license to use the proprietary QuesOS Software for the duration of the finance lease with Bank. Following the termination of the finance lease, Customer may purchase a software license in exchange for a subscription license fee of $99.00/month. This license fee is subject to change with software updates. Supplier will notify Customer of pending changes to subscription license fees.

Section 6.03 Auto-Billing. Customer agrees to allow Supplier to charge a credit card held on file $99.00/month on the first date of every month after the duration of the finance lease with the Bank if they decide to not renew the lease term. This charge does not apply if the Customer decides to renew the lease term with the Supplier. Auto-billing may be canceled at any time.

Section 6.04 Acknowledgement of Full Understanding. Acknowledgement of Full Understanding. Customer acknowledges and understands that the proprietary QuesoOS 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. Customer acknowledges and understands that operation of the proprietary QuesOS Software without a valid software license from Supplier constitutes copyright infringement and that violators will be prosecuted to the full extent of the law.

SECTION 7


CONFIDENTIALITY

Section 7.01 Scope of Confidential Information. Any and all confidential information and materials comprising or relating to Supplier’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. Customer shall: protect and safeguard the confidentiality of the Confidential Information with at least the same degree of care as Customer would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, and
not use the Supplier’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. NEITHER Supplier NOR ITS REPRESENTATIVES ARE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, 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 Customer OR COULD HAVE BEEN REASONABLY FORESEEN BY Supplier, 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. SUPPLIER'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 TOTAL OF THE AMOUNTS PAID.

Section 8.03 ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Customer 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 Supplier, 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 Supplier’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 Supplier’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 Customer and the Supplier 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 Customer and by the Supplier. 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. Supplier shall not be liable or responsible to Customer, 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. Customer 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. Should Customer resell the unit after the lease term, Customer understands that the software will be deactivated and the next owner will incur a $1,200 software reactivation fee.

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

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