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 1.01 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.
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.
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 4.01 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 email@example.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 5.01 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 6.01 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-transferable license to use the proprietary QuesOS Software for the duration of the finance lease with Bank. Following the termination of the finance lease, the software license will end, and Customer may purchase a software license subscription for $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 the software is purchased. 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 6.05 No Refunds. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED PERIODS. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period.
Section 6.06 Proration. If Customer starts service in the middle of a billing cycle, Customer will be charged the prorated amount for the remaining month.
Section 6.07 Change of Fees. Supplier may change the price for the Paid Subscriptions, Pre-Paid Period (for periods not yet paid for), or Codes from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change.
BENEFITS PROVIDED DURING LEASE TERM AND CONTINUED MONTHLY SOFTWARE MEMBERSHIP
Section 7.01 Benefits.
7.01a SMS + Email. Queso owners (Canada and US) currently paying for the software (through Membership or the monthly fees) will get access to unlimited SMS and email. This feature may be restricted due to suspected abuse on a case by case basis.
7.01b Unlimited Events. Create unlimited events without additional fees on your Queso Photobooth.
7.01c Free Unlimited Software Updates. Queso membership includes all software updates produced by Supplier for distribution to the general public.
7.01d Extended Support. Technical support will be available 7 days a week 9am-5pm Pacific.
Section 8.01 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 8.02 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.
LIMITATION OF LIABILITY
Section 9.01 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 9.02 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 9.03 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 10.01 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 10.02 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 10.03 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 10.04 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 10.05 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 10.06 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 10.07 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 10.08 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 10.09 Acknowledgement of Full Understanding. THE Customer ACKNOWLEDGES AND AGREES THAT HE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT.
MANUFACTURER'S SOFTWARE GUARANTEE TERMS AND CONDITIONS
Photobooths manufactured and supplied by Photobooth Supply Co., are guaranteed against technical software faults resulting in a refunded event for the duration of the guarantee period (Manufacturer’s Software Guarantee). This guarantee means that any event subject to a technical software fault resulting in a refunded event will warrant a compensatory month of software, subject to the following terms and conditions:
- The product must be purchased and used within one of the following territories: The United States of America, Canada, or the United Kingdom.
- The product must be correctly installed and commissioned in accordance with the installation instructions for your product and internet speeds during use must meet 10/1 Mbps Up/Down if using or attempting to use any internet based features or functions.
- The product must be tested and known working within 5 days of purchase.
- The guarantee period will commence from date of first event, unless the first event is held more than one month from the date on which the product was dispatched by us, in which case the guarantee period will commence one month from the date of Manufacture
- The product must only be used in a domestic or light commercial environment, (light commercial is defined as a semi domestic/commercial environment, including hotels, golf courses, ballrooms, churches or other religious buildings, hair salons, small shops, pubs, etc. )
- The product must be maintained and used in accordance with the manufacturer’s user instructions and running the latest version of the software. Proof of software version will be required to validate a guarantee.
- We will not accept or reimburse the costs of any third party who undertakes any work carried out on the product. Reimbursement will be for the amount paid for software component of any membership agreement only.
- The guarantee period will not be extended even if we repair or replace any product or part.
- Any claim made under the terms and conditions of this guarantee must be made within the guarantee period.
- You must comply with our success team appointment requests and attend all requested appointment times in service of resolving issues before events.
The Manufacturer’s Guarantee does not apply to:
- Issues arising from hardware misuse or malfunction
- Issues arising from software misuse
- Issues that do not result in a full refund to paying customer
- Issues that arise at unpaid events
- Issues arising solely from a lack of internet service or speed
l. Compensatory month of software will be granted only if all reasonable attempts, including attempting to contact support and to resolve the problem through use of support documentation, were taken.
By selecting the "I agree" button when you purchase, you agree to be bound to specified terms and conditions.