TERMS & CONDITIONS
1.PRODUCTS, SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Client the Products and Services. As part of the registration process, Client will identify an administrative username and password for Client's Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, Company will provide Client with reasonable technical support services in accordance with the Company's standard practice.
2.DEPOSIT AND PRODUCT MAINTENANCE
2.1To secure performance of Client's obligations under this Agreement, Client shall pay to the Company the Security Deposit. Upon the return of the Product to the Company in good working order, without damage, the Company shall refund the Security Deposit to the Client. The Security Deposit shall be returned to the Client with 28 business days after the end of the lease. The Security Deposit may/may not be fully returned based on the condition of the returned product.
2.2 Client shall be responsible for any loss of or damage to the Product from any cause at all, whether or not insured, from the Product Acceptance Date. If the Product is lost, stolen or damaged, the Client will promptly notify the Company of such event. In no event shall such loss or damage relieve Client of its obligations under this Agreement. In the event of such loss or damage, Client, at its option, shall: (i) promptly repair the Product to return it to good working order; or (ii) pay the Company the replacement value, $3500 per self-order kiosk (INFI K2), less any rental payments previously paid.
2.3 Upon termination of this Agreement, Client, at is sole cost and expense, shall promptly deliver the Product to the Company at 5113 S Harper Ave Suite 2C, Chicago, IL 60615. Client shall be liable to the Company for the fair market value of the Product, determined as of the date of this Agreement, unless Client shall return the Product to the Company within five (5) business days after termination of this Agreement, in good working order, reasonable wear and tear excepted. Client shall be responsible for any damage to the Product in shipping the Product back to the Company. In the event the Company provides shipping instructions to Client, Clients shall comply with such shipping instructions.
2.4 Client shall exercise due care in its operation, use, and maintenance of the Product. Client shall not use, and shall not permit others to use, the Product in any manner that would contravene applicable laws, rules, regulations and other governmental directives, would violate the terms of any manufacturer's or like warranty, or would contravene the manufacturer's reasonable operational standards for the Product. If the Company notifies Client of any additional operational standards, Client shall adhere, and shall cause others using the Product under this Agreement to adhere, to such standards in the operation of the Product. Client shall not alter or modify the Product without the prior written consent of the Company. Client agrees that only qualified employees of Licensee shall operate the Product.
3.RESTRICTIONS AND RESPONSIBILITIES
3.1 Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by the Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
3.2 Further, Client may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR Section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3 Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client's use of Services. Although the Company has no obligation to monitor the Client's use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.4 Client shall be responsible for maintaining the security of the Product, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Product with or without Client's knowledge or consent.
4.CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) to collect transaction to modify and collect credit card processing fee from business and impose kiosk service fee to customers to compensate company's cost incurred from any financial firms, including but not limited to banks, payment service providers and ACH transfer service providers, and (d) all intellectual property rights related to any of the foregoing.
4.2 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Client includes non-public data provided by Client to Company to enable the provision of the Services ("Client Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any their person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary information of the Disclosing Party or (e) is required to be disclosed by law.
4.3 Notwithstanding anything to the contrary, Company shall have the right collect, analyze and keep confidential of the data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and Company will be free (during and after the term thereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5.PAYMENT OF FEES
5.1 Client will pay Company the applicable fees described in the Order Form for the Products, Services and Implementation Services in accordance with the terms therein (the "Fees"). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Client (which may be sent b email). The Fees or applicable changes only occurs in case of significant market changes in general and will be applied to all the Company clients and partners. If the Client believes that Company has billed the Client incorrectly, the Client must contact the Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
5.2 Company may choose to bill through an invoice or directly deducted from the revenue, in which case, full payment for invoices issued in any given month must be received by the Company three (3) days after the receiving date of the invoice. If the Client doesn't have enough revenue to pay for the subscription fee. the Company will use the credit card information to process the fees and a 3% of processing rate will be applied toward the total amount.
6.INFICARE WARRANTY AND DISCLAIMER
INFI's sole warranty obligation to the owner of its products is to, at INFI's sole discretion, repair or replace any defective product without charge provided the products are returned prepaid (that is, shipping charges excluded) to INFI and unless the product defect resulted from customer abuse, misuse or negligence, normal wear and tear or damage caused by accident, within the warranty period. INFI products are only intended for indoor use and for use under static loads. Failure to use INFI products in this way will void this Warranty. Unauthorized service or repairs by anyone other than authorized INFI personnel renders this Warranty void and releases INFI from any further responsibility or obligation. Thus INFI will not be responsible and disclaims liability for defects or damage due to service, modifications, maintenance, improper installation and/or installations over the specified weight capacity, tampering or damages whatsoever arising out of the use or inability to use INFI products. Any repairs to INFI products required due to misuse, abuse, negligence, normal wear and tear or repairs of defective INFI product outside the warranty period will be made at the current established INFI factory prices. INFI may require proof of purchase before performing any repair or replacement of any product during the warranty period. INFI LLC ("INFI") warrants your product against defects in materials and workmanship when purchased directly form INFI or an INFI authorized reseller. This warranty is extended only to the original end-user purchaser and shall not be extended to any other person or transferee.
This warranty is in lieu of all other warranties express or implied, including, but not limited to, the implied warranty of merchantability and fitness for a particular purpose. No one is authorized to assume any liability on behalf of INFI or impose any obligation on it in connection with the sale of any product other than as outlined above. In no event will responsibility be assumed or implied for consequential damage arising from the theft of any product secured by an INFI product, by delay of installation, interrupted operation or other causes. To the maximum extent permitted by applicable law, the entire liability of INFI to the customer for any cause whatsoever, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the direct damage proven or an amount equal to the purchase price of the products, whichever is less. in no event shall INFI be liable to any indirect, special reliance, incidental or consequential damages (including lost profits or savings) sustained or incurred in connection with the product. This paragraph shall survive failure of any exclusive remedy.
Because some states and jurisdiction do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply.
7.1 Company shall hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client's use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client's rights hereunder and provide Client a refund of any prepaid, unused fees for the Service. INFI warrants that its products, under normal use, will be free from defects in material and workmanship for a period of not less than 2 years from the original date of purchase. Individual warranty periods may vary from product to product and INFI reserves the right to adjust both the period and terms from time to time. Please refer to the relevant product pages here on our website for the latest details on individual warranty periods.
7.2 Company shall indemnify, save harmless and defend Client, its subsidiaries, its shareholders, directors, officers, employees, agents and representatives, of any of the foregoing from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs and expenses of whatsoever kind or character, including, without limitation, attorney's fees and expenses, arising out of or by reason of any liability or obligation in any manner caused or occasioned by or claimed to be caused or occasioned by, any act, omission, fault or negligence of Company or anyone acting on its behalf, including, without limitation, its subcontractors, directors, officers, employees, agents and representatives of any of the foregoing, in connection with or incident to this Agreement hereunder except where caused by the concurrent gross negligence or willful misconduct of Client, its directors, officers, employees, agents and representatives (other than Company or anyone acting on its behalf), in which event Company's liability for the payments of damages, costs and expenses hereunder shall be reduced in proportion to the negligence of Client, its directors, officers, employees, agents and representatives (other than Company or anyone acting on tis behalf) on the basis of comparative negligence or fault.
7.3 Company's obligations under this Section shall continue without limitation as to time, notwithstanding the extinguishment of other rights and duties under this Agreement by completion, termination or any other manner.
8.LIMITATION OF LIABILITY
Notwithstanding anything to the contrary, except for bodily injury of a person, Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption or data or cost of procurement of substitute goods, services, or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damage; (c) for any matter beyond company's reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Client to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not company has been advised of the possibility of such damages.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at lease on mutually agreed upon press release within 90 days of the Effective Date, and Client otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to the conflict of laws provisions thereof. Any legal proceeding arising out of this Agreement shall be brought only in a state or Federal court of competent jurisdiction located in Chicago, Illinois.