terms & conditions
AGREEMENT OF SALE
1. DESCRIPTION OF SYSTEM. Subject to all of the terms and conditions herein, POS America t/a Advanced Hospitality Systems (hereinafter “Seller”) agrees to sell and customer (hereinafter “Buyer”) hereby agrees to buy a system (hereinafter “System”) capable of performing the functions described in the Seller’s standard specifications documents. The System will consist of electronic hardware and components thereof (hereinafter “Equipment”) and the right to use application programs (hereinafter ”Software”).
2. ENFORCEMENT. Buyer agrees that this agreement and any transactions hereunder shall be governed by, construed and interpreted in accordance with the laws of the State of New Jersey. Buyer agrees that all disputes, controversies or claims arising out of, or relating to this contract shall be the exclusive jurisdiction of the courts of the State of New Jersey, County of Camden and shall be settled through trial by judge . The Buyer will be responsible for all court costs, attorney fees and other costs incurred by Seller reasonably applicable to the suit if Seller is not found to be at fault.
3. PURCHASE PRICE AND PAYMENT TERMS. The total purchase price for the System shall be the amount set forth on the face of this document in U.S. dollars. All payments shall be paid in full based on terms of sales contract. Installation of equipment will constitute acceptance of contracted hardware and software.
4. TAXES. Buyer shall either, (a) pay sales and use taxes, which will apply to the acquisition of Seller’s products and/or services, or (b) provide to Seller a tax exemption certificate.
5. SHIPMENT, TITLE AND RISK OF LOSS. The System shall be shipped from Seller to Buyer, F.O.B. Seller’s facility. Title to Equipment shall pass to Buyer upon payment in full. Title to Software shall remain at all times with Seller or the manufacturer of the Software . Seller will be responsible for damage to equipment via shipping. Seller insures system during shipment to Buyer’s site. Buyer is responsible for all risks of loss or damage to hardware upon delivery to Buyer’s site and to Software upon acceptance of System and Software.
6. DATE OF ACCEPTANCE & DATE OF INSTALLATION. The “Date of Acceptance” shall be defined as the date Buyer accepts in writing Software operation and functionality. “Date of Installation” shall be defined as the date Customer accepts delivery of equipment at site. These dates constitute agreed upon dates in the performance of this agreement. If Buyer postpones such dates, then Seller reserves the right to reschedule installation dates based on Sellers other installation commitments. Buyer agrees that all payments due on the above dates are due on the originally agreed upon date regardless of delays caused by Buyer.
7. INSTALLATION RESPONSIBILITIES. Buyer agrees to (i) prepare site for the Equipment in accordance with Seller’s specifications, (ii) pull necessary cables to each of the locations at which the Equipment is to be installed, (iii) assure that all applicable laws, ordinances and building codes are complied with (iv) obtain any necessary permits and (v) provide a training location as required to adequately train Buyer’s employees, if applicable.
8. SELLER’S SERVICES. If at any time Buyer requests and Seller agrees to provide installation, training or services, Buyer agrees to (i) pay Seller the agreed upon rate or Sellers then current rates for such service(s) by the agreed upon due date and (ii) reimburse Seller for its actual and reasonable transportation and living expenses incurred in performance of such service(s). Buyer agrees to the Seller’s standard support terms which are available at www.advancedhospitality.com/terms
9. CONFIDENTIAL INFORMATION. Buyer recognizes the confidential nature of the software and documentation provided by Seller and acknowledges the obligation not to disclose such documentation to any third party. Further, Seller and Buyer recognize the confidential nature of the agreement and each agrees not to disclose said terms without first obtaining prior agreement in writing from the other.
10. CONSEQUENTIAL DAMAGES. Seller shall not assume or have any responsibility or liability for any loss, cost, damage, demand, expense, claim (including any increases in Buyer’s operating costs or loss of profits or goodwill) that may arise or result in any way out of this transaction, except as expressly set forth herein. Seller shall not be responsible for computer viruses after date of Installation. Seller must approve any new software or hardware prior to being introduced to the System. Buyer agrees to pay Seller’s current published rates for travel and labor for any problems arising from viruses and or new software or hardware added to the System by Buyer.
11. WARRANTY. All products delivered by Seller under this Agreement shall be delivered with Seller ’s standard warranty terms as specified in the sales agreement. These terms may not reflect manufacturer’s standard commercial warranty. Terms of service during the Warranty period are as outlined in Seller’s Standard Support Contract Terms available at www.advancedhospitality.com/terms. SELLER SPECIFICALLY DISCLAIMS ALL OTHER EXPRESSED OR IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS.
12. INDEMNIFICATION. Seller indemnifies Buyer against any claim that products provided by Seller infringe on a United States patent or copyright, provided Buyer gives Seller prompt, written notice of any claim and grants Seller control of the defense and settlement thereof. Seller shall, at its option and expense, either (1) replace and or modify the product so that it becomes non-infringing, (2) accept return of the product and refund an amount equal to the depreciated value of the returned product. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF THE SELLER AND SOLE REMEDY OF BUYER WITH RESPECT TO ANY CLAIM OR ACTION BASED IN WHOLE OR IN PART UPON PATENT OR COPYRIGHT INFRINGEMENT. Buyer agrees to indemnify, defend and hold harmless Seller against any and all claims arising from the actions of Seller in Seller ’s performance of this contract, or for actions taken by Seller on behalf of Buyer, or actions performed in reliance upon information provided by Buyer .
13. EARLY TERMINATION. If Buyer terminates this agreement, Buyer agrees to pay all Seller’ s costs incurred for, and reasonably allocated to, the terminated portion of the work. Without limiting the foregoing, if Buyer terminates this Agreement, Buyer agrees that Seller shall be entitled to ten (10) percent of the purchase price as Seller’s liquidated damages, and not as a penalty. Buyer may not terminate this contract after installation.
14. REPLACEMENT OF EQUIPMENT AND SOFTWARE In the event that contracted equipment and software require modification, upgrade or replacement at site, Buyer shall be responsible for all cost associated with such modifications to original contract. Buyer agrees to pay a restocking fee of not less than 10% on returned items. Special Order items are not returnable. If addition labor costs are required to perform modification Buyer agrees to pay for them at Seller’s current published rates.
15. SYSTEM FAILURE. System failure consists of inability of equipment and or software to operate within its design specifications. In the event of System Failure, Buyer agrees to notify Seller immediately. Seller shall have thirty days, after receipt of notice from Seller, to correct any such claimed System Failure. In the event of software failure and Seller cannot effectively remedy the software failure, Seller, at Sellers sole discretion, agrees to refund Buyer for costs of software, or replace software with comparable software.
16. TERMINATION OF Agreement Buyer may not terminate this agreement other than for Seller’s default. No termination by Buyer for Seller’s default shall be effective unless Seller has failed to correct such default within 30 days, after receipt by Seller of a written notice by certified mail from Buyer indicating with specific details of such default.
17. PAYMENTS. All payments are due in full on the agreed upon date. FINANCE CHARGES will be computed at a rate of 1.5% per month on all balances 30 days past due, which is an ANNUAL PERCENTAGE RATE of 18%. Finance charges are applied to the previous balance after deducting current payments and/credits. All invoices referred for collection will be subject to costs of collection and reasonable attorney’s fees. The Buyer irrevocably submits to the jurisdiction of the New Jersey Superior Court in the event suit is instituted to recover the balance due from the Customer.
18. ASSIGNMENT. This Agreement is specific to the parties hereto, and neither party may assign or transfer its interest without the prior written consent of the other party, which consent shall not be unreasonably withheld .
19. FORCE MAJEURE. Seller shall not be liable for delays or defaults in performance due to causes beyond Seller’s control and without the fault or negligence of Seller or Seller’s subcontractors. Such causes may include, but are not limited to, acts of God or the public enemy, acts of Government in either its sovereign or contractual capacities, fires, floods, epidemics, quarantine, restrictions, strikes, labor disputes, freight embargoes, and unusually severe weather. If Seller is unable wholly or partially to perform because of any cause beyond the control of Seller, Seller may terminate this agreement without any further liability to either party.
20. FINANCING. Buyer may finance all or part of this Agreement. Seller may refer Buyer to a finance company, but Seller is not an agent of any such finance company. If Buyer decides to finance any part of this Agreement, then Buyer agrees to make a good faith effort to secure the necessary financing, and shall take the reasonable actions necessary to facilitate the approval and binding of such financing, including but not limited to, the timely completion and signing of necessary forms, providing requested documentation in a timely fashion, paying required monies when originally due, and sending such forms or documentation in an appropriately expeditious manner so as to insure receipt when requested. Buyer further agrees that failure to have necessary financing bound and in place as required by Seller may delay agreed upon dates, and any such delays are not the fault of the Seller. If the installation date is delayed, Buyer agrees to pre-fund this Agreement. If Buyer fails to make a good faith effort to secure financing, or is unable to secure financing for any reason, Seller may terminate this contract and Buyer shall be liable for all Sellers ’ costs incurred for, and reasonably allocated to, the terminated portion of the work. Without limiting the foregoing, Seller shall be entitled to ten (10) percent of the purchase price as Seller’s liquidated damages, and not as a penalty.
21. NOTICES. All notices issued by one party to the other shall be in writing and sent via a method requiring proof of delivery, to the address set forth on the face of this Agreement or to such other address as such party shall have designated by written notice .
22. RELATIONSHIP OF PARTIES. The parties agree that each is an independent contractor and neither is an authorized agent or representative of the other. No employer-employee or any other agency relationship is created hereby.
23. SEVERABILITY. Any terms or provision of this Agreement which shall be found by a court of competent jurisdiction to be invalid, void, or illegal shall in no way offset, impair or invalidate any other terms or provision hereof and all other terms and provisions hereof shall remain in full force and effect. Failure of the Company to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of the any party under this Service Contract.
24 WAIVER. The failure of either party to insist on performance of any provision of this Agreement shall not be construed as a waiver of the provision at any later date.
25. GOVERNING LAW. Irrespective of the place of performance, the laws of the State of New Jersey shall govern this agreement.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties and may only be modified by a written instrument executed by authorized officers of the parties . Any oral agreement or representation made at any date before or after this agreement shall bind neither Seller nor Buyer