Linga POS, LLC (hereafter “Linga POS ®”)
1 – Title to the Equipment shall vest in Customer and payment shall be due prior to shipment of the Equipment to Customer.
2 – It shall be Customer’s responsibility to maintain environmental conditions meeting specifications of the manufacturer of the Equipment.
3 – Customer shall pay Linga POS ® in addition, any tax (exclusive of taxes based on net income) on this Agreement, on or measured by the prices and/or other charges, or the Equipment, program products and services furnished, for their use, however designated, levied or based, whenever Linga POS ® must itself pay and/or collect such tax from Customer according to the applicable statutes, or ordinances as interpreted by the departmental authorities of the taxing unit. Linga POS ® shall invoice Customer for all taxes unless Customer provides Linga POS ® with a valid resale exemption certificate or equivalent, if applicable, from the state where the Equipment is to be delivered. It shall be Customer’s sole obligation after payment of Linga POS ® to challenge the applicability of any tax. Any personal property taxes that are assessable on the Equipment after shipment shall be borne by Customer. Customer agrees to indemnify and hold harmless Linga POS ® from any applicable sales or use taxes, which the taxing authority of any state requires Linga POS ® to pay on Equipment ordered hereunder. Customer shall pay all delivery and handling charges. In addition, if delivery to the installation site cannot be made with equipment normally employed by the Equipment carrier, any extra costs incurred thereby, including extra insurance, rigging or handling shall be paid by Customer within ten (10) days after receipt of invoice of said special charges.
4 – Linga POS ® warrants that it has title to the Equipment and the right to convey title to Customer. LINGA POS ®, AS AN AUTHORIZED DISTRIBUTOR FOR THE MANUFACTURER OF THE EQUIPMENT DESCRIBED HEREIN, MAKES NO WARRANTY OF ITS OWN OF THE EQUIPMENT BUT HEREBY TRANSFERS AND ASSIGNS TO CUSTOMER ALL WARRANTIES OF THE MANUFACTURER, WHICH LINGA POS ® HAS THE POWER TO ASSIGN AND TRANSFER. No representation or other affirmation of fact, including but not limited to statements regarding capacity, suitability for use or performance of the Equipment shall be or deemed to be a warranty or representation by Linga POS ® for any purpose nor give rise to any liability or obligation of Linga POS ® whatsoever. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED. LINGA POS ® EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5 – The Linga POS ® does not provide any warranty for equipment sold. Only manufactures’ warranty applies. Linga POS ®’s warranty does not include the assumption by Linga POS ® of liability: (a) for any loss or damage caused by delays in the rendering of Equipment maintenance for any reason; or, (b) for labor, expense or material necessary to repair damage to the Equipment caused by (1) accident; (2) negligence, or abuse of Customer including failure to maintain environmental conditions; (3) acts of third person including, but not limited to, repair, maintenance or other corrective work provided by parties other than Linga POS ® or Linga POS ®’s authorized agent or representative; (4) causes external to the Equipment, such as electrical power fluctuations and failures; or (5) floods, windstorms or other acts of God.
6 – Customer assumes full responsibility for the overall effectiveness and efficiency of the operating environment in which the Equipment and Linga POS ®’s Software are to function. After implementation of the Equipment, Customer shall check the accuracy of the Customer information. Linga POS ® shall promptly update any discrepancies Customer provides to Linga POS ® in writing. Customer agrees that it is responsible for the accuracy of the information provided to Linga POS ® and shall indemnify and hold Linga POS ® harmless from any losses incurred for such inaccurate information. Customer assumes full responsibility for the backup data, unless Customer has paid for and Linga POS ® has agreed in writing to provide backup and cloud services for Customer.
7 – By signing below, I hereby waive any rights I may have against Linga POS ®, its officers, agents and employees for any and all liability for unsettled credit card batches, lost transactions, lost tip adjustments and any other issues related to credit card transactions which may be caused by the use of third party credit card processing software.
8 – THE PARTIES EXPRESSLY AGREE THAT IN NO EVENT SHALL LINGA POS ® BE LIABLE FOR LOSS OF PROFITS, INDIRECT, SPECIAL AND CONSEQUENTIAL OR OTHER SIMILAR DAMAGES ARISING OUT OF BREACH OF THIS AGREEMENT OR OBLIGATIONS UNDER THE AGREEMENT. LINGA POS ® SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN SHIPMENT, INSTALLATION OR FURNISHING OF EQUIPMENT OR SERVICES UNDER THIS AGREEMENT. As to software, no action arising out of any claimed breach of this Agreement may be brought by either party more than one (1) year after the cause of the action has accrued; as to hardware refer to manufacturer as Linga POS ® does not provide any warranty.
9 – If Customer fails to perform any of its obligations under this Agreement within the time they are required, Customer agrees, at Linga POS ®’s option, to return all items that are subject to this Agreement to Linga POS ®, or make these items available for Linga POS ® to remove, after which Linga POS ® will continue to exercise its rights and remedies under applicable law.
10 – Linga POS ® will give a full refund, less a 30% restocking fee, for returned Equipment, if returned within thirty (30) calendar days of the purchase date. No refunds will be given after thirty (30) calendar days. In reference to any Apple product not limited to the iPad, you have (14) calendar days from the date you received it. All amounts paid by Customer under this Agreement are non-refundable without Linga POS ®’s prior written consent. There shall be no refunds on software licenses, shipping, menu programming and training fees. If Customer owes any amounts to Linga POS ®, Customer hereby authorizes Linga POS ® to ACH the funds directly from Customer’s checking account or to charge Customer’s credit card on file with Linga POS ®.
11 – In the event that Customer makes use of any software programming in connection with the Equipment supplied hereunder which is not provided by Linga POS ®, Customer acknowledges that Linga POS ® has made no representation or warranties with respect to any non-Linga POS ® software, its performance on the Equipment or the service to be provided with respect to such non-Linga POS ® soft-ware, and Linga POS ® shall incur no liability to Customer arising out of the use of such non-Linga POS ® software or the furnishing of such services. Customer acknowledges that no Linga POS ® software is being furnished to Customer by Linga POS ® except pursuant to separate written Point of Sale License Agreement between Customer and Linga POS ®.
12 – Linga POS ® Equipment comes with limited or no anti-virus protection. It shall be the Customer’s responsibility to provide anti-virus protection to the Equipment. Linga POS ® shall not be responsible for any damage done to the Equipment or any of the Customer’s property by computer viruses, malware, Trojans or any similar malicious computer program (collectively “Malicious Computer Programs”) regardless of whether such Malicious Computer Programs are caused by software provided by Linga POS ® to the Customer, including but not limited to free software as part of a pilot or demo. As stated in Section 8 above, Linga POS ® shall not be liable for loss of profits, indirect, special and consequential or similar damages for any damage done to the Equipment or any of the Customer’s property by Malicious Computer Programs. Should Customer’s Equipment become infected with Malicious Computer Programs, Linga POS ® will charge its hourly service rates unless the client is otherwise covered by Linga POS ®’s service programs.
13 – During the term of this Agreement and thereafter, Customer agrees to take no action, except for an action to enforce Customer’s rights in an arbitration proceeding or court of law, which is intended, or would reasonably be expected, to harm Linga POS ® or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to Linga POS ®, including but not limited to the posting of disparaging comments or reviews concerning Linga POS ® on the Internet (all of which shall be known as Disparaging Comments). Disparaging Comments include any negative statement, whether written or oral, about Linga POS ®, its officers, directors or assigns.
In the event Customer makes any Disparaging Comments, Customer and Linga POS ® agree that the damages arising from such comments will be difficult if not impossible to determine. Therefore, in the event Customer makes Disparaging Comments, Customer shall pay to Linga POS ® $3,500.00 for each utterance of the comment (i.e., on each webpage that a Disparaging Comment is posted) as Liquidated Damages and not as a penalty.
14 – No supplement, modification or amendment of this Agreement shall be binding unless executed in writing, by all the parties hereto. No waiver of any of the provisions of the Agreement shall be deemed, or shall constitute, a waiver of any other provisions, nor shall any waiver be a continuing waiver.
15 – This Agreement constitutes the entire agreement, understanding and representations, express or implied, between the Customer and Linga POS ® with respect to the Equipment, and/or related services to be furnished. This Agreement supersedes all prior communications between the parties including all oral and written proposals.
16 – This Agreement may be executed in one or more counterparts, but all of which together shall constitute one and the same instrument. Notwithstanding the foregoing, the counterpart of this Agreement held by Linga POS ® shall be considered the original and shall control in case of any variance between it and any other signed copy.
17 – The laws of the State of Florida shall govern as to the interpretation, validity and effect of this Agreement. This Agreement is performable in Lee County, Florida.
18 – The parties hereto, and each of them, acknowledge that they have had the opportunity to have been represented by independent counsel of their own choice throughout all negotiations which preceded the execution of this Agreement and the parties further agree that the terms of this Agreement shall be given a neutral interpretation and any ambiguity or uncertainty herein should not be construed against any party hereto.
19 – In the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions or portions thereof, shall not be affected thereby.
20 – This Agreement shall be binding on and shall inure to the benefit of the parties to it and their respective heirs, legal representatives, successors, and assigns.
21 – If any legal action or any arbitration or other proceedings are brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
22 – All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally upon the party to whom notice is to be given, or on the third day after mailing if mailed to the party to whom notice is being given by first class mail, registered or certified, postage pre-paid, and properly addressed to the parties herein at the addresses noted above.
23 – Hold Harmless Terms. Customer agrees to hold harmless and unconditionally indemnify Linga POS ®, its employees, officers, agents, affiliates and subsidiaries, against and for all liability, cost, expenses, claims and damages which Linga POS ®, may at any time suffer or sustain or become liable for by reason of any accidents, damages, or injuries either to persons or property or both, of Customer, or any third parties, or to the property of Linga POS ®, or any persons or firms affiliated with Linga POS ®, in any manner, arising from or related to the use of any item sold hereunder, including but not limited to any negligent act or omission of Linga POS ®, its officers, agents, employees, affiliates, or subsidiaries, or any negligent acts or omissions of parties supplying items or equipment used by Linga POS ®, in manufacturing any item or product sold to Customer. In addition to the above, Customer agrees that Linga POS ®, its officers, employees, agents, affiliates and subsidiaries, will not be liable under any indemnity theories, whether common law, statutory, contractual or otherwise, to Customer; instead, Customer agrees to indemnify and hold harmless Linga POS ® for all claims, liabilities, cost, expenses and damages asserted under all legal theories, including, without limitation, negligence, product defect and strict liability in tort.
24 – Disputes. ANY CONTROVERSY OR CLAIM BETWEEN THE PARTIES HERETO, THEIR EMPLOYEES, AGENTS, SUCCESSORS OR ASSIGNS, REGARDLESS OF THE NATURE OF THE THEORY OR THE CAUSE OF ACTION UNDER WHICH IT IS ASSERTED, INCLUDING ANY CLAIM OF MISREPRESENTATION, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BREACH THEREOF, OR THE FURNISHING OF ANY EQUIPMENT OR SERVICES BY EITHER PARTY, SHALL BE SETTLED BY ARBITRATION.
A single arbitrator under the auspices of the then current Commercial Rules of American Arbitration Association shall conduct the arbitration proceeding. The arbitrator shall be chosen from a panel of persons knowledgeable in business in-formation and data processing systems. The power and office of the arbitrator shall arise wholly and solely from this Agreement and said Rules.
THE ARBITRATION SHALL RESIDE EXCLUSIVELY IN LEE COUNTY, STATE OF FLORIDA, FORT MYERS, AND THE AWARD OF THE ARBITRATOR SO RENDERED SHALL BE FINAL AND BINDING, EXCEPT TO THE EXTENT THAT ANY ARBITRATION AWARD MAY BE MODIFIED OR VACATED PURSUANT TO FLORIDA LAW. THE AWARD SO RENDERED MAY BE CONFIRMED, MODIFIED OR VACATED ONLY IN A COURT OF APPROPRIATE JURISDICTION IN FORT MYERS, FLORIDA.
THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED AND ALL LEGAL RELATIONS CREATED HEREIN SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
Where Linga POS ® has extended Credit, the following terms shall apply:
1 – SECURITY AGREEMENT
Customer hereby grants Linga POS ® a security interest under the Uniform Commercial Code in the property (collectively the “Collateral” and individually an “Item” or “Item of Collateral”) described on Linga POS ®’s final Invoice (“Invoice”) attached hereto and incorporated herein. Such security interest is granted to secure performance by Customer of its obligations hereunder and under any other present or future agreement with Linga POS ®. Customer shall ensure that such security interest is and shall remain a sole first lien security interest.
2 – PAYMENTS
Customer shall repay Linga POS ® the total amount shown on the Invoice together with interest in the number of periodic installments shown on the Invoice. The initial installment payment shall be deemed due as of the date indicated on the Invoice, and subsequent installment payments shall be due on the same day of each month thereafter until paid, whether or not an invoice is rendered. Advance Payments, if any are shown on the Invoice, will be used for the first payment and any balance will be used for the last payment(s), provided that, if there is a default, any payments under this agreement may be applied to Customer’s obligation to Linga POS ® in such order as Linga POS ® chooses. Additionally, Customer shall pay $125 as a document processing fee on invoice.
3 – NO AGENCY
CUSTOMER ACKNOWLEDGES THAT NO SUPPLIER OF ANY ITEM OR INTERMEDIARY NOR ANY AGENT OF EITHER THEREOF IS AN AGENT OF LINGA POS ® AND FURTHER THAT NONE OF SUCH PARTIES IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS AGREEMENT. NO REPRESENTATION AS TO ANY MATTER BY ANY SUCH PARTY SHALL BIND LINGA POS ® OR AFFECT CUSTOMER’S DUTY TO PAY THE INSTALLMENT PAYMENTS AND PERFORM ITS OTHER OBLIGATIONS HEREUNDER.
4 – NON-CANCELABLE AGREEMENT; REPAYMENT; NO OFFSET
THIS AGREEMENT IS NON-CANCELABLE BY CUSTOMER FOR ANY REASON WHATSOEVER. CUSTOMER MAY REPAY THE INSTALLMENT PAYMENTS ONLY IN ACCORDANCE HEREWITH. ALL PAYMENTS HEREUNDER ARE TO BE MADE WITHOUT OFFSET.
5 – FINANCING
THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT. LINGA POS ® HAS NOT BEEN INVOLVED IN THE SELECTION OR PURCHASE OF AND HAS MADE AND HEREBY MAKES NO AGREEMENT, REPRESENTATION OR WARRANTY AS TO ANY ITEM OF COLLATERAL.
6 – LOCATION; INSPECTION; USE
Customer shall keep, or as to an Item which is movable, permanently garaged and not remove from the United States, as appropriate, each Item of Collateral in Customer’s possession and control at the Collateral Location specified on the Invoice or at such other location to which such Item may have been moved with prior written consent of Linga POS ®. Upon request, Linga POS ® may inspect the Collateral during normal business hours and enter the premises where the Collateral may be located for such purposes. Each Item shall be used solely for commercial or business purposes and operated in a careful and proper manner and in compliance with all applicable governmental requirements and all requirements of insurance policies carried hereunder and all manufacturers’ instructions and warranty requirements.
7 – ALTERATIONS; SECURITY INTEREST COVERAGE
Without Linga POS ®’s prior written consent, Customer shall not make any alterations, additions or improvements to an Item of Collateral which detract from its economic value or functional utility. All additions and improvements made to an Item shall be deemed accessions thereto, and shall not be removed if removal would impair the Item’s economic value or functional utility. Linga POS ®’s security interest shall cover all modifications, accessions, additions to and replacements and substitutions for the Collateral. Customer will not make any replacements or substitutions without Linga POS ®’s prior written consent.
8 – MAINTENANCE
Customer shall maintain the Collateral in good repair, condition and working order. Customer shall cause all repairs required to maintain the Collateral in such condition to be made promptly by qualified parties. Customer will cause each Item of Collateral for which a service contract is generally available to be covered by such a contract which provides coverages typical as to property of the type involved and is issued by a competent servicing entity.
9 – LOSS AND DAMAGE; CASUALTY VALUE
Customer will bear all risk of loss, theft, destruction or requisition of or damage to any Item. Customer shall give Linga POS ® prompt notice of a casualty occurrence and shall thereafter place the Item in good repair, condition and working order; provided however, that if such Item is determined by Linga POS ® to be lost, stolen, destroyed or damaged beyond repair or is requisitioned or suffers a constructive total loss under an insurance policy carried hereunder, Customer shall pay Linga POS ® the “Casualty Value” of such Item which shall equal (a) any amounts due at the time of such payment and (b) the present value of the unpaid balance of payments due for the remainder of the Term computed at a discount rate of six percent (6%) per annum.
10 – TITLING
If requested by Linga POS ®, Customer shall cause an Item of Collateral subject to title registration laws to be titled as directed by Linga POS ®. Customer shall advise Linga POS ® promptly as to any necessary retitling. Customer shall cause all documents of title to be furnished to Linga POS ® within sixty (60) days of the date on any titling done by Customer.
11 – TAXES
Unless otherwise directed in writing by Linga POS ®, Customer shall pay when due and make filings with respect to all taxes, fees, including registrations, fines, penalties, and other governmental assessments with respect to the Collateral and shall pay all other governmental assessments (including gross receipt taxes but exclusive of Federal and State taxes based on Linga POS ®’s net income) related to amounts due hereunder, the Collateral or otherwise related hereto.
12 – LIMITED POWER OF ATTORNEY
Customer hereby irrevocably appoints Linga POS ® as Customer’s attorney-in-fact for the following limited purposes: (i) to sign and to file or record on Customer’s behalf and in Customer’s name any document Linga POS ® deems necessary to perfect or protect Linga POS ®’s interest in the Collateral or pursuant to the UCC, and (ii) to sign, endorse and/or negotiate, on Customer’s behalf and in Customer’s name, for Linga POS ®’s benefit, any instrument representing proceeds from any policy of insurance covering the Collateral.
13 – INSURANCE
Customer shall maintain and provide Linga POS ® evidence satisfactory to Linga POS ® of the maintenance of all risk insurance against loss of or damage to the Collateral for not less than the full replacement value thereof naming Linga POS ® as Loss Payee. Such insurance shall be in an amount and form and with companies approved by Linga POS ®, shall provide at least thirty (30) days advance written notice to Linga POS ® of material change or cancellation, shall provide full breach of warranty protection, if appropriate, and shall provide that the coverage is “primary”. In the event of an assignment of this agreement of which Customer receives notice, Customer shall cause such insurance to provide the same protection to the assignee as its interests may appear. The proceeds of such insurance, at the option of the Linga POS ®, shall be applied toward (a) the repair or replacement of the appropriate Item or Items of Collateral, (b) payment of the Casualty Value thereof, or (c) payment of any other accrued obligations of Customer hereunder. Any excess of such proceeds remaining shall belong to Customer. Customer shall maintain public liability and property damage coverage in such amounts and in such forms as Linga POS ® shall reasonably require. If Customer does not provide the insurance described in this section, Linga POS ® may, but will not be required to, buy such insurance and add the cost, including any customary charges or fees associated with the placement, maintenance or service of such insurance, to the installment payment amount due from Customer.
14 – LINGA POS ®’S PAYMENT
If Customer fails to perform any of its obligations hereunder, Linga POS ® may perform such obligation, and Customer shall (a) reimburse Linga POS ® the cost of such performance and related expenses and (b) pay Linga POS ® the late charge contemplated in paragraph 21 on the cost and expenses of such performance.
15 – INDEMNITY
Customer shall indemnify, defend and hold harmless Linga POS ® against any claim, action, liability or expense, including attorney’s fees and court costs, incurred by Linga POS ® related to this agreement. While it is anticipated that Linga POS ® shall have no liability for torts related to the Collateral, this indemnity covers tort claims including any strict liability claim, any claim under another theory related to latent or other defects and any patent, trademark or service mark infringement claim. This indemnity shall survive termination of this Agreement.
16 – DEFAULT
Any of the following constitutes an event of default hereunder: (a) Customer’s failure to pay any amount hereunder, within ten (10) business days of when due; (b) Customer’s default in performing any other obligation hereunder or under any other agreement between Customer and Linga POS ®; (c) Customer changes its name, state of incorporation, chief executive office and/or place of residence without providing Linga POS ® with 30 days written notice of such change; (d) death or judicial declaration of incompetency of Customer, if an individual or partner; (e) the filing by or against Customer of a petition under the Bankruptcy Code or under any insolvency law or law providing for the relief of Customers, including without limitation, a petition for reorganization, agreement or extension; (f) the making of an assignment of a substantial portion of its assets by Customer for the benefit of Linga POS ®, appointment of a receiver or trustee for Customer or for any of Customer’s assets, institution by or against Customer of any other type of insolvency proceeding or other proceeding contemplating settlement of claims against or winding up of the affairs of Customer, Customer’s cessation of active business affairs or the making by Customer of a transfer of a material portion of Customer’s assets or inventory not in the ordinary course of business; (g) the occurrence of an event described in (d), (e) or (f) as to a guarantor or other surety of Customer’s obligations hereunder; (h) any misrepresentation of a material fact in connection herewith by or on behalf of Customer; (i) Customer’s default under a lease or agreement providing financial accommodations with a third party or (j) Linga POS ® shall in good faith deem itself insecure as a result of a material adverse change in Customer’s financial condition or otherwise.
17 – REMEDIES
Upon the occurrence of an event of default Linga POS ® shall have the rights, options, duties and remedies of a secured party, and Customer shall have the rights and duties of a Customer, under the Uniform Commercial Code (regardless of whether such Code or a law similar thereto has been enacted in a jurisdiction wherein the rights or remedies are asserted). Without limiting the generality of the foregoing, Linga POS ® shall have the right to (a) at Linga POS ®’s option, declare immediately due and payable the entire amount of all of Customer’s obligations hereunder, without notice or demand to Customer and without setoff; (b) take possession of and, if deemed appropriate, render unusable any or all Items of Collateral, without demand or notice, wherever located, without any process of law and without liability for any damages occasioned by such taking of possession including damages to contents; (c) require Customer to assemble any or all Items of Collateral at a location in reasonable proximity to their designated location hereunder; (d) upon notice to Customer required by law, sell or otherwise dispose of any Items of Collateral, whether or not in Linga POS ®’s possession, in a commercially reasonable manner at public or private sale at any place designated in such notice and apply the net proceeds of such sale after deducting all costs of such sale, including, but not limited to, costs of transportation, repossession, storage, refurbishing, advertising and brokers fees, to the obligations of Customer hereunder with Customer remaining liable for any deficiency and with any excess being returned to Customer or (e) utilize any other remedy available under the Uniform Commercial Code or otherwise to Linga POS ®. All remedies are cumulative. Any sale may be adjourned by announcement at the time and place appointed for such sale without further published notice, and Linga POS ® may if permitted by law bid and become the purchaser at any such sale.
18 – LITIGATION EXPENSES
Customer shall pay Linga POS ® its costs and expenses, including repossession and attorney’s fees and court costs, incurred by Linga POS ® in enforcing this agreement. This obligation includes the payment of such amounts whether an action is filed and whether an action which is filed is dismissed.
19 – ASSIGNMENT
Without the prior written consent of Linga POS ®, Customer shall not sell, lease or create or allow any lien other than Linga POS ®’s security interest against an Item of Collateral or assign any of Customer’s obligations hereunder. Customer’s obligations are not assignable by operation of law. Consent to any of the foregoing applies only in the given instance. Linga POS ® may assign, pledge or otherwise transfer any of its rights hereunder without notice to Customer. If Customer is given notice of any such assignment, Customer shall acknowledge receipt thereof in writing and shall thereafter pay any amounts due hereunder as directed in the notice. The rights of an assignee to amounts due hereunder shall be free of any claim or defense Customer may have against Linga POS ®, and Customer agrees not to assert against an assignee any claim or defense which Customer may have against Linga POS ®. Subject to the foregoing, this agreement inures to the benefit of, and is binding upon, the heirs, legatees, personal representatives, successors and assigns of the parties.
20 – MARKINGS; PERSONAL PROPERTY
Customer shall mark the Collateral or its location as requested by Linga POS ® to indicate Linga POS ®’s security interest. Customer will provide Linga POS ® any real property waivers requested by Linga POS ® as to the real property where an Item of Collateral is or is to be located.
21 – LATE PAYMENT
In the event a payment is not made within 10 days when due hereunder the Customer promises to (a) pay a late charge to Linga POS ® or its assigns not later than one month thereafter, of up to 10% of the payment, or $25.00, whichever is greater and (b) pay Linga POS ® amounts paid to others in connection with collection of the amount. The late charge and/or the interest payments set forth in this contract shall apply only when permitted by law, and, if not permitted by law, the late charge and/or interest payments shall be calculated at the maximum rate permissible by law.
22 – COMPLIANCE WITH LAW
Customer and Linga POS ® intend to comply with all applicable laws. If it is determined that payments under this Equipment Financing Agreement result in an interest payment higher than that allowed by applicable law, then any excess interest collected will be applied to the repayment of principal and interest will be charged at the rate allowed by law.
23 – ADDITIONAL DOCUMENTS
Customer shall provide to Linga POS ® such financing statements and similar documents as Linga POS ® shall request. Customer authorizes Linga POS ® where permitted by law to make filings of such documents without Customer’s signature. Customer further shall furnish Linga POS ® (a) a fiscal year-end financial statement including balance sheet and profit and loss statement within one hundred twenty (120) days of the close of each fiscal year and (b) such other information and documents not specifically mentioned herein relative to this agreement as Linga POS ® may request. Customer shall reimburse Linga POS ® for all search and filing fees incurred by Linga POS ® related hereto.
24 – CROSS COLLATERAL/CROSS DEFAULT
All Collateral shall secure the payment and performance of all of Customer’s liabilities and obligations to Linga POS ® hereunder, under any other agreement between Customer and Linga POS ®, and under any of the loan documents relating hereto, including but not limited to all Equipment Finance Agreements, Lease Agreements, Interim Funding Agreements and all other documents (referred to herein collectively as the “Documents”). Linga POS ®’s security interest in the Collateral shall not be terminated until and unless all of Customer’s obligations to Linga POS ® under any of the Documents are fully paid and performed. The occurrence of an event of default under any other of the Documents shall be deemed to be an Event of Default hereunder and an Event of Default hereunder shall be deemed to be an event of default under the Documents.
25 – NOTICES
Notices shall be in writing and sufficient if mailed to the party involved, United States mail first class postage prepaid, at the Party’s address set forth above or at such other address as either party may provide in writing. Notice so given shall be effective when mailed. Customer shall promptly notify Linga POS ® of any change in Customer’s address.
26 – CHOICE OF LAW; WAIVER OF JURY TRIAL
This agreement shall be governed by the law of the state of Linga POS ®’s principal place of business listed above. Customer consents to jurisdiction for any action related to this agreement in any state or federal court located in the state of the principal place of business of Linga POS ® or of any subsequent holder of this agreement. Jurisdiction shall also be proper in any court in another jurisdiction selected by Linga POS ® or any subsequent holder of this agreement, which has jurisdiction over the parties. LINGA POS ® AND CUSTOMER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY ACTION INVOLVING THIS EQUIPMENT FINANCING AGREEMENT.
27 – GENERAL
This agreement constitutes the entire agreement of the parties as to the subject matter and shall not be amended, altered or changed except by a written agreement signed by the parties, except Linga POS ® may (1) change the Collateral Description to include or update the identification of the Collateral or (2) change the Collateral Location. Any waiver by Linga POS ® must be in writing, and forbearance shall not constitute a waiver. Whenever the context of this agreement requires, the neuter includes the masculine or feminine and the singular includes the plural. If there is more than one Customer named in this agreement, the liability of each shall be joint and several. The titles to the paragraphs of this agreement are solely for the convenience of the parties and are not an aid in the interpretation. Any provision declared invalid shall be deemed severable from the remaining provisions which shall remain in full force and effect. Time is of the essence of this agreement. The obligations of Customer shall survive the release of the security interest in the Collateral.
28 – CUSTOMER’S WARRANTIES
CUSTOMER CERTIFIES AND WARRANTS: (a) THE FINANCIAL AND OTHER INFORMATION WHICH CUSTOMER HAS SUBMITTED, OR WILL SUBMIT, TO LINGA POS ® IN CONNECTION WITH THIS AGREEMENT IS, OR SHALL BE AT TIME OF SUBMISSION, TRUE AND COMPLETE; (b) THE CUSTOMER’S EXACT LEGAL NAME, STATE OF INCORPORATION, LOCATION OF ITS CHIEF EXECUTIVE OFFICE AND/OR ITS PLACE OF RESIDENCE AS APPLICABLE, HAVE BEEN CORRECTLY INDEMNIFIED TO LINGA POS ®; (c) THIS AGREEMENT HAS BEEN DULY AUTHORIZED BY CUSTOMER AND UPON EXECUTION BY CUSTOMER SHALL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION, CONTRACT AND AGREEMENT OF CUSTOMER ENFORCEABLE AGAINST CUSTOMER IN ACCORDANCE WITH ITS TERMS; AND (d) EACH SHOWING PROVIDED BY CUSTOMER IN CONNECTION HEREWITH MAY BE FULLY RELIED UPON BY LINGA POS ® NOTWITHSTANDING ANY TECHNICAL DEFICIENCY IN ATTESTATION OR OTHERWISE. THE PERSON EXECUTING THIS AGREEMENT ON BEHALF OF CUSTOMER WARRANTS THAT PERSON’S DUE AUTHORITY TO DO SO. CUSTOMER FURTHER WARRANTS THAT EACH ITEM OF COLLATERAL SHALL AT THE TIME LINGA POS ® FUNDS THE TOTAL ADVANCE BE OWNED BY CUSTOMER FREE AND CLEAR OF LIENS AND ENCUMBRANCES AND BE IN GOOD CONDITION AND WORKING ORDER.
29 – SECURITY INTEREST
TO SECURE CUSTOMER’S PAYMENT AND PERFORMANCE OBLIGATION TO LINGA POS ®, CUSTOMER GRANTS LINGA POS ® A SECURITY INTEREST IN (a) ALL ACCOUNTS, CHATTEL PAPER, DOCUMENTS, EQUIPMENT, GENERAL INTANGIBLES, AND INVENTORY, NOT LIMITED TO THE EQUIPMENT LEASED OR FINANCED, AS THOSE TERMS ARE DEFINED IN ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE (the “UCC”), NOW OR HEREAFTER OWNED OR AQUIRED BY CUSTOMER; AND (b) ALL PROCEEDS, AS THAT TERM DEFINED IN ARTICLE 9 OF THE UCC (a AND b COLLECTIVELY, THE “COLLATERAL”).
CUSTOMER AND LINGA POS ® EACH ACKNOWLEDGE AND AGREE THAT ANY SECURITY INTEREST GRANTED TO LINGA POS ®, UPON EXECUTION OF THIS AGREEMENT, WILL SECURE THE OBLIGATION UNTIL FULLY SATISFIED.
30 – NEGATIVE PLEDGE
CUSTOMER AND GUARANTOR EACH AGREES NOT TO CREATE, INCUR, ASSUME, OR PERMIT TO EXIST, DIRECTLY OR INDIRECTLY, ANY LIEN ON OR WITH RESPECT TO ANY OF THE COLLATERAL, AS APPLICABLE.
31 – REMEDIES
UPON ANY EVENT OF DEFAULT, LINGA POS ® MAY PURSUE ANY REMEDY AVAILABLE BY LAW (INCLUDING THOSE AVAILABLE UNDER THE PROVISIONS OF THE UCC), OR IN EQUITY TO COLLECT, ENFORCE, OR SATISFY ANY OBLIGATION THEN OWING, WHETHER BY ACCELERATION OR OTHERWISE.
This Agreement is effective only upon execution by an authorized officer of Linga POS ® following Customer’s execution hereof. Customer hereby authorizes Linga POS ® to disburse the Total Advance as reflected on the Pay Proceeds Direction attached to each Invoice.
Refund Policy: All amounts paid by Customer under this Agreement are non-refundable without Linga POS ®’s prior written consent. See Linga POS ®’s Refund & Return Policy
The parties have executed this Sales Terms and Conditions Agreement and by doing so agree to all the terms.
Linga POS ® Customer
Signature: ___________ Signature: ___________
Print name: __________ Print name: __________
Date: _______________ Date: _______________
In Consideration of Linga POS ® extending future credit under this Agreement to the Customer, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Guarantor, personally guarantees the prompt, full and complete performance of any and all duties, obligations, and indebtedness, including but not limited to late payment fees, indemnification amounts, card member disputed charges, ACH charges and any other amounts incurred under this Agreement (the “Debt”) due to Linga POS ® by the Customer, under the terms of this Agreement.
Print name: ___________