SCHEDULE A – Purchase Summary, on the following terms and conditions.
1. Delivery shall be F.O.B. TapSnap’s U.S. or Canadian warehouse, and is subject to and contingent upon strikes, labor difficulties, fire, storm delay or defaults of common carriers, failure or curtailment in TapSnap’s usual source of supply, government decrees or orders, or any other delays beyond TapSnap’s reasonable control, and TapSnap shall not be liable for any loss or damage arising therefrom. If TapSnap cannot fulfill the order subject to the terms of this Agreement, the purchase price will be refunded in full. Title to the product and/or goods shall not pass to the Buyer until total due is received in full. Products and/or goods purchased are for a business purpose.
2. As described in SCHEDULE B – Warranty Agreement, TapSnap will provide a warranty on equipment purchased by Buyer from TapSnap. The obligation with respect to such equipment shall be limited to replacement F.O.B. TapSnap warehouse, and in no event shall TapSnap be liable for consequential or special damages, for transportation in connection with such equipment or parts. This warranty is expressly made in lieu of all other warranties expressed or implied, including the warranties of merchantability and fitness.
3. TapSnap will not be liable for any failure or delay in performance due in whole or in part to any cause beyond TapSnap’s control, or subsequent to delivery from TapSnap to Buyer.
4. In no event will TapSnap be liable for any damages, whether indirect, special, or consequential or otherwise arising out of this Agreement or the use of any equipment, programs, documentation and services pursuant to this Agreement.
5. The Buyer is responsible for providing all facilities, equipment and labor necessary for the installation and operation of the equipment, including operational space, electrical power and wireless Internet connection.
6. Telephone and email technical support is available during business hours at no additional cost. Emergency after hours support is available is at a rate of $50/incident thereafter. All technical support will be limited to products purchased directly from TapSnap. Price for after hours support is subject to change with 30 days notice.
7. Any intellectual property, marketing materials and operational information provided by TapSnap remain the property of TapSnap and are licensed to the Buyer for its sole use, for the limited purpose and within the context of operating the equipment or services described in SCHEDULE A – Purchase Summary, and may not be used outside the scope of this license.
8. The components to be supplied by TapSnap pursuant to this Agreement do not infringe upon any trademark, copyright, patent, trade secret or other intellectual property right of any third party. Buyer represents and warrants that it will not use TapSnap components in any fashion, method or combination with other products which infringes or may infringe upon a trademark, copyright, patent, trade secret or other intellectual property right of TapSnap or any third-party. Buyer, at its cost, will indemnify, defend and hold TapSnap harmless from any expenses, damages and costs, including attorney’s fees, arising from or incurred as a result of any claim or contention by a third party that Buyer’s use or application of the components manufactured by TapSnap has caused injury or damages by way of infringement or in any other way upon such third party.
9. Buyer understands and acknowledges that there is a degree of risk in any business venture, and that their individual success as an owner/operator of a TapSnap photo booth will be determined by many factors, including but not limited to their business acumen, individual effort, business contacts, and relevant business experience. Seller does not warrant or represent that any profits or specific amount of revenue will be generated from the purchase and operation of TapSnap photo booths.
10. The relationship between TapSnap and Buyer is that of supplier and customer. Buyer will operate and market their photo booth under their own distinct brand, and are not authorized to use the TapSnap name and/or logos, TapSnap LUNA name and/or logos, SnapBack name and/or logos, or any variation thereof in any marketing materials or in the promotion of their business or services whatsoever.
11. Buyer understands and acknowledges that although TapSnap may offer assistance with graphic design or website design, unless otherwise agreed to in writing, Buyer is ultimately responsible for creating their own brochures, event graphics, website and logo.
12. This Agreement is intended by the parties as a complete and final expression of the entire agreement between the parties and as a complete and exclusive statement of its terms. Buyer agrees that it is not relying upon any verbal or written representation whatsoever, except as expressly set forth in this Agreement. This Agreement can only be modified in writing, signed by the parties, or their duly authorized agents.
13. Buyer understands and acknowledges that with 60 days notice to Buyer, monthly or annual software license fees may be increased by a maximum of 10% per year.
14. Any dispute under this Agreement shall be settled by arbitration before a single arbitrator selected by the parties, using rules and procedures of the American Arbitration Association. Judgment on the award of the arbitrator may be entered in any Court of competent jurisdiction. Interpretation of this Agreement shall be determined by the laws of British Columbia. Exclusive venue for the resolution of disputes shall be Vancouver, British Columbia. Should Buyer file a lawsuit in an effort to avoid or circumvent arbitration hereunder, Buyer shall be responsible for all attorneys’ fees and expenses incurred by TapSnap in obtaining a dismissal, stay, remand, or transfer of that lawsuit by any court of competent jurisdiction.