PAR US Rental Agreement V2

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HARDWARE AS A RENTAL PROGRAM

FRANCHISEE PARTICIPATION AGREEMENT

This HARDWARE AS A RENTAL PROGRAM FRANCHISEE PARTICIPATION AGREEMENT (“Agreement”), between ParTech, Inc. (“ParTech”) and the applicable Subway® Franchisee (“Franchisee”) shall be effective as of the date the Franchisee clicks “I AGREE” within the Shopify portal and represents Franchisee’s electronic consent and acceptance to be bound by the: (a) Equipment Rental Terms and Conditions attached hereto as Schedule A; (b) the Equipment Services Terms and Conditions attached hereto as Schedule B; and (c) the additional terms set forth below.  Except as otherwise set forth herein, this Agreement is non-cancellable during the Initial Term and any applicable renewal term of this Agreement.

Pursuant to this Agreement (including Schedule A and Schedule B hereto), ParTech agrees to provide certain point of sale equipment and related services as more fully described herein all as part of a Hardware as a Rental Program (“HaaR Program”).  As used herein, the term “Equipment” shall mean the equipment set forth in the package(s) selected by Franchisee on the Shopify portal.  As used herein, the term “Services” shall mean the Advance Exchange Services and On-Site Remedial Maintenance Services for the Equipment set forth in the package(s) selected by Franchisee on the Shopify portal and further defined in Schedule B.

Franchisee hereby warrants and represents (i) its electronic consent and acceptance during order placement within Shopify binds Franchisee to the terms of this Agreement, (ii) that Franchisee shall pay all amounts owed under this Agreement without the necessity of a separate purchase order, and (iii) Franchisee will not contest payment of any amounts owed under this Agreement due to the fact that no purchase order was issued. 

Initial Term. The initial term of this Agreement will commence on the date of the installation of the Equipment and continue for a period of four (4) years (the “Initial Term”).

Monthly Payments.  Franchisee agrees that Franchisee will pay one monthly payment as set forth below,  which includes the payment for the rental of the Equipment (the “Equipment Rental Payment” as defined in Schedule A) and the payment for the Services (the “Equipment Services Payment” as defined in Schedule B), (“Monthly Payment”), plus any taxes (property taxes will be billed on an annual basis) and any applicable administrative fees (the “Total Monthly Payment”) by selecting the applicable package below on the Shopify portal.

Product Number

Description

Description

Monthly

Payment

SW-0000B-ES8-GA

PAR POS 8500 Package

SubwayPOS Base Terminal Package w/Integrated Biometrics; AE Service w/EverServ 8000 series terminal

$ 55.96

SW-0000B-ES8M-GA

PAR POS 8500 Package + MSR -

SubwayPOS Base Terminal Package w/Integrated Biometrics; AE Service w/EverServ 8000 series terminal w/MSR

$ 56.88

SW-0002B-ES8-GA

PAR POS 8500 Package+ Deep Drawer -

SubwayPOS Base Terminal Package w/Deep Cash Drawer and Integrated Biometrics; AE Service w/EverServ 8000 series terminal

$ 57.84

SW-0002B-ES8M-GA

PAR POS 8500 Package + MSR + Deep Cash Drawer

SubwayPOS Base Terminal Package w/Deep Cash Drawer and Integrated Biometrics; AE Service w/EverServ 8000 series terminal w/MSR

$ 58.76

SW-0100B-ES8-GA

PAR POS 8500 Package with Onsite Warranty Upgrade

SubwayPOS Base Terminal Package w/Integrated Biometrics; Onsite Service w/EverServ 8000 series terminal

$ 62.21

SW-0100B-ES8M-  GA

 

PAR POS 8500 Package with Onsite Warranty Upgrade + MSR

SubwayPOS Base Terminal Package w/Integrated Biometrics; Onsite Service w/EverServ 8000 series terminal w/MSR

$ 63.14

SW-0102B-ES8-GA

PAR POS 8500 Package with Onsite Warranty Upgrade + Deep Drawer –

SW POS Terminal Package w/Deep Cash Drawer w/Integrated Biometrics; Onsite Service w/EverServ 8000 Series Terminal

$ 64.09

 

SW-0102B-ES8M-GA

PAR POS 8500 Package with Onsite Warranty Upgrade + MSR+ Deep Drawer

SW POS Terminal Package w/Deep Cash Drawer w/Integrated Biometrics; Onsite Service w/EverServ 8000 Series Terminal w/MSR

$ 65.02

SW-9000B-ES8-GA

 

PAR POS 8500 Terminal Only -

Terminal Only Package for SubwayPOS w/Integrated Biometrics with AE w/EverServ 8000 series terminal

$ 46.85

SW-9001B-ES8-GA

 

PAR POS 8500 Terminal Only+ Onsite Warranty

Terminal Only Package for SubwayPOS w/Integrated Biometrics w/ Onsite w/EverServ 8000 series terminal

$ 53.11

SW-9002B-ES8-GA

 

PAR POS 8500 Terminal Only +MSR

Terminal Only Package for SubwayPOS w/Integrated Biometrics & MSR with AE w/EverServ 8000 series terminal

$ 47.78

SW-9003B-ES8-GA

PAR POS 8500 Terminal Only+ Onsite Warranty +MSR

Terminal Only Package for SubwayPOS w/Integrated Biometrics & MSR w/ Onsite w/EverServ 8000 series terminal

$ 54.03

 

Franchisee agrees to make the Total Monthly Payment each month during the Initial Term and any renewal term of this Agreement by the due date.  Franchisee understands and agrees that the Total Monthly Payment includes both the rental of the Equipment under Schedule A hereto and Franchisee’s purchase of certain services from ParTech under Schedule B hereto. 

Franchisee hereby acknowledges and agrees the most recent Debit Authorization Form (“Form’) on file with Doctor’s Associates LLC (f/k/a Doctor’s Associates Inc.) (“Franchisor”) also authorizes Franchisor to debit the Total Monthly Payment, from the bank account designated in the Form on a date determined by Franchisor. Franchisor will attempt a second debit in the same calendar month if there were insufficient funds on the first attempted debit of the Total Monthly Payment.  By accepting this Agreement, Franchisee consents to the foregoing, and further agrees that all terms of the Form apply to this authorization. Franchisee understands and agrees that Franchisee will be required to make separate payment arrangements with ParTech for any Total Monthly Payment not debited by Franchisor as described above.  If any amount payable to ParTech under this Agreement is past due, Franchisee agrees to pay a late charge equal to: (i) the greater of ten (10) cents for each dollar overdue or twenty-six dollars ($26.00); or (ii) the highest rate permissible by law, if less.

If there are any amounts owing to ParTech other than the Total Monthly Payment, Franchisee acknowledges and agrees that Franchisor shall not attempt any debits for any payments due ParTech unless and until ParTech informs Franchisor that Franchisee’s account with ParTech is current on all prior Total Monthly Payments. Franchisee understands and agrees that Franchisee will be required to make separate payment arrangements with ParTech for any Total Monthly Payments not debited by Franchisor as described above.

End of Term Options.  Approximately one-hundred eighty (180) days prior to the end of the Initial Term or any renewal term of this Agreement, ParTech will notify Franchisee of the then-current POS packages available under the HaaR Program (“Upgrade Equipment”) and any corresponding changes to the amounts owed under the Agreement if Franchisee decides to receive the Upgrade Equipment.  At the end of the Initial Term or any renewal term of this Agreement, Franchisee shall have the following options with respect to the Equipment:

(a) Return the POS Terminal only and either (i) receive Upgrade Equipment for the POS Terminal only and retain the remaining Equipment; or (ii) receive Upgrade Equipment for all the Equipment (“Upgrade Option”); or

(b) Continue to rent the Equipment pursuant to this Agreement on a month-to-month basis (“Renewal Option”) at the same Total Monthly Payment; or

(c) Return the POS Terminal only to ParTech and terminate this Agreement (“Termination Option”). 

At least thirty (30) days prior to the end of the Initial Term or any renewal term of this Agreement, Franchisee agrees to notify ParTech of whether Franchisee has selected the Upgrade Option, the Renewal Option or the Termination Option; provided, if Franchisee has not notified ParTech of Franchisee’s selected end of term option in the above time frame, Franchisee will continue to rent the Equipment pursuant to this Agreement on a month-to-month basis at the same Total Monthly Payment.  Franchisee’s obligations with respect to the Equipment if Franchisee selects the Upgrade Option, Renewal Option or Termination Option are described on Schedule A hereto.

Embedded Operating System.  If the Equipment contains an embedded operating system, the Microsoft End User License Agreement located at https://support.partech.com/terminals.php by searching for Microsoft EULA is incorporated into and made a part of this Agreement, and shall be applicable to Franchisee, and by using the Equipment Franchisee hereby accepts such license and the terms thereof.

Confidential Information.  Confidential Information (as defined below) may only be used or disclosed for the purpose of fulfilling obligations or exercising rights under this Agreement. ParTech Confidential Information may be shared by Franchisee with Doctor’s Associates LLC,  Franchisee World Headquarters, LLC (“FWH”), Independent Purchasing Cooperative, Inc. (“IPC”), or their respective officers, directors, employees, agents or contractors with a need to know such information to support that purpose. Confidential Information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure after termination of this Agreement and for as long as the information remains confidential.  For the purposes of this Agreement, “Confidential Information” means a party’s commercial, business and/or technical information, such as its business plans (including, its contemplated future business and prospects), operations, computer code, specifications, inventions, concepts, ideas, applications, know-how, discoveries, technology, intended use or sale of products, capabilities, systems, pricing, controls, standards, franchisees, suppliers and any other information that a party regards as confidential, proprietary or private in nature. Confidential Information includes all Confidential Information to which a party may become privy, whether in writing, oral, by visual observation, or any other form, even if not marked as confidential, restricted, proprietary or other similar designation.  Confidential Information shall not include information that (i) was in a party’s lawful possession prior to its receipt of the same from the other party and is not otherwise subject to non-disclosure or agreement of confidentiality; (ii) is now or becomes available to the public through no illegal or unauthorized act or omission on the part of  party or such party’s employees or agents; (iii) was received by a party without restriction from a third party who was lawfully in possession of such information and who was not in breach of any agreement or any confidential relationship, direct or indirect, with a party; or (iv) is or was independently developed by a party’s employee(s) to whom the other party’s Confidential Information was not divulged or available.

Intellectual Property Rights. All Intellectual Property Rights of either party hereto shall at all times be and remain the sole and exclusive property of such party, and neither this Agreement nor any sales order submitted by Franchisee (“Sales Order”) hereunder shall constitute a license to either party to use or display the Intellectual Property Rights of the other party.  For purposes of this Agreement, “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including moral rights and mask works, and all derivative works thereof; (ii) trademark, service mark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing). 

Intellectual Property Rights Indemnification.  ParTech will indemnify, defend, hold harmless from and against, and settle any claims against Franchisee that allege that any Equipment supplied under this Agreement infringes the intellectual property rights of a third party.  ParTech will rely on Franchisee’s prompt notification of the claim and cooperation with Franchisee’s defense.  ParTech may modify the Equipment so as to be non-infringing and materially equivalent, provide substitute Equipment similar in form, fit and function to the Equipment, or ParTech may procure a license for Franchisee to continue use of the Equipment.  Without limiting the indemnification obligations or any other rights or remedies of Franchisee, if these options are not available, ParTech may remove the applicable Equipment from the terms of this Agreement (which may result in a lower Total Monthly Payment owed pursuant to this Agreement or termination of this Agreement).  In no event shall ParTech have an obligation to defend, indemnify or hold Franchisee harmless to the extent such infringement claim is directly caused by: (i) the modification of the Equipment by Franchisee, or its respective employees, agents and/or subcontractors without the authorization of ParTech; or (ii) the use by Franchisee, or its respective employees, agents and/or subcontractors of the Equipment in conjunction with equipment or software not provided or approved by ParTech. THE FOREGOING, TOGETHER WITH PARTECH’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION STATES THE ENTIRE LIABILITY OF PARTECH TO FRANCHISEE CONCERNING WARRANTIES OF INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION OF INTELLECTUAL PROPERTY INFRINGEMENT, INCLUDING, BUT NOT LIMITED TO, PATENT, COPYRIGHT, TRADEMARK, TRADE DRESS AND TRADE SECRETS.

Other Indemnification Obligations.

     a)    By PAR. In addition to its Intellectual Property Rights Indemnification set forth above, ParTech agrees to defend, indemnify, and hold harmless Franchisee, its Affiliates, and all of their respective stockholders, members, managers, officers, directors, employees, and agents (collectively the “Franchisee Indemnitees”) of, from and against any and all third party claims, threats, allegations, suits, actions, costs (including taxes), liabilities, damages, awards, judgments, fees, and expenses of any kind (including reasonable attorneys’ fees), arising out of i) the ParTech Batch File (as such term is defined in the Hardware as a Rental (HaaR) Agreement between ParTech, Inc., Doctor’s Associates, Inc., and Independent Purchasing Cooperative, Inc., (the “HaaR Agreement”); ii) any act, omission,  negligence, fraud, or misconduct by ParTech, its Subcontractors (as such term is defined in the HaaR Agreement), and their respective Personnel (as such term is defined in the HaaR Agreement) relating to ParTech’s performance of its obligations under this Agreement, and the provision of the Services; iii) any breach of the terms of this Agreement including breach of warranty, product liability claims, or privacy compliance; and iv) any violation of applicable laws relating to ParTech’s performance of its obligations under this Agreement.

      b)   By Franchisee., Franchisee agrees to defend, indemnify, and hold harmless ParTech, its Affiliates, and all of their respective stockholders, members, managers, officers, directors, employees, and agents (collectively the “ParTech Indemnitees”) of, from and against any and all third party claims, threats, allegations, suits, actions, costs (including taxes), liabilities, damages, awards, judgments, fees, and expenses of any kind (including reasonable attorneys’ fees) arising out of i) any act, omission, negligence, fraud, or misconduct by Franchisee relating to Franchisee’s performance of its obligations under this Agreement; ii) any breach of the terms of this Agreement; and iii) any violation of applicable  laws relating to Franchisee’s performance of its obligations under this Agreement. 

Export Laws.  Franchisee acknowledges that the sale of the Equipment may be subject to export and import control laws, restrictions and regulations imposed by the United States or other jurisdictions.  Franchisee shall comply with all applicable export laws, restrictions and regulations of the United States, the European Union or other foreign agency or authority, and Franchisee agrees not to import, export or re-export, or allow the import, export, or re-export of, any Equipment in violation of any such laws, restrictions, or regulations.  Franchisee certifies to ParTech that Franchisee is not on any U.S. government restricted parties list or similar list, and Franchisee shall be solely responsible for obtaining any and all necessary licenses in connection with the import, export or re-export of the Equipment.

Notice. Any notice to be given under this Agreement will be in writing and addressed to the party at the address stated in the front of the Sales Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by facsimile or electronic mail, when the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five (5) days of deposit in the mail.

Severability. If any court of competent jurisdiction holds that any provision of this Agreement is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired, and all remaining terms hereof shall remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.

Prior Dealings. No course of dealing or failure by either party to strictly enforce any term, right or condition of this Agreement will be construed as a waiver thereof. Any purported waiver by a party will only be enforceable if in writing signed by such party and will not be deemed to waive any later breach of the same or any other term, right or condition. This Agreement may not be amended except by written agreement of Franchisee and ParTech expressly referring thereto.

Law/Forum/Waiver of Jury Trial. This Agreement and any claim related to this Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles. ParTech and Franchisee hereby irrevocably submit to the exclusive personal and subject matter jurisdiction of the state and federal courts located within the state in which the Franchisee is located. Both ParTech and Franchisee waive any right to a jury trial. Notwithstanding the foregoing, either party may seek injunctive relief from any court of competent jurisdiction. In any action or proceeding arising out of this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

SCHEDULE A

EQUIPMENT RENTAL TERMS AND CONDITIONS

1.   Rental of Equipment. Subject to the terms of these Equipment Rental Terms and Conditions (“Equipment Rental Schedule”), ParTech agrees to rent the Equipment to Franchisee during the Initial Term and the renewal term of the Agreement. ParTech and Franchisee agree that the terms of the Agreement are incorporated herein.

2.   Rental Payment for Equipment. A portion of the Total Monthly Payment owed under the Agreement is allocable to the rental of the Equipment under this Equipment Rental Schedule (the “Equipment Rental Payment”).

3.   Equipment Use. Franchisee agrees that it will keep the Equipment in good working order, use it for business purposes only, and not modify it without ParTech’s consent.

4.   End of Term Options.

          a)   Upgrade Option: If at the end of the Initial Term or the renewal term of the Agreement Franchisee elects the Upgrade Option, ParTech will deliver the Upgrade Equipment to Franchisee and, for a flat fee of $48.00 (which will be billed to Franchisee directly by ParTech), request a pick-up through its authorized freight carrier of the POS Terminal only that is included in the Equipment. Franchisee will be responsible, at Franchisee’s own expense, for deinstalling the POS Terminal, inspecting it and properly packaging it for return to ParTech within five (5) business days of Franchisee’s receipt of the Upgrade Equipment. In the event a freight carrier fails to arrive within five (5) days of Franchisee’s receipt of the Upgrade Equipment, the Franchisee shall call the FWH helpdesk to report such failure.  If Franchisee fails to provide the to-be-returned POS Terminal after two (2) pick-up attempts are arranged by ParTech, the return of such POS Terminal will thereafter be arranged by Franchisee, at Franchisee’s expense.  The POS Terminal shall be in the same condition as when delivered to Franchisee, ordinary wear and tear excepted.  ParTech may request that Franchisee enter into a new Hardware as a Rental Franchisee Participation Agreement in connection with providing any Upgrade Equipment to Franchisee, so long as the new agreements have been mutually agreed upon between IPC, DAI, and ParTech.

          b)   Renewal Option: If, at the end of the Initial Term or the renewal term of the Agreement, Franchisee elects the Renewal Option, Franchisee does not need to do anything and the Agreement will renew on a month-to-month basis. Franchisee agrees and understands that if Franchisee elects the Renewal Option the Equipment will no longer be eligible for the services provided by ParTech described on Schedule B to the Agreement.

          c)   Termination Option: If at the end of the Initial Term or renewal term of the Agreement Franchisee elects the Termination Option, ParTech will, for a flat fee of $48.00 (which will be billed to Franchisee directly by ParTech), request a pick-up through its authorized freight carrier of the POS Terminal only that is included in the Equipment. Franchisee will be responsible, at Franchisee’s own expense, for deinstalling the POS Terminal, inspecting it and properly packaging it for return to ParTech within five (5) business days of the end of the Initial Term or renewal term of the Agreement, as applicable (“Required Return Date”). The  POS Terminal shall be in the same condition as when delivered to Franchisee, ordinary wear and tear excepted. In the event a freight carrier fails to arrive by the Required Return Date, Franchisee shall call the FWH helpdesk to report such failure.  If Franchisee fails to provide the to-be-returned POS Terminal after two (2) pick-up attempts are arranged by ParTech, Franchisee will be deemed to have elected the Renewal Option described in 4(b) above.

5.   Loss or Damage. Franchisee is responsible for any damage to or loss of the Equipment while such Equipment is in Franchisee’s possession except to the extent caused by ParTech or its contractors. Except to the extent caused by ParTech or its contractors, no such loss or damage will relieve Franchisee from Franchisee’s payment obligations under this Equipment Rental Schedule. ParTech is not responsible for, and Franchisee will indemnify ParTech against, any claims, losses or damages, including attorney fees, in any way relating to the Equipment or data stored on it. In no event will ParTech be liable for any consequential or indirect damages.

6.   Insurance. Franchisee agrees to maintain commercial general liability insurance and to keep the Equipment fully insured against loss at its replacement cost, with ParTech named as loss payee. Any insurance proceeds received by ParTech relating to the Equipment will be applied, to the extent of such proceeds, to repair or replace the Equipment.

7.   Taxes. ParTech owns the Equipment. Franchisee agrees to pay when due, either directly or by reimbursing ParTech, all taxes and fees relating to the rental of the Equipment. Sales or use tax due upfront will be payable over the term with a finance charge.

8.   Default/Remedies. If an amount owed by Franchisee under this Equipment Rental Schedule becomes more than thirty (30) days past due, or if Franchisee otherwise breaches this Equipment Rental Schedule, Franchisee will be in default, and ParTech may require that Franchisee return the Equipment to ParTech at Franchisee’s expense and pay ParTech: a) all past due Equipment Rental Payments, and b) all remaining Equipment Rental Payments, for the unexpired term, plus ParTech’s booked residual in the Equipment, discounted at 3% per annum; and ParTech may repossess the Equipment subject to applicable law and use all other legal remedies available to ParTech in full compliance with applicable law. Franchisee agrees to pay ParTech 1.5% interest per month on all past due amounts.

9.   Assignment. Except in connection with a Location Transfer/Location Closure or a Transfer of Ownership of Franchisee Location (all as set forth in Section 10), Franchisee may not sell, assign or sublease the Equipment or assign its obligations under this Equipment Rental Schedule without ParTech’s prior written consent. ParTech may sell or assign this Equipment Rental Schedule and/or ParTech’s rights in the Equipment, in whole or in part, to a third party without notice to Franchisee. Franchisee agrees that if ParTech does so, the assignee will have ParTech’s rights but will not: (i) be subject to any claim, defense, or set-off Franchisee may have against ParTech or any other third party; and (ii) assume any of ParTech’s obligations under this Equipment Rental Schedule or the Agreement, which obligations will remain fully with ParTech.

10.  Location Transfer/Location Closure Equipment Returns. Franchisee must notify ParTech at least thirty (30) days prior to the date of the transfer/closure of the location where the Equipment is located and shall provide ParTech with any required and reasonably requested information. In the case of a transfer of the location, Franchisee may elect to (a) have this Agreement assumed by the new owner, in which case, Franchisee must be then-current on all payment obligations under this Equipment Rental Schedule and ParTech will provide Franchisee with a Transfer and Assumption Agreement (attached hereto as Exhibit A) for execution in which the new owner shall assume the obligations of Franchisee under this Agreement; or (b) Franchisee can return the POS Terminal to ParTech as set forth herein and, following such return, the Agreement will terminate. If (c) Franchisee is transferring ownership of the location where the Equipment is located and elects to return the POS Terminal to ParTech ; or (d) Franchisee is closing the location where the Equipment is located, Franchisee will return the POS Terminal to ParTech and, in addition to a flat fee of $48.00 for shipping the POS Terminal back to ParTech, Franchisee shall be invoiced for a Termination Fee in an amount in accordance with the table below:

Year of HaaR Program

Termination Fee

Within the first year of the Initial Term

$500

Within the second year of the Initial Term

$400

Within the third year of the Initial Term

$300

Within the fourth year of the Initial Term

$150

 

11.  Franchisee Location Relocation. Franchisee may not permanently relocate Equipment unless such relocation is expressly communicated to ParTech in writing, as ParTech’s ability to provide the services described on Schedule B will be impacted.  In the event Franchisee’s store is relocated, Franchisee will notify ParTech within thirty (30) business days of the relocation by calling 1-800-448-6505, Product Deployment Services, identifying itself as a Subway Franchisee, providing ParTech with updated store location information and any other required and reasonably requested information.

SCHEDULE B

EQUIPMENT SERVICES TERMS & CONDITIONS

1.   Purchase or Services. Subject to the terms of these Equipment Services Terms and Conditions (“Equipment Services Schedule”), Franchisee agrees to purchase, and ParTech agrees to provide to Franchisee, selected Installation Services (if applicable), Advanced Exchange Services and On-Site Remedial Maintenance Services (collectively, “Services”) described in this Equipment Services Schedule during the Initial Term of the Agreement. ParTech and Franchisee agree that the terms of the Agreement are incorporated herein.  The Services are being sold by ParTech to the exclusion of any pre-printed or contrary terms of any purchase order (or similar document) and supersedes and cancels any prior discussions, understandings, or representations between ParTech and Franchisee.

2.   Services Payment for Equipment. A portion of the Total Monthly Payment owed under the Agreement is allocable to the Services provided by ParTech relating to the Equipment under this Equipment Services Schedule (the “Equipment Services Payment”).

3.   Advance Exchange Service.

      a.   Advance Exchange Service. ParTech will provide Advance Exchange Service (“AE Services”) with respect to the Equipment identified in the Sales Order in the Franchisee Participation Agreement (“AE Equipment”) as follows: ParTech will provide 24/7 support, tracking and dispatch services and fully operational replacement equipment for the AE Equipment, in accordance with this Section 3. AE Services includes parts, labor, and materials to maintain, repair and replace the AE Equipment under normal use and service, and is provided for the AE Equipment during the Initial Term of the Agreement, except for New Years’ Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Friday after Thanksgiving Day and Christmas Day (“ParTech Holidays”).

      b.   Request for AE Services. To request AE Services and fully operational replacement AE Equipment, Franchisee must submit a request in accordance with Section 4(d) below and, in addition to the information required to be provided to ParTech pursuant to Section 4(d), Franchisee must provide ParTech with: (i) all configuration requirements for the replacement AE Equipment, (ii) the failed AE Equipment’s model and serial number, and (iii) the address that the replacement AE Equipment is to be shipped (“ship-to address”).

      c.   Shipment of Replacement AE Equipment. ParTech will ship replacement AE Equipment to Franchisee’s ship-to address, freight prepaid in accordance with the following table:

AE Equipment

AE Request (Eastern Standard Time)

AE Shipment

Arrival

At Site

Service Level Target

Terminal

Cash Drawer

Receipt Printer

 

8AM—6PM Mon. – Fri.

 

Same Day

 

 

 

 

 

Next Business Day (Mon. – Fri.) AM delivery (local time).  Saturday delivery where available.

 

AE Equipment will arrive at site, within stated time period 90% of the time.

Terminal

Cash Drawer

Receipt Printer

 

Prior to 11:00AM – Sat.

Same Day

Monday AM delivery (local time). 

AE Equipment will arrive at site, within stated time period 90% of the time.

 

Replacement AE Equipment will be shipped by a premium air freight carrier when ParTech determines such method of shipment is appropriate. Franchisee must acknowledge receipt of replacement AE Equipment by signing the freight carrier air bill or similar shipping/delivery documentation accompanying the replacement Equipment. Once received by Franchisee all replacement AE Equipment shall be considered part of the Equipment for the purposes of the Agreement.

      d.   Return of Defective AE Equipment. ParTech will provide Franchisee with a pre-paid shipping label and packaging instructions for the return of the defective AE Equipment to ParTech. Franchisee will return the defective AE Equipment to ParTech using the corresponding replacement Equipment packaging (ParTech will ship replacement Equipment in reusable packaging). Franchisee should be prepared to return ship the defective AE Equipment within five (5) business days of Franchisee’s receipt of the replacement AE Equipment. In the event a freight carrier fails to arrive within five (5) days of receipt of replacement AE Equipment, the Franchisee shall call the FWH helpdesk to report such failure.  If Franchisee fails to provide the defective AE Equipment after two (2) pickup attempts arranged by ParTech, the return of the defective AE Equipment will thereafter be arranged by Franchisee, at Franchisee’s expense.  In the event Franchisee fails to return the defective AE Equipment to ParTech within thirty (30) days of the replacement AE Equipment’s arrival at Franchisee’s location, Franchisee will be responsible for purchasing the replacement AE Equipment plus a 15% restocking fee.  If Franchisee fails to pay the invoice for the replacement AE Equipment plus the 15% restocking fee in accordance with the payment terms included on such invoice, then the warranty on the replacement AE Equipment will be void until Franchisee’s account becomes current.  ParTech reserves the right to charge Franchisee ParTech’s then-current time-and-materials rates for AE Services provided to Franchisee when ParTech determines that the root cause of the defective AE Equipment was as a result of events or circumstances described in Section 4(b)(ii)) below.  If ParTech determines that more than 10% of the AE Equipment returned by Franchisee in any consecutive three (3) month period was not defective, Franchisee will be invoiced diagnostic and handling fees for each subsequent defective AE Equipment returned where no defect is found.  If Franchisee returns Equipment other than the defective AE Equipment replaced by ParTech, then ParTech shall contact Franchisee and request approval to either return or dispose of the incorrectly returned Equipment.  If ParTech has to return or dispose of incorrectly returned Equipment, Franchisee shall be charged the actual costs incurred by ParTech for the return or disposal of such Equipment.

      e.   Franchisee Responsibilities. Franchisee will inform ParTech of all configuration requirements for replacement Equipment prior to commencement of and at the time of each request for AE Service through the FWH helpdesk.  Additionally, at the time of each request for AE Service, Franchisee will include the failed Equipment’s model and serial number, ship-to names and ship-to address in all requests for AE Service. Upon receipt of the AE Equipment, Franchisee agrees to (i) acknowledge receipt of the replacement AE Equipment by signing the freight carrier air bill or similar shipping/delivery documentation at time of delivery; (ii) installing the replacement AE Equipment in accordance with the instructions provided by ParTech; (iii) use the box and packing material provided with the replacement AE Equipment to pack up the malfunctioning AE Equipment and make the AE Equipment available for pickup; and (iv) prepare the failed unit for shipment as set forth in Section d above.

4.   On-Site Remedial Maintenance Services.

      a.   Uplift from AE Service Franchisee will have the option of selecting an up-lift from AE Services to On-Site Remedial Maintenance Services (“RMS”) for the ParTech point of sale terminal (“POS Terminal”) only identified in the Sales Order in the Franchisee Participation Agreement. If Franchisee chooses the up-lift to RMS, RMS will be provided during the Initial Term of the Agreement. If Franchisee does not select the up-lift upon rental of the Terminal, Franchisee may not select this option later.

      b.   On-Site Remedial Maintenance Services. ParTech will provide RMS through ParTech’s field service representatives during the Principal Period of Maintenance (“PPM”) of 9:00 a.m. – 6:00 p.m. local time, seven (7) days a week, except for ParTech Holidays, for Franchisee locations within 150 miles from a field service representative. For Franchisee locations located more than 150 miles from a field service representative, the AE Services set forth in Section 3(a) shall apply.  ParTech will provide RMS as required during the PPM, following a RMS Request from the FWH’s help desk that a Terminal is inoperative or malfunctioning.  The field service representative will notify Franchisee, by telephone, of the approximate arrival date and time, prior to arriving at Franchisee’s location to perform RMS.  RMS will consist of the repair or replacement of parts deemed necessary by ParTech to return the Terminal to good operating condition.  All parts will be furnished on an exchange basis and replaced parts shall become ParTech’s property. When ParTech has completed RMS and the Terminal is functioning, a management representative of Franchisee shall sign the incident report presented by the field service representative signifying that the RMS have been completed and that the Terminal is functioning.

      c.   Request for RMS. ParTech will provide a toll-free number, email address or electronic interface, and the availability of support personnel 24 hours a day, seven (7) days a week, for the FWH help desk’s non-exclusive use to notify ParTech of all service requests.  RMS will be provided during the PPMs following a determination by FWH’s Help Desk that the reported problem requires RMS.  RMS will be required when reasonable efforts by FWH or PAR’s Help Desk to repair the problem remotely have proven ineffective and the problem’s cause is believed to be related to the Terminal.

      d.   Response Time. Upon confirmation of an RMS request for Franchisee, ParTech will use commercially reasonable efforts to: (i) respond on-site at Franchisee’s location within 4 Contract Hours if the RMS Request is received within the applicable PPM or by the next contract day if the RMS Request is received outside the applicable PPM; and (ii) restore the Terminal within 12 Contract Hours from time of dispatch.  For purposes of this Section 4(d), “Contract Hours” means all available time periods during the applicable PPM, but exclusive of ParTech Holidays. Up to one (1) additional hour will be allowed at the end of PPM at no additional charge for RMS work begun during the PPM.  If RMS is not completed during this additional one (1) hour or if ParTech has to return the next day to perform RMS due to the field service representative not having prompt and safe access to the Terminal, then ParTech will, upon Franchisee’s request, continue to complete the RMS at ParTech’s time and material rate. 

      e.   Restrictions. ParTech reserves the right to refuse to provide RMS for the Terminal, when, in ParTech’s judgment, conditions at Franchisee’s location present a hazard to the safety or health of ParTech’s field service representatives.  RMS as provided under this Equipment Services Schedule does not ensure uninterrupted operation of the Terminal.  Maintenance materials, tools, documentation, replaced parts, diagnostic and test equipment provided by ParTech shall remain ParTech’s property.  If ParTech sends a field service representative to Franchisee’s location and the serial number on the Terminal does not match the serial number of the Terminal ordered with an on-site uplift for Franchisee’s location, then the RMS will be performed at ParTech’s current time & material rate.  Franchisee will be charged separately for electrical work external to the Terminal or any permits that may be required for such electrical work.

      f.   Franchisee Responsibilities. Franchisee will provide ParTech’s field service representative with: (i) free and immediate access to the Terminal requiring RMS upon arrival at Franchisee’s location; (ii) operating supplies, consumables, and such items as Franchisee would use during normal operation of the Terminal, if requested, and (iii) working space, heat, light, ventilation, phone access, electrical power and outlets for use in performing the RMS. In addition, Franchisee will maintain a procedure external to the Terminal for reconstruction of lost files, data or programs, and for the security of Franchisee’s proprietary or confidential information.

5.   General Terms of Services.

      a.   New or Equivalent. The Equipment, replacement Equipment, and any parts ParTech furnishes may not be newly manufactured and may contain used components; the foregoing does not impact the Equipment Warranty. Equipment that has been replaced (or parts thereof) shall be ParTech property.

      b.   Limited Warranty; Limitation of Liability. (i) ParTech warrants to Franchisee that (A) (1) for the Initial Term of the Agreement with respect to any AE Equipment (the “Advance Exchange Warranty Period”); (2) for a period of one (1) year from date of shipment of Equipment that is not AE Equipment (the “Depot Warranty Period”) and (3) for a period of sixty (60) days from the date of installation of the POS Terminal (the “Out-of-Box Failure Warranty”), (collectively with the Advance Exchange Warranty Period and Depot Warranty Period, the “Equipment Warranty Period”) the Equipment will be free of defects in materials and workmanship normal use and service (the “Equipment Warranty”), and (B) for a period of 30 days from the completion of installation (the “Installation Warranty Period”), the installation was performed in accordance with ParTech’s then current installation procedures and will be free from defect in workmanship normal use and service (the “Installation Warranty”). With respect to the Out-of-Box Failure Warranty, ParTech will ship a new replacement ParTech Terminal in accordance with the table below:

OBF Request (Eastern Standard Time)

OBF Shipment

OBF Arrival at Site

8AM—4PM Mon. – Fri., excluding local holidays.

 

Same Day

Next Business Day (Mon. – Fri.) AM delivery (local time).  Saturday delivery where available.

 

After 4PM on Fri., excluding local holidays, or on Sat. & Sun.

Monday

Tuesday AM delivery (local time).

 

 

EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5(B) , PARTECH DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

EXCEPT WITH RESPECT TO A PARTY’S WILFUL MISCONDUCT, FRAUD, GROSS NEGLIGENCE,  INTELLECTUAL PROPERTY INFRINGEMENT, INDEMNIFICATION OBLIGATIONS, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, LOST REVENUES OR PROFITS, REGARDLESS OF WHETHER SUCH PERSON OR ENTITY WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING AND EXCEPT WITH RESPECT TO A PARTY’S WILFUL MISCONDUCT, FRAUD, GROSS NEGLIGENCE, INTELLECTUAL PROPERTY INFRINGEMENT, INDEMNIFICATION OBLIGATIONS, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, A PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY  WILL BE LIMITED TO $1,000,000.

Without limiting the foregoing, (A) the Equipment Warranty shall be rendered null and void and Franchisee shall be charged additional fees if: (1) the Equipment (including AE Equipment) is placed in an operating environment that is not in compliance with the requirements specified by ParTech or the original equipment manufacturer, including, but not limited to, the failure to provide adequate electrical power (ParTech requires the Terminal to be powered from an isolated, dedicated grounded outlet that is not shared with any other piece of equipment), air conditioning or humidity control; (2) the Equipment (including the AE Equipment) or any component part is improperly installed (if the installation is not installed by ParTech or a certified ParTech installation subcontractor), repaired, maintained or otherwise serviced by a person other than ParTech or a certified Partech installation subcontractor or authorized representative; (3) the Equipment (including the AE Equipment) was not used under normal operating conditions or in accordance with any labels, instructions or specifications of ParTech or the original equipment manufacturer; (4) the Equipment (including the AE Equipment) is used with third-party equipment or components or software that has not been approved for such use by ParTech in advance; or (5) after delivery to Franchisee, the Equipment (including the AE Equipment) is subject to misuse, neglect, negligence, accident or vandalism, or deliberate act, including but not limited to: (w) objects or substance falling or leaking onto/into the Equipment (including the AE Equipment); (x) damage due to steam; (y) improper handling prior to delivery to or pick up by ParTech’s designated carrier, or storage of the Equipment (including the AE Equipment) after delivery to Franchisee or after installation; or (z) disaster, which shall include but not be limited to, fire, water, wind, flood, lightning, electrical disturbance, power surges, civil disturbance, war, terrorism or other catastrophes or similar causes after delivery of the Equipment to Franchisee; and (B) ParTech shall not be liable for any damage resulting from Franchisee’s failure to comply with ParTech’s installation instructions.

      c.   Remedies for Breach of Warranty. In the event of a Franchisee claim of a breach of the Equipment Warranty or Installation Warranty, ParTech shall repair or replace the Equipment and/or re-perform of the Services. If ParTech is unable to repair or replace the Equipment in a reasonable time and in accordance with this Agreement and without limiting any other rights or remedies of Franchisee, ParTech will, in its sole discretion, upon prompt return of the Equipment by Franchisee, remove the applicable Equipment from the terms of the Agreement (which may result in a lower Total Monthly Payment owed pursuant to the Agreement). ParTech will be responsible for return shipment of the Equipment to ParTech.  ParTech is not responsible for claims resulting from any unauthorized use of the Equipment.  These remedies shall not be deemed to have failed in their essential purpose so long as ParTech is willing to repair or replace the defective Equipment, re-perform the Services, and/or remove the applicable Equipment from the terms of the Agreement.  

      d.   Warranty Claims. To make a claim for a breach of the Equipment Warranty or Installation Warranty (a “Warranty Claim”), Franchisee must notify ParTech of a defect or breach during the applicable Warranty Period by calling 1-800-458-6898. No return of the Equipment (including AE Equipment) will be accepted without a Return Material Authorization (“RMA”) number provided by ParTech’s Sales Administration Department (at 800-448-6505). If the defect or breach is not discovered and the Warranty Claim made within the applicable Equipment Warranty Period, the Warranty Claim shall be waived. The required notice of defect or breach must specify the facts constituting the defect or breach and the existence of the defect or breach must be verified by ParTech. Franchisee agrees to be responsible for the proper packing of any Equipment returned to ParTech. Franchisee is responsible for deleting any confidential information or personally-identifiable information before sending any Equipment to ParTech for repair, replacement, or any other reason.  ParTech is not responsible for any Franchisee data left on such Equipment.  Any replacement Equipment supplied by ParTech in connection with the Equipment Warranty is subject to the same warranty for the remaining original Equipment Warranty Period.

      e.   Force Majeure.  Neither party will be liable for performance delays or non-performance due to causes beyond its reasonable control, except for payment obligations, so long as performance is resumed as soon as is reasonably practical.

6.   Default/Remedies. If an amount owed by Franchisee under this Equipment Services Schedule becomes more than ninety (90) days past due, or if Franchisee otherwise breaches this Equipment Services Schedule, Franchisee will be in default and ParTech may, in addition to any other remedies ParTech may have at law or in equity, with or without demand or notice (subject to applicable law) to Franchisee declare the entire unpaid amounts owed pursuant to this Equipment Services Schedule immediately due and payable. All rights and remedies of ParTech shall be cumulative and not exclusive of any other rights or remedies which ParTech would otherwise have at law or in equity. Franchisee shall cooperate with ParTech in ParTech’s enforcement of its rights and remedies hereunder and shall indemnify ParTech for all costs and expenses incurred by ParTech in connection with enforcement of this Equipment Services Schedule.  In any action or proceeding arising out of this Equipment Services Schedule, the prevailing party shall be entitled to recover costs and attorneys’ fees.

7.   Unauthorized Service. Franchisee will not permit any person other than a ParTech field service representative to perform maintenance or to attempt any repair to the Equipment without the prior written authorization of ParTech.  In the event such unauthorized third-party service is permitted by Franchisee on the Equipment, such Equipment may no longer be eligible for service under this Equipment Services Schedule.

8.   Survival. Notwithstanding the expiration or termination of this Equipment Services Schedule, any rights, and obligations which by their nature extend beyond such expiration or termination shall survive such expiration or termination, including the provisions of Sections 5(b), 5(c), 5(e) and this Section 8.

9.   Assignment. Except as otherwise provided in the Agreement, neither party may assign this Equipment Services Schedule in whole or part, without the prior written consent of the other.

10.  Franchisee Location Relocation. Franchisee may not permanently relocate Equipment unless such relocation is expressly communicated to ParTech in writing, as ParTech’s ability to provide the services described on Schedule B will be impacted.  In the event Franchisee’s store is relocated, Franchisee will notify ParTech within thirty (30) business days of the relocation by calling 1-800-448-6505, Product Deployment Services, identifying itself as a Subway Franchisee, providing ParTech with updated store location information and any other required and reasonably requested information.