HP US Rental Agreement V1

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EXHIBIT “B”
 
 
 
 
 
 
HARDWARE AS A SERVICE (HAAS) PARTICIPANT AGREEMENT (HPA)
 
BETWEEN
 
HP INC.
 
AND
 
FRANCHISEE

 

HARDWARE AS A SERVICES (HAAS) PARTICIPANT AGREEMENT (HPA)

This HPA is effective on the date on which Franchisee “clicks” “Agree and Add to Cart” and “Complete Order” during order placement in Shopify (“Effective Date”) and forms the agreement between Franchisee and HP Inc. (“HP”) which describes the specific services, pricing, and other commercial terms that HP will provide to the Franchisee as part of its HAAS offering. HAAS provides Franchisee product support, and lifecycle services for the HP Devices at Franchisee’s Franchise Location as provided below during the Initial Term, and any extension thereof, as defined in Section 5 of the HPA.

 

Franchisee hereby warrants and represents (i) its electronic consent and acceptance during order placement within Shopify binds Franchise to the terms of this HPA and authorizes HP to provide the Services (ii) that Franchisee shall pay for all Services provided to Franchisee, pursuant to the HPA without the necessity of a separate purchase order, and (iii) Franchisee will not contest payment for the provision of Services due to the fact that no purchase order was issued. Franchisee must include the legal entity name (if any), address, primary and alternate phones, email address and Subway® store number during order placement in Shopify.

 

The Franchisee hereby acknowledges and agrees the most recent Debit Authorization Form (“Form’) on file with Doctor’s Associates Inc. (“Franchisor”) also authorizes Franchisor to debit the Total Fee, defined in the HPA, from the bank account designated in the Form on a date determined by the 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 Fee. By accepting this HPA, Franchisee consents to the foregoing, and further agrees that all terms of the Form apply to this authorization.

 

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

 

IPC Guaranty; Dividend Offset. Both Franchisee and HP understand that IPC has guaranteed certain obligations of Franchisee as specifically set forth in Section 5.j of this HPA and that if IPC shall have made any payment to HP or its affiliate on behalf of the Franchisee as set forth herein, then IPC shall have the rights as set forth in Section 5.k of this HPA.

 

All notices required under this HPA will be in writing and sent to HP Inc. Global Legal Affairs, Attn: General Counsel 1501

Page Mill Road, Palo Alto, CA 94304 as applicable, and will be considered effective upon receipt.

 

1. DEFINITIONS

  1. Business Day” means any day other than Saturday, Sunday, or any other day on which banking institutions used by Franchisor are authorized by law or executive action to close.

  2. Device” means an RPOS owned by HP or its financing company, and provided to a Franchisee pursuant to this HPA and includes equipment, documentation, accessories, parts, and upgrades listed in Exhibit B.

  3. Device Term” means the period of time during which the Device will be provided to the Franchisee and supported by HP as set forth in this HPA. The Device Term for a Device begins on the installation date at the Franchisee Location and continues for the length of time set forth in HPA. Devices installed on or before the 15th of the month are first billed in that calendar month; Devices installed after the 15th of the month will be first billed in the following month.

  4. Device Peripheral” means the auxiliary component used in conjunction with a Device that connects to and works with the Device to perform additional capabilities.

  5. Device Support Services” means the HP-provided services set forth in Section 2.a. of this HPA.

  6. Franchise Data” means any non-public information that identifies by itself or in combination with other data, a Franchisee.

  7. Franchise Location” means the Subway® restaurant owned and operated by the Franchisee who has signed the HPA.

  8. i. “Franchisor” means Doctor’s Associates Inc.

  9. “FWH Service Desk” means Subway® service desk reachable at: 1-800-888-4848 ext. 4767 or by using Franchisor’s Technology Support Portal located on Subway Partners

  10. “HP Tool(s)” means the USB drive housing the back-up image.

  11. “HP Travel Zone” is the numeric designation (0-6) assigned to the Franchise Location defining the distance in miles from a HP Primary support office (“hub”) to the specific Franchise Location as indicated on the Exhibit A of this HPA

  12. “IPC” means Independent Purchasing Cooperative, Inc.

  13. Mid-Term Refresh” means the 48-month mid-term point of this HPA whereby each Initial Device may be refreshed with a new Device for a second 48 months period, pursuant to the terms of the applicable HPA.

  14. Personal Data” means any information that identifies or locates a natural person (a “Data Subject”) or that, in combination with other reasonably available data, can be used to identify or locate a natural person.

  15. Personnel” means an employee, agent, or subcontractor of a party.

  16. RPOS” means Retail Point of Sale Device.

  17. Security Incident” means any unauthorized or unlawful access to, or unauthorized disclosure of any Personal Data or Franchisee Data (solely in respect to HP’s obligations to protect such Personal Data or Franchisee Data under the HaaS Agreement or the HPA) by HP.

  18. “Services” means the Hardware-as-a-Service managed solution described in this HPA.

  19. “Shopify” means the shopping cart vehicle used by Franchisee to select the Device and optional Device Peripherals as depicted in Exhibit B of this HPA.

  20. “Virus” or “Viruses” means program code or programming instruction or set of instructions intentionally designed to disrupt, disable, harm, interfere with, or otherwise adversely affect computer programs, data files, or operations; or, other code typically described as a virus or by similar terms, including Trojan horse, spyware, malware, malicious code, worm, or backdoor.

DESCRIPTION OF SERVICES

  1. Account Delivery Management. An Account Delivery Manager (“ADM”) will be the Franchisee’s primary business contact for HaaS day-to-day administration, staging and integration, scheduling, tracking, deployment, procurement, fulfillment, delivery, designated travel zone information, management, and support services, after order placement through end of the Term.

  2. Device Procurement. Franchisee will make Device and Device Peripheral selection within the Shopify shopping cart for the Initial Device and the Mid-Term Refresh Device.

  3. Device Support Services. HP will provide Device Support Services for the Franchise Location during the Term in the event a Device break/fix incident (“Incident”) cannot be resolved remotely.

    1. Coverage Window. The coverage window means the timeframe in which an Incident can be supported. The coverage window is defined below in the Service-level Table. “Coverage Day” is Monday to Sunday, excluding HP holidays.

      1. Should a hardware Incident on the Device be unable to be resolved remotely by the FWH Service Desk, a replacement part or pre-imaged Device that is new, or equivalent to new in performance will be shipped to the Franchise Location within the Coverage Window.

      2. Should an Incident on a Device Peripheral be unable to be resolved remotely by the FWH Service Desk, a replacement that is new, or equivalent to new in performance will be shipped to the Franchise Location within the Coverage Window.

  1. On-Site Response Service Level: For a Franchise Location that is located within 100 miles of a primary HP hub (defined as HP Travel Zones 0-3), HP will provide on-site replacement part or Device (with Franchisor image installed) within six (6) hours when the Incident is received by Cut-Off Time as depicted in the Service-level Table.

  2. Device support Services for a Franchisee Location that is located more than 100 miles from an HP hub (defined as HP Travel Zones 4-6) will be shipped a replacement part or Device for delivery on the next Business Day, when the Incident is received by Cut-Off Time as depicted in the Service- level Table. Replacement part or Device will be self-installed and defective part or Device shipped back to HP per prepaid shipping instructions included with replacement part or Device. If Franchisee requires on-site assistance to perform the Device swap, HP will provide a technician as depicted in the Service-level Table.

Service-level Table.

0-3

1-100 miles

(1-160 km)

Available 13X7, excluding HP holidays

Six-hour Call to Repair 13X7 Advanced Exchange/Parts Replacement

3:00 p.m.

Local Franchisee Time

Next Coverage Day for onsite tech

4-6

101-300

miles (161

– 480 km)

Available 8x5, excluding HP holidays,

if requested by Franchisee

Next Business Day shipment of Advanced Exchange/Parts Replacement

2:00 p.m.

CT

1-2 additional Coverage Days, excluding weekends if onsite tech requested

 

ii. HP will:

  1. Contact Franchisee prior to arrival and will arrive on site at the Franchise Location in Zones 0-3 with replacement part or Device

  2. Ship replacement part or Device to Franchise Locations in Zones 4-6

  3. Provide accompanying return instructions with the replacement part or Device to enable Franchisee to return the defective Device to HP

  4. Include shipping cost, return instruction and shipping label for return of the defective part or Device to HP

  5. Provide part or Device swap by onsite installation technician if requested by Franchisee.

iii. Franchisee will:

  1. Contact the FWH Service Desk in the event of an Incident for remote diagnosis.

  2. Receive from HP and self-install the replacement part or Device, with option to elect on-site technician assistance for the Device for locations

  3. Ensure final Franchise Location-specific network configuration is enabled via FWH Service Desk once replacement part or Device is installed on the network.

  4. Transfer the USB stick, which houses an image back-up located within the RPOS panel, to the replacement Device prior to returning the defective Device to HP.

  5. Upon HP’s request, Franchisee will be required to:

    1. Provide all information necessary for HP to deliver the Services described herein.

    2. Start self-tests and install and run other diagnostic tools and programs.

    3. Install Franchisee-installable services, software, and/or firmware updates and/or patches.

    4. Perform activities to help HP identify or resolve an Incident, as requested by HP.

  6. Install all critical Franchisee-installable services, software, and/or firmware updates, as well as Franchisee Self Repair (CSR) parts and replacement products delivered to Franchisee.

  7. Return the defective part or Device within five (5) Business Days of delivery per the postage-paid instructions included with the replacement part or Device. In the event HP does not receive the defective part or Device within fifteen (15) days or if the part or Device is degaussed or otherwise physically damaged upon receipt, HP will send a notice to Franchisee of HP’s intent to invoice Franchisee for the HP replacement price. Franchisee will remit payment for the degaussed or physically damaged part or Device to HP within thirty (30) days. Franchisee will return the defective part or Device within thirty (30 days). Upon 20 days’ notice, to Franchisee of failure to return a defective Device or part and/or subsequent failure to pay for replacement Device, Franchisee is subject to HP Remedies for Breach.

  1. Service Limitations –Device Support Services

    1. Device Support Services herein will be provided onsite for the base Device only unless Peripherals were procured within Shopify by Franchisee at the same time as base Device.

    2. An advanced exchange will not apply if the Services can be delivered using remote diagnosis, remote support, or other Services delivery methods described above.

    3. The replacement Device, and peripheral package, if purchased, will inherit the original RPOS base unit remaining 48-month warranty. The APC UPS, if purchased carries at 36-month warranty.

    4. Onsite response time specifies the period that begins when the initial call has been received and acknowledged by HP, as described herein. The onsite response time ends when the HP authorized representative arrives at the Franchise Location, or when the reported event is closed with explanation that HP has determined it does not currently require an onsite intervention.

    5. If Franchisee requires an on-site technician to perform the Device swap, rather than physically disconnecting the defective Device and connecting the replacement Device themselves, Franchisee will endeavor to indicate this requirement to HP when the Incident is logged.

    6. If Franchisee does not act upon the specified Franchisee responsibilities as outlined in 3.a-c, at HP’s discretion, HP will i) not be obligated to deliver the Services as described, or ii) perform such Service at Franchisee’s expense at the prevailing time and materials rates.

    7. The following activities or situations will suspend the support Services until they are completed or resolved:

      1. Current delinquency in Total Fee payments after 90 days or failure to return defective Device by Franchisee after the 20 days’ notice specified in the last sentence of Section 2.c.iii.7.

      2. Any Franchisee or third-party actions or inaction impacting the repair process such as failure to return a defective device

      3. Any automated or manual recovery processes triggered by the hardware malfunction.

      4. Any other activities not specific to the hardware repair but required to verify that the hardware malfunction has been corrected.

    8. The following activities are excluded from the Services described herein:

      1. Backup, recovery, and support of the operating system, other software, and data.

      2. Operational testing of applications, or additional tests requested or required by Franchisee.

      3. Troubleshooting for interconnectivity or compatibility problems.

      4. Support for network-related problems.

      5. Services required due to failure of Franchisee to incorporate any system fix, repair, patch, or modification provided to Franchisee by HP.

      6. Services that, in the opinion of HP, are required due to improper treatment or use of the Device or due to unauthorized attempts by non-HP Personnel to install, repair, maintain, or modify hardware, firmware, or software

      7. Franchisee’s failure to maintain approved internal environment conditions

      8. Devices used beyond the manufacturer’s recommended performance conditions.

    9. HP reserves the right to modify the Device Support Services support time commitment as it applies to Franchisee’s site-specific product configuration, location, and work environment of the equipment. For example, site specific security requirements, safety training or other Franchisee caused delay time may be removed from the Device Support Services time commitment.

    10. The Device Support Services time commitment does not apply when system access, including physical, remote troubleshooting, and hardware diagnostic assessments, is delayed or denied. If Franchisee requests scheduled service, the Device Support Services time begins at the agreed upon scheduled time. HP is not responsible for delayed, disrupted or additional support or services caused by: (i) actions or events where HP is not at fault; (ii) lost, damaged, stolen, misused Devices and software where HP is not at fault; (iii) inaccurate or incomplete assumptions or dependencies where HP is not at fault; (iv) improper or unauthorized Franchisee use, operation, relocation, modification or repair of Devices; (v) Franchisee’s failure to maintain approved internal environmental conditions and to timely address Franchisee resolvable conditions; (vi) Franchisee’s failure to conduct scheduled maintenance as well as planned upgrades, unless expressly the duty of HP; (vii) Franchisee’s failure to install Franchisee-installable software or firmware updates and patches, as d replacement Devices provided to the Franchisee by HP for such installation; (viii) Franchisee’s failure to implement and maintain an adequate continuity, redundancy and/or recovery program for Franchisee’s business functions and operations; and (ix) Devices used beyond the manufacturer’s recommended performance conditions. Except otherwise specified in this HPA, HP shall manage the method and provision of Services in its sole discretion.

  1. A Device Support Services time commitment does not apply when Franchisee chooses to have HP prolonged diagnosis rather than execute recommended recovery procedures.

  2. In the event a device is received by HP, as a result of an Incident, that is not deemed defective (“No Fault Found”), a restocking fee at prevailing time and materials rates will be invoiced to Franchisee for remittance to HP within 30 days.

 

  1. Prerequisites – Device Support Services

    1. Franchisee must have rightfully obtained the Device and its related license(s) for any software and/or firmware provided on the Device.

    2. HP, at its sole discretion, may require an audit on the Devices. If such an audit is required, an HP authorized representative will contact Franchisee, and Franchisee will agree to arrange for an audit to be performed within a 30-day timeframe. At the sole discretion of HP, the audit may be performed onsite, via remote system access, via remote audit tools, or over the phone.

 

  1. Staging and Integration. Staging and Integration Services of each RPOS Device will be executed as follows prior to delivery of the Device to the Franchisee Location. HP will:

    1. Image Device

    2. Execute BIOS settings via Secure Boot Configuration

    3. Personalize Computer Name

    4. Image and insert USB Stick

    5. Insert user drop-in-box-instructions

    6. Consolidate with optionally-ordered Peripherals for shipment to Franchise Location

    7. Ship via Standard Ground Freight using IPC-provided freight account for shipping expenses and cross- border fees.

 

  1. Device Installation. Devices will be delivered ready for self-installation to Franchise Locations. Device installation is to be performed by Franchisee which will trigger acceptance and subsequent warranty entitlement to support the Device for the applicable Device Term.

     

    1. HP will:

      1. Confirm self-installation has been completed by the Franchisee by contacting Franchisee.

         

    2. Franchisee will:

      1. Ensure electrical and network specifications for Device requirements are in place prior to commencement of installation of the Device.

      2. Install the Device and Peripherals, if optionally purchased.

      3. Report Dead on Arrival (DOA) Device incident to HP no later than five (5) business days from delivery to Franchise Location.

      4. Dispose of legacy RPOS device at time of initial HP RPOS Device installation.

      5. Coordinate with HP with respect to the return of the HP RPOS Device when a new Device is deployed at the Mid-Term Refresh.

         

  2. Services Acceptance. Acceptance of Services will occur the earlier of HP’s confirmation with Franchisee of Device installation or within five (5) business days of delivery.

     

  3. Asset Disposition (Return of HP-provided Device and Tools). In the event this Agreement is renewed, as set forth in Section 5 (Term and Termination), the Asset Disposition process herein sets forth how the Devices at the end of the applicable Terms are returned to HP.

     

    1. At Mid-Term, HP will provide asset disposition services of the HP RPOS Devices initially deployed (the “Initial Devices”), such that expenses for Device retrieval are included. Shipping expenses for return of RPOS Devices at the end of the Mid-Term are excluded from the Services herein. Disposition scope is summarized as follows in the table below.

Subway legacy RPOS Device

Year 0

Freight & Packaging excluded

Initial HP RPOS deployed

Initial Term Device

Freight & Packaging

included

End-of-Contract Term RPOS Device

Mid-Term Device

Freight & Packaging excluded

 

  1. HP will:

    1. Develop a schedule for the planned Mid-Term Device refresh and provide email notification of planned Mid-Term Device refresh

    2. Provide instructions for return of Initial Devices

    3. Facilitate the return logistics of the self-de-installed Initial Devices at Mid-Term Refresh

    4. Include freight expenses for transport of the de-installed Initial Devices at Mid-Term Refresh

    5. Provide packing instructions to maximize safe transport of de-installed Initial Device(s).

  2. Franchisee will:

    1. Include legal entity (if any) and email contact information when requesting initial Devices in Shopify such that email address will be used for communication of planned Mid-Term Refresh

    2. De-install and dispose of existing legacy RPOS devices (“Legacy Devices”); Legacy Device disposal is excluded from this HPA.

    3. Return all applicable Devices and HP Tools (“Terminated Products”), excluding those Devices that Franchisee purchases or licenses, at the end of the Initial Term and Mid-Term (as applicable).

    4. At Mid-Term, Franchisee shall, at its own risk: (i) de-install and, at HP’s direction, return all Initial Devices and associated documentation; (ii) pack all such Initial Devices in accordance with HP's specifications; and (iii) return all such Initial Devices to HP within fifteen (15) calendar days of the expiration or termination of the Term in the same condition as when delivered (including Franchisee's removal or deletion of all data contained in the Devices), ordinary wear and tear excepted, freight is prepaid and insured to the location provided by HP. Franchisee shall continue to pay all Fees until all applicable Initial Products are received by HP

    5. At the end of the HPA Term, Franchisee shall, at its own risk and expense: (i) de-install and, at HP’s direction, return all Mid-Term Devices and associated documentation; (ii) pack all such Mid- Term Devices in accordance with HP's specifications; and (iii) return all such Mid-Term Devices to HP within fifteen (15) calendar days of the expiration or termination of the HPA Term in the same condition as when delivered (including Franchisee's removal or deletion of all data contained in the Devices in accordance with HP’s written instructions), ordinary wear and tear excepted, freight is excluded from HP pricing. Franchisee shall continue to pay all Fees until all applicable Terminated Devices are received by HP.

       

  3. Service Limitations – Asset Disposition (Return of HP-provided Device and Tools)

    1. HP cannot be held liable for unexpected Device losses during transportation exclusive of Mid-term Device Refresh return.

    2. Franchisee is responsible for removing all data on/in the Device prior to returning Device to HP. HP is not responsible for any data contained on/in the Device.

 

FRANCHISEE RESPONSIBILITIES

  1. Prerequisites. Before HP can perform the Services described herein, Franchisee must have accepted the HPA terms herein as presented within Shopify and provided the legal entity name, address, phone number(s), email address for each Franchise Location.

  2. Hazardous Environment. Franchisee shall notify HP if Franchisee uses Devices in an environment that poses a potential health or safety hazard to HP personnel. HP may require Franchisee to maintain such Devices under HP supervision and may postpone service until Franchisee remedies such hazards.

  3. Access. Provide HP access to Franchisee's building facilities, Devices, passwords, as required by HP to perform the Services. Provide suitable work area at Franchisee's Location for use by HP personnel. Provide sufficient storage space at each location for equipment being delivered to Franchisee location.

  4. Store Moves. Franchisee may not permanently relocate Devices unless such relocation is expressly communicated to HP in writing as ability to provide Device Support Services will be impacted. In the event Franchisee store is moved, Franchisee will notify HP within thirty (30) business days of move such that HP will update the store location and information necessary for proper payment remittance to continue Devices Support Services.

  1. Store Closure/Bankruptcy. In the event Franchisee Location is closed or the Franchisee is subject to a bankruptcy proceeding, Franchisee will notify HP such that HP will provide equipment return instructions per Section 2.g (Asset Disposition). Subject to applicable law, Franchisee will package and ship Devices to HP. Subject to applicable law, Franchisee will be invoiced in the amount of $200.00.

  2. Store Assignment. In the event of Franchise sale of a Franchise Location, Franchisee may elect to assign the HPA to new owner with notice thereof to HP and the Franchisor and provide HP and Franchisor with any required and reasonably requested information. In the event Franchisee elects to return the Device, Franchisee will notify HP such that HP will provide equipment return instructions per Section 2.g (Asset Disposition). Franchisee will package and ship Devices to HP. Franchisee will be invoiced in the amount of $200.00. IPC has guaranteed Franchisee’s obligation to pay such $200 amount.

 

LIMITATIONS, ASSUMPTIONS AND DEPENDENCIES

Good Faith Cooperation. The parties acknowledge that successful completion of Services will require their full and mutual good faith cooperation. Where approval, acceptance, consent or similar action by either party is required by any provision of this HPA, such action will not be unreasonably delayed or withheld. Franchisee agrees that to the extent its failure to meet its responsibilities results in a failure or delay by HP in performing its obligations under the HPA, HP will not be liable for such failure or delay.

 

TERM AND TERMINATION

  1. HPA Term. Services will begin 30 days from Effective Date of this HPA and continue for forty-eight months from the start of the Device Term (the “Initial Term”). At the end of the Initial Term, this Agreement will be renewed for an additional forty-eight (48) month term (the “Mid-Term”), unless terminated by Franchisee no less than sixty (60) days prior to the end of the Initial Term. Both the Initial Term and Mid-Term, as well as any extensions of the same, shall collectively be referred to as the “HPA Term”. Any delay in receipt of the necessary purchasing documents may affect the engagement start, completion date, and duration.

  2. Expiration. Franchisee’s options at the end of the HPA Term or Device Term, are to: (i) renew and extend the Term (subject to mutual written agreement by HP); or (ii) allow the Term to expire. Unless Franchisee provides HP with written notice regarding Franchisee’s intention at least ninety (90) days prior to the end of a Term, such Term shall be automatically extended on the same terms and conditions (unless otherwise provided in Part A of this HPA) for consecutive periods of ninety (90) days.

  3. Termination. Either party may terminate this HPA on written notice if the other fails to meet any material obligation and fails to remedy the breach within a reasonable period after being notified in writing of the details. If either party becomes insolvent, unable to pay debts when due, files for or is subject to bankruptcy or receivership or asset assignment, subject to applicable law, the other party may terminate this HPA and cancel any unfulfilled obligations. Any terms in the HPA which by their nature extend beyond termination or expiration of the HPA will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns. The termination of a Device Term will not act to terminate this HPA unless otherwise expressly stated herein

  4. Early Termination. Subject to Section 5.g below, Franchisee may terminate a Term, including any automatically extended Term, at any time with sixty (60) days prior written notice to HP.

  5. Early Termination Fee. If early termination occurs other than for reasons set forth in Sections 3.e. and 3.f Franchisee shall pay to HP the remainder of all outstanding balances owed; all Services and expenses incurred up to and including the date of termination, along with any interest and fees due and outstanding; and an aggregate lump sum payment of all remaining Device Fee which would have been owed by the Franchisee for the remaining Term. All equipment shall be returned to HP within thirty (30) days of the termination of this HPA.

  6. Purchase of Device. Franchisee may request to purchase Devices at any time during or on the expiration of the applicable Device Term. If such a request is accepted by HP and/or HP’s financing company, the purchase of Devices will be subject to a separate purchase and/or license agreement among relevant parties.

  7. Return of HP-provided Device and HP Tools. Except as otherwise provided in this Agreement relating to Mid-Term Refresh, upon termination or expiration of the relevant Term, Franchisee must return all applicable Devices and HP Tools (“Terminated Products”), excluding those Devices that Franchisee purchases or licenses as provided above. Except for Devices and HP Tools which HP requires to be de-installed and moved only by HP authorized representatives at Franchisee’s expense, Franchisee shall, at its own risk and expense: (i) de-install and, at HP’s direction, return or destroy (and certify such destruction) all Terminated Products and associated documentation;

(ii) pack all such Terminated Products in accordance with HP's specifications; and (iii) return all such Terminated Products to HP within fifteen (15) calendar days of the expiration or termination of the Term in the same condition as when delivered (including Franchisee's removal or deletion of all data contained in the Devices), ordinary wear and tear excepted, freight prepaid and insured to the location provided by HP. Franchisee shall continue to pay all Fees until all applicable Terminated Products are received by HP.

  1. HP Remedies for breach by Franchisee. In the event of an uncured material default or breach of this HPA by Franchisee, HP or its financing company may exercise one or more of the following remedies: (i) declare all Fees due and owed by Franchisee to HP to become immediately due and payable, including any Early Termination Fees; (ii) subject to applicable law, enter upon the premises where the HP-provided Device(s) and HP Tools are located and take immediate possession of and remove them; (iii) sell, without appraisal, any or all of the Devices at public or private sale or otherwise dispose of, hold, use or lease to others; (iv) exercise any other right or remedy which may be available to HP or its financing company under applicable law or in equity, and (v) recover from Franchisee the costs of enforcement of this HPA, or protection of HP’s interest in the Devices (including reasonable collection agency and attorney’s fees). No express or implied waiver by HP of any default should constitute a waiver of any other default or a waiver of any of HP’s or its financing company’s rights under this HPA. In the event of termination by HP for Franchisee’s breach, Franchisee shall be responsible for all Fees, including Early Termination Fees and all costs, including attorney fees and costs, in any collection matter associated with this HPA.

  2. Franchisee Remedies for breach by HP. Without limiting any other rights or remedies available to Franchisee at law or in equity, if Franchisee terminates this HPA for uncured material breach by HP, Franchisee may elect to purchase the Devices, subject to a separate mutually acceptable purchase HPA

  3. IPC Cure. The parties acknowledge and agree that if a Franchisee defaults on its obligation to pay the Total Fee as contemplated by Section 6.b of this HPA for three (3) consecutive calendar months (the “Period of Non- Payment”), then, at that time, and provided that this HPA has not been earlier terminated by HP, IPC has guaranteed to HP to pay the unpaid invoices for such Total Fees for the Period of Non-Payment. In addition, after the Period of Non-Payment (and provided that this HPA has not been earlier terminated by HP), IPC has guaranteed to HP to either (A) assume responsibility for payment of the Total Fees for the remainder of the initial four (4) year term under this HPA(excluding any extensions of the initial four (4) year term) by paying such Total Fees via lump sum payment to HP, or (B) pay a termination fee to HP (the “IPC Termination Fee”) in an amount determined by a formula agreed upon between IPC and HP. IPC is obligated to satisfy its obligation pursuant to (A) 

    or (B) above within thirty (30) days after receipt of written notice from HP. If IPC satisfies its guaranty obligation to pay the unpaid invoices for Total Fees during the Period of Non-Payment and under (A) above, then the Franchisee’s payment default under this HPA shall be deemed cured in all respects and this HPA shall continue in full force and effect pursuant to its terms (and HP shall not be entitled to terminate this HPA as a result of such payment default). If IPC satisfies its guaranty obligation to pay the monthly invoices for Total Fees during the Period of Non-Payment and under (B) above, then this HPA shall automatically terminate and the Franchisee shall have no further payment obligations under this HPA to HP. If IPC fails to satisfy its guaranty obligations as provided above, then HP may collect and take possession of the equipment, and may exercise any other remedies available to it in this HPA against the Franchisee. To the extent there is any inconsistency between the provisions of this Section and the other terms of this HPA, the provisions of this Section shall control.
  4. lPC Dividend Offset. If IPC shall have made any payment to HP or its affiliate on behalf of the Franchisee as set forth in Section 5.j or Section 3.f, then Franchisee shall reimburse IPC for any such payments, and, in connection therewith, Franchisee hereby authorizes IPC to offset any dividends, distributions or other amounts payable or distributable by IPC to Franchisee in satisfaction of such reimbursement obligation. IPC is an intended third party beneficiary to this Section 5.k., and this Section 5.k may be enforced by IPC and its successors and assigns as if IPC and its successors and assigns were original signatories hereto.

.

FEES AND PAYMENT SCHEDULE

  1. Pricing. The price for the Services provided to the Franchise Location are listed on the Exhibit B of this HPA and is exclusive of all taxes duties, levies, fees, or similar charges (the “Monthly Fee”).

  2. Payment. Franchisee has authorized Franchisor to debit Franchisee’s pre-authorized account for the Total Fee (defined below) payable to HP, in arrears, in accordance with the Consent and Authorization agreed to by Franchisee. Franchisee agrees that such account will have an amount equal to no less than the Monthly Fee plus taxes, duties, levies, fees, or similar charges collectively (the “Total Fee”) at the time payment is due. If Franchisor is not able to collect the Total Fee, Franchisee will be considered in default and HP may invoice Franchisee directly for any outstanding amounts, and such amounts will be due and payable to HP immediately. If Franchisee does not make immediate payment, HP may elect to exercise its remedies in Section 5.h. above. If a withholding tax is required by law, Franchisee must contact an HP representative to discuss the appropriate procedures. Franchisee acknowledges and agrees that its payment obligations are absolute and unconditional and shall not be subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment, or recoupment for any reason whatsoever (including any repair or replacement costs for loss or damage to any HP provided Products).

c. The Monthly Fee stated herein is based solely on the Devices described in this HPA and is valid for the life of the Devices and any replacements. Any Device modification(s) will be made only through a written agreement by both parties.

 

DEVICES AND SOFTWARE TERMS AND CONDITIONS

  1. Devices. Franchisee will have the right to use the Devices for the HPA Term. Franchisee agrees to protect HP’s or its financing company’s ownership interest in such Devices by: i) placing or allowing HP to place any physical or electronic marking evidencing HP’s or its financing company’s ownership, ii) using due care to maintain the Devices, 

    iii) not making any modifications to the Devices, iv) subject to Section 3.d. keeping the Devices in Franchisee’s exclusive care, custody and control and free from any liens or encumbrances from the date of delivery to Franchisee’s location until such Devices are returned and received by HP, or purchased by Franchisee as may be described herein. Franchisee will promptly notify HP of, bear all risks for, and pay for any loss or damage not caused by HP to Devices (including any repair or replacement costs) described herein, unless otherwise specified in this HPA. Franchisee may not permanently relocate Devices unless such relocation is expressly agreed to by HP in writing.
  2. Ownership Statement. If this HPA or the Agreement is ever deemed by a court of competent jurisdiction to be a lease intended for security, then to secure Franchisee’s obligations under this HPA, Franchisee hereby grants HP a purchase money security interest in the Devices (including any attachments, accessories, replacements, and proceeds). Franchisee hereby authorizes HP to file a financing statement at HP’s sole cost and expense to give public notice of HP’s ownership of these Devices. Franchisee represents to HP that the information provided in the signature block is accurate and will notify HP in writing in the event of any changes thereto.

ADDITIONAL TERMS

  1. Product Performance. All Devices are covered by HP’s limited warranty statements provided with the Devices or otherwise made available with the Devices and this HPA.

  2. Warranty Claims. When HP receives a valid warranty claim, HP will either repair the relevant defect or replace the Devices. If HP is unable to do either within a reasonable time, without limiting any other rights or remedies of Franchisee, Franchisee will be entitled to a full refund upon the prompt return of the Devices to HP. HP will pay for shipment of repaired or replaced Devices to Franchisee and HP will be responsible for return shipment of the Devices to HP. This HPA states all remedies for warranty claims. To the extent permitted by law, HP disclaims all other warranties.

  3. Confidentiality. Information exchanged under this HPA will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential information may only be used for the purpose of fulfilling obligations or exercising rights under this HPA, and shared with Franchisor, IPC, or either party’s’ 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 for 5 years from the date of termination of this HPA or (if longer) for such period as the information remains confidential. These obligations do not cover information that: i) was known or becomes known to the receiving party without obligation of confidentiality; ii) is independently developed by the receiving party; or iii) where disclosure is required by law or a governmental agency.

  4. Intellectual Property Rights. No transfer of ownership of any intellectual property will occur under this HPA. Franchisee grants HP a non-exclusive, worldwide, royalty-free right and license to any intellectual property that is necessary for HP and its designees to perform the ordered Services.

  5. Intellectual Property Rights Infringement. HP will indemnify, defend, hold harmless from and against, and settle any claims against Franchisee that allege that any Devices supplied under this HPA infringes the intellectual property rights of a third party. HP will rely on Franchisee’s prompt notification of the claim and cooperation with our defense. HP may modify the Devices so as to be non-infringing and materially equivalent, or HP may procure a license. Without limiting the indemnification obligations herein, if these options are not available, HP will refund to Franchisee the amount paid for the affected Devices in the first year or the depreciated value thereafter. HP is not responsible for claims resulting from any unauthorized use of the Devices.

  6. Global Trade Compliance and Recycling. Devices provided under this HPA are for Franchisee’s internal use and not for further commercialization. If Franchisee exports, imports or otherwise transfers Devices provided under these terms, Franchisee will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations. HP may suspend its performance under this HPA to the extent required by laws applicable to either party.

  7. Limitation of Liability. HP’s liability to Franchisee under this HPA is limited to an amount no greater than $1,000,000. Neither Franchisee nor HP will be liable for lost revenues or profits, downtime costs, loss or damage to data or

indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, intellectual property infringement indemnification obligations, breach of the other party’s Confidential Information, death or bodily injury caused by their negligence; acts of fraud; willful misconduct, willful repudiation of the HPA; nor any liability which may not be excluded or limited by applicable law.

  1. 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 reasonably practical.

  2. Removal of Personally Identifiable Information. Franchisee is responsible for deleting any confidential information or personally-identifiable information before sending any Devices to HP for repair, replacement, or any other reason. HP is not responsible for any Franchisee data left on such Devices.

  3. Choice of Law; Dispute Resolution. 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. If either party believes in good faith that the other party is in breach of this Agreement, it shall promptly inform the other party, and both Parties shall use reasonable efforts to promptly resolve such dispute. If such dispute or claim relating cannot be settled informally pursuant to this Section, the parties 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. Notwithstanding the foregoing, either party may seek injunctive relief from any court of competent jurisdiction. In any action or proceeding arising out of this HPA, the prevailing party shall be entitled to recover costs and attorneys’ fees.

  4. Notices. All notices required under this HPA will be in writing and sent to the addresses set forth on the cover page. In all cases, the notice will be sent with a copy to HP Inc. Global Legal Affairs, Attn: General Counsel 1501 Page Mill Road, Palo Alto, CA 94304 as applicable, and will be considered effective upon receipt.

  5. Assignment. Neither party may assign this HPA in whole or part, without the prior written consent of the other.

  6. Third Party Beneficiary. Except for IPC, HP and HP’s financing company, solely with respect to exercising and enforcing its interests under this HPA, this HPA is entered into solely between Franchisee and HP. This Agreement will not be enforceable by any other third party.

  7. General. This HPA represents our entire understanding with respect to its subject matter and supersedes any previous communication or HPAs that may exist. Modifications to the HPA will be made only through a written amendment signed by both parties.

Appendix A 

0

0-5 miles (0-8km)

1

6-25 miles (9-40km)

2

26-50 miles (41-80km)

3

51-100 miles (81-160Km)

4

101-200 miles (161-320km)

5

201-300 miles (321-480 km)

6

Greater than 300 miles (481+km)

Appendix B – Device Fees & Approved Devices

Device Fees

 

HaaS Service Description

 

Device Term (months)

Per Device

Monthly Fee (excluding

tax and shipping)

HP POS 9 Package

48

$56.83

HP POS 9 Package with MSR

48

$58.80

HP POS 9 Package with Heavy Duty Cash Drawer Upgrade

48

$58.61

HP POS 9 Package with MSR + Heavy Duty Cash Drawer Upgrade

48

$60.58

HP POS 9 Terminal Only

48

$45.07

HP POS 9 Terminal Only with MSR

48

$47.04

 

Approved Devices

Franchisee shall elect a Terminal Only or HP POS 9 Package via the Shopify shopping cart.

 

HP POS 9 Package

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Standard Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

HP POS 9 Package with MSR

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Standard Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

MSR

HP POS 9 Package with Heavy Duty Cash

Drawer Upgrade

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Heavy Duty Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

Standard + Heavy Duty Cash Drawer & MSR Package

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Heavy Duty Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

MSR

Terminal Only

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

 HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

 

 

Terminal Only & MSR

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Peripheral: MSR

EXHIBIT C

 

Device Fees. 

 

HaaS Service Description

 

Device Term (months)

Per Device

Monthly Fee (excluding taxes and shipping)

HP POS 9 Package

48

$56.83

HP POS 9 Package with MSR

48

$58.80

HP POS 9 Package with Heavy Duty Cash Drawer Upgrade

48

$58.61

HP POS 9 Package with MSR + Heavy Duty Cash Drawer Upgrade

48

$60.58

HP POS 9 Terminal Only

48

$45.07

HP POS 9 Terminal Only with MSR

48

$47.04

Approved Device Packages.

HP POS 9 Package

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Standard Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

 

 

HP POS 9 Package with MSR

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Standard Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

MSR

HP POS 9 Package with Heavy Duty Cash Drawer Upgrade

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Heavy Duty Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

 

HP POS 9 Package with MSR + Heavy Duty Cash Drawer Upgrade

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Includes Peripherals:

Heavy Duty Cash Drawer

HP Epson Receipt Printer

Slim Keyboard Kit

UPS Battery Back-up

MS

HP POS 9 Terminal Only

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

 

HP POS 9 Terminal Only with MSR

HP RP915G1ATeP/i56500/128p/16B/51k US

HP RP9 Retail System w/Ergo. Sta. US

HP RP9 G1 Retail System Model 9015

W10I6R 64-bit OS US

Energy Star Certified Label

Intel Core i5-6500 3.2G 6M 2133 4C CPU

128GB M.2 SATA 3D SSD

16GB DDR4-2133 SODIMM (2x8GB) RAM

HP RP9 2x20 LCD Top Mount w/arm Drop In Box

HP RP9 Integrated Fingerprint Reader-Left

HP RP9 Ergonomic Stand

USB Stick (32GB) for Image Backup

Peripheral: MSR