|
AGREEMENT. Merchant shall not allow any other person or entity to maintain or tamper
<br />with rental equipment without the express written consent of GLOBAL PAYMENTS.
<br />28.14Memhant's rights and remedies hereunder are exclusive and in lieu of all other
<br />rights and remedies. GLOBAL PAYMENTS shall not otherwise be liable for any error,
<br />omission, delay, loss of data or records or disclosure of confidential information which may
<br />occur as a result of, or in any way be connected with, any use of equipment or services
<br />provided by GLOBAL PAYMENTS pursuant to this or any other agreement. IN ANY
<br />EVENT, GLOBAL PAYMENTS'S LIABILITY TO MERCHANT, WHETHER MUSING
<br />IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND
<br />STRICT LIABILITY) OR OTHERWISE, SHALL NOT EXCEED THE LESSER OF THE
<br />DIRECT LOSS TO MERCHANT OR AN AMOUNT EQUAL TO THE AGGREGATE OF
<br />MONTHLY RENTAL FEES PAID TO GLOBAL PAYMENTS BY MERCHANT IN THE
<br />SIX-MONTH PERIOD PRIOR TO THE INCIDENT GIVING RISE TO LIABILITY. IN
<br />NO EVENT SHALL GLOBAL PAYMENTS BE LIABLE FOR SPECIAL, INCIDENTAL,
<br />INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR FOR ANY
<br />INTERRUPTION OR LOSS OF USE, DATA, BUSINESS OR PROFITS, WHETHER OR
<br />NOT SUCH LOSSES OR DAMAGES WERE FORESEEABLE OR GLOBAL
<br />PAYMENTS WAS ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS
<br />OF WHETHER ANY LIMITED REMEDY HEREIN FAILS OF ITS ESSENTIAL
<br />PURPOSE. GLOBAL PAYMENTS is not responsible for any loss or damages whatsoever
<br />sustained by Merchant arising as a result ofany acts ofGod, strikes, flood, weather, shortages
<br />of parts or supplies or other events beyond its reasonable control.
<br />28.15GLOBAL PAYMENTS, NOT BEING THE MANUFACTURER OF THE
<br />EQUIPMENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND
<br />WHATSOEVER WITH RESPECT TO THE EQUIPMENT INCLUDING BUT NOT
<br />LIMITED TO: THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS
<br />FOR ANY PARTICULAR PURPOSE; THE DESIGN OR CONDITION OF THE
<br />EQUIPMENT; THE QUALITY OR CAPACITY OF THE EQUIPMENT; THE
<br />WORKMANSHIP OF THE EQUIPMENT; COMPLIANCE OF THE EQUIPMENT WITH
<br />REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OF CONTRACT
<br />PERTAINING THERETO; THE ABSENCE OF ANY INFRINGEMENT OF ANY
<br />PATENT, TRADEMARK OR COPYRIGHT; THE ABSENCE OF LATENT OR OTHER
<br />DEFECTS, WHETHER OR NOT DISCOVERABLE; THE ABSENCE OP ANY
<br />OBLIGATION BASED ON STRICT LIABILITY IN TORT, UPON SALE OF THE
<br />EQUIPMENT TO MERCHANT, GLOBAL PAYMENTS HEREBY ASSIGNS, TO THE
<br />EXTENT POSSIBLE, ALL WARRANTIES AND RIGHTS OF GLOBAL PAYMENTS
<br />WITH RESPECT TO T14E EQUIPMENT PROVIDED BY THE MANUFACTURER OF
<br />THE EQUIPMENT. GLOBAL PAYMENTS DOES NOT MAKE ANY EXPRESS OR
<br />IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT
<br />TO THE MANUFACTURER'S WARRANTY,
<br />28.16 Except as expressly provided herein, Merchant may not assign its rights or delegate
<br />its responsibilities regarding rental equipment under this EQUIPMENT AGREEMENT
<br />without Ore prior written consent of GLOBAL PAYMENTS, which will not be unreasonably
<br />withheld.
<br />28,17 The Parties acknowledge and agree that this EQUIPMENT AGREEMENT was,
<br />and shall be deemed to have been, made and delivered in Muscogee County, Georgia The
<br />laws of the Slate of Georgia, without giving effect to its conflicts of law principles, shall
<br />govern all matters (whether in contract, statute, tort or however characterized) arising out of
<br />or relating to this EQUIPMENT AGREEMENT, including, without limitation, the validity,
<br />interpretation, construction, performance and enforcement of the EQUIPMENT
<br />AGREEMENT. The Parties agree that, in the event of any dispute regarding, arising out of
<br />or relating to this EQUIPMENT AGREEMENT, the courts of the State of Georgia shall have
<br />and be vested with personal jurisdiction over the Parties. 'the Parties further agree that any
<br />and all actions, claims, suits or proceedings arising out of or relating (directly or indirectly)
<br />to this EQUIPMENT AGREEMENT shall be tiled and litigated only in courts located in
<br />Muscogee County, Georgia , and such courts shall have exclusive jurisdiction over any
<br />action, claims, suit or proceeding arising out of or relating (directly or indirectly) to this
<br />EQUIPMENT AGREEMENT. If Merchant brings legal action against GLOBAL
<br />PAYMENTS for any reason, Merchant shall commence the action within one (1) year of the
<br />date the emor or the incident giving rise to such action occurred.
<br />28.18No delay or failure by either Party to exercise any right under EQUIPMENT
<br />AGREEMENT, and no partial or single exercise of that right, shall constitute a. waiver of
<br />fact or any other right, unless expressly provided herein.
<br />28,19Neither Party shall be responsible for the costs inured by the other for negotiating
<br />or implementing this EQUIPMENT AGREEMENT and Merchant shall be responsible for
<br />installation of the equipment.
<br />28.20The obligations of all Parties hereto incurred prior to the effective date of
<br />termination of EQUIPMENT AGREEMENT shall survive such termination.
<br />28.21 In the event that any portion of EQUIPMENT AGREEMENT shall be held invalid
<br />or unentbrecable for any reason, it is agreed that any invalidity or unenf irceability shall not
<br />affect the remainder of the same and the remaining provisions shall remain in full force and
<br />effect, and any court of competent jurisdiction may so modify any objectionable provision
<br />of the same so as to render it valid, reasonable and enforceable.
<br />28.22This EQUIPMENT AGREEMENT may only be amended or modified by a
<br />subsequent written agreement by and between the Parties hereto.
<br />28.23Merchant hereby represents that the entering into of this EQUIPMENT
<br />AGREEMENT has been duly authorized by Merchant and that this EQUIPMENT
<br />AGREEMENT constitutes a legal, valid and binding obligation of Merchant, and is
<br />enforceable against Merchant in accordance with its terms.
<br />28.24This EQUIPMENT AGREEMENT consttutes the entire understandings of the
<br />Parties as to the subject matter contained herein and supersedes all prior contracts,
<br />agreements and negotiations whether oral or written.
<br />Page 100f10 UNIVMERAGMT v22.0421
<br />
|