EQUIPMENT RENTAL AGREEMENT
THIS EQUIPMENT RENTAL AGREEMENT (AGREEMENT) is made of even date as the Merchant Application and Agreement (Merchant Agreement) by and between Nuvei and Merchant.
WHEREAS Merchant has entered into a Merchant Agreement with Servicer for the processing of payment card transactions;
AND WHEREAS Nuvei has agreed to rent the above-described processing-related equipment (Equipment) to Merchant;
NOW THEREFORE, the Nuvei and Merchant agree as follows:
RENTAL. Subject to the terms and conditions hereof, Nuvei hereby agrees to rent Equipment to Merchant for a monthly fee per item of Equipment, the whole as set forth above. Neither KEV nor Bank are a party to this Equipment Rental Agreement.
TERM AND TERMINATION. The term of this Agreement shall follow that of the Merchant Agreement, as defined in Section 5 of the Merchant Agreement, unless sooner terminated pursuant to this Section. Merchant may terminate this Agreement by providing no less than 30 days notice to Nuvei. For the avoidance of doubt, Merchants obligation to pay any outstanding fees or other amount hereunder shall survive termination of this Agreement for any reason. In the that this Agreement terminates for any reason, Merchant shall, within twelve (12) weeks of the date of termination, and at Merchants sole expense, return the Equipment to Nuvei in its original condition (save for normal wear and tear). If Nuvei does not receive the equipment within said timeframe, Merchant agrees to immediately pay to Nuvei the amounts corresponding to the unreturned Equipment $200 per terminal. All amounts are in US Dollars.
Terminal Maintenance Program. During the term of this Merchant Agreement, and provided Merchant is not delinquent in respect of any obligation hereunder, Nuvei shall repair or replace, at its option, all defective or damaged terminals sold or leased to Merchant (the Terminal Maintenance Program or TMP). Replacement terminals may be manufactured from new or refurbished parts; all such replacements will be functional equivalents of the replaced terminal. Merchant is responsible for ensuring that terminal is sufficiently packaged considering the condition of any defective or damaged terminal prior to shipment and bears the full risk of loss or damage for any terminal that is further made defective or damaged as a result of such terminal being improperly packaged upon shipment. To receive TMP services, Merchant must (i) notify KEV and Nuvei of such defect or damage to a terminal no later than 10 business days from discovering the defect or when the damage was discovered and provide its identification number and terminal serial number; (ii) describe the symptoms and causes of terminal problems to Nuvei; (iii) follow Nuveis instructions; and (iv) return the defective or damaged terminal to Nuvei no later than twelve (12) weeks from discovering the defect or when the damage was discovered. Replaced terminals become Nuveis property. Failure to return any replaced terminal within the aforementioned twelve (12) week period will result in a charge $200 per terminal. All shipping costs to return defective or damaged terminals shall be borne by Merchant. For the avoidance of doubt, any further costs including but not limited to cost of shipments of replacement terminals, terminal re-deployment, key injection costs shall be borne by Nuvei. There shall be no additional charges for deployment of replaced terminals to the Merchants. TMP does not cover (A) lost or stolen terminals; (B) damage caused by Merchants gross negligence ; (C) unauthorized modifications, use of incompatible devices or accessories, extreme ambient environments, fluctuation or surges of electrical power, electrical or magnetic interference, lightning, static electricity, fire, acts of God or other external causes; (D) equipment with serial numbers that have been altered, defaced or removed; (E) cosmetic damage having no effect on functionality; or (F) consumable parts, such as batteries. Merchant will be entitled to receive paper rolls upon request to Nuvei, while enrolled in the TMP. Costs for ground shipping shall be borne by Nuvei.
REPRESENTATIONS AND WARRANTIES OF NUVEI. NUVEI MAKES ABSOLUTELY NO REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF ANY EQUIPMENT AND EXPRESSLY DISCLAIMS SAME. INDEMNIFICATION. Merchant agrees to indemnify and hold Nuvei harmless from and against all claims, liability, damage, loss or expenses which may occur to or arise from the rented equipment, including any costs relating to collections and/or the return of such rented equipment.
LIMITATION OF LIABILITY: AMOUNT. IN NO EVENT SHALL NUVEI BE LIABLE TO MERCHANT FOR ANY LIABILITY, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, IN AN AMOUNT GREATER THAN THE WHOLESALE VALUE OF THE RENTED EQUIPMENT.
LIMITATION OF LIABILITY: DAMAGES. IN NO EVENT SHALL NUVEI BE LIABLE TO MERCHANT FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS AND REVENUE, LOSS OF DATA OR LOSS OF USE, ARISING OUT OF THE MANUFACTURE, SALE, SUPPLYING OR FAILURE OR DELAY IN SUPPLYING THE RENTED EQUIPMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
This Agreement, together with any documents to be delivered pursuant hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations, and discussions, whether oral or written, of the parties. Any terms used herein but not defined shall have the same meaning as is ascribed to such term in the Merchant Agreement. This Agreement shall be governed by and interpreted exclusively in accordance with the laws of the State of Arizona, whose jurisdiction the parties hereto irrevocably submit. All amendments to this Agreement must be in writing.
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