This SUBSCRIPTION AGREEMENT (the “Agreement” or “Terms of Rental”) is by and between eProximityMarket (the “Company”) and the Customer (the “Subscriber”). For the purpose of this Agreement, the terms “Customer” and “Subscriber” will represent anyone who retains the services of eProximityMarket. The purchase of the Products by the Customer is governed solely by this Agreement which consists of the purchase terms and conditions as set out herein below. The Agreement shall be effective and binding on the Customer once the Customer places an Order for the Products through the Website or Sales Consultant.
EProximityMarket and the Customer may hereinafter be collectively referred to as the "Parties" and individually as a "Party".
1. SCOPE OF THIS AGREEMENT
The rental and use (the “Subscription”) of the beacon or beacons and the access to the cloud platform called “EPM”, (collectively, the “Products”), is governed solely by this Agreement and other documents, which may be executed by the Parties in this regard.
2. PURCHASE ORDER
This Agreement (“Agreement, “the Agreement”), dated as of the date set forth below, between eProximityMarket (“Company”, “the Company”) and the Customer (identified below) sets forth the terms and conditions for the loan of the products listed below (“Equipment”, “the Equipment”) by Company to Customer for the sole purpose of use of the Equipment. Customer hereby agrees that such Equipment loan shall be subject to the following terms and conditions. I understand this agreement is cancellable at any time with a written notice and agree to return all beacon device(s) to the Company immediately upon termination. If the Equipment is returned to the Company, Customer will owe nothing for the Equipment. If the Equipment is not returned to the Company, Customer will be invoiced and agrees to pay the then current retail sales price of the Equipment. Equipment returned to the Company must be in the same working and physical condition as it was at the same time the Equipment was delivered by the Company. To avoid the return being rejected, the following criteria must be fulfilled: (a) You must have the original packaging, if provided, both inside and outside; (b) All returns must be complete with all instructions, cables, warranty cards, etc. just as you received them; and (c) Product and packaging must be clean and without scratches or usage marks of any kind; please do not put labels on or write on the packaging. If the Equipment is not returned in such condition, Customer will be invoiced and agrees to pay the current retail sales price of the Equipment.
The Customer shall place an order on eProximityMarket or Sales Consultant for the Products it requires through eProximityMarket website, viz. www.eproximitymarket.com (“Website”) or local Sales Consultant. The Order shall contain delivery terms, including place and schedule of delivery and such other information as may be required to enable delivery. Once an Order is accepted by eProximityMarket, the terms thereof may not be varied, unless it is otherwise mutually agreed by the Parties. The Order shall be governed by the terms hereof and shall form a part of this Agreement. Unless otherwise specifically provided for in a Purchase Order, the terms and conditions of this Agreement shall prevail over any conflicting terms and conditions that may be set out in an Order.
The Customer shall pay for an Order either by credit card or wire transfer. If the Customer elects to pay via credit card, then: (i) the Customer will submit the credit card payment details at the time the Order is placed through the Website; or Sales Consultant and (ii) the Customer’s credit card will be charged for the Products and for shipping at the time of shipment of the Products. The Customers shall pay to the Company the Subscription fees owing for each given month on the monthly anniversary of this Agreement. For example, if this Agreement is signed on the 10th of the month, Subscription fees shall be billed on the 10th of all following months.
Unless stated otherwise, Customer shall be responsible for all sales, use, value-added, or other tax, fees, duties or charge imposed by any governmental entity. As required or beneficial, the Company may collect such taxes for submission to the appropriate authorities. Customer may present Company with valid tax exemption documentation, if applicable, at any time. Company will not provide Customer with any credits for any taxes invoiced and paid prior to the submission of the valid tax exemption documents. Customer shall indemnify Company against any fees, penalties, or costs incurred as the result of Customer’s failure to pay any amounts owed hereunder.
Once the payment pursuant to an Order is duly completed as set out in Clause 3 above, eProximityMarket will ship the Products to the Customer. Shipments of the Products shall be made FCA (Incoterms 2010) eProximityMarket’s or its affiliate’s facility (“Point of Origin”). Notwithstanding the foregoing, title to the Products and risk of loss will pass to Customer upon delivery to the carrier at the Point of Origin. The Customer acknowledges and agrees that the scheduled shipment dates mentioned in the invoice, if any, are purely indicative, and eProximityMarket shall not liable for any loss, damage or penalty on account of such delay.
5. ACCEPTANCE OF PRODUCTS
If the Products supplied by eProximityMarket do not function to according to its specifications and any documentation provided thereto, then the Customer may contact eProximityMarket via the contact information provided herein within 15 (fifteen) days of delivery of the concerned Product, failing which, the Products delivered shall be deemed accepted by the Customer. Accordingly, eProximityMarket may, at the Customer’s option, arrange for either: (i) replacement of the Product within a commercially reasonable time period; or (ii) a refund of the Product, less shipping costs. The Customer also agrees to pay for any damages to, or loss of, the rented equipment occurring during their time of possession or because of loss and or damage from improperly packing the returning equipment shipment. If the Products is not returned to the Company upon Termination of the Subscription, the Customer will be invoiced and agrees to pay the then current retail sales price of the Products.
6. INTELLECTUAL PROPERTY
All intellectual property rights in and to the Products, and eProximityMarket, including all, copyrights, trademarks, trade secrets or other proprietary rights therein shall be and remain the sole property of eProximityMarket.
7. WARRANTY DISCLAIMER
SUBJECT TO APPLICABLE LAW, ePROXIMITYMARKET DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON‐INFRINGEMENT. FURTHER, MOBSTAC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PRODUCTS WILL MEET CUSTOMER’S OR ANY THIRD PARTY’S EXPECTATIONS.
Each Party hereby agrees to indemnify the other, from and against, any and all claims, causes of action, and liabilities (including reasonable attorney’s fees) which arise directly from the other Party’s breach of this Agreement, applicable law, or, the other Party’s negligent or willful misconduct.
9. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR BUSINESS), HOWSOEVER ARISING, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED ABOUT THE POSSIBILITY OF THE SAME. FURTHER, EACH PARTY’S LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO ePROXIMITYMARKET.
10. EFFECTIVE DATE & TERMINATION
This Agreement will be effective as of the date hereof and shall remain valid unless terminated in accordance with this Clause 10. This Agreement may be terminated by either Party at any time, with or without cause, by providing receipt of a written notice to that effect. Notwithstanding anything stated herein and subject to Clause 6 above, the Customer will be entitled to access eProximityMarket through the Products provided no written notice has been given by either Party to terminate this Agreement.
11. MISCELLANEOUS PROVISIONS