DISPENSER RENTAL AND WATER/COFFEE SERVICE AGREEMENT Terms & Conditions of Sale
Scope. These Terms and Conditions of Sale (these “Terms”) together with the Dispenser Rental & Water Coffee Service Order Form (“Order Form”) signed by the Customer identified therein (“Customer”)(collectively, this “Agreement”) constitute the only agreement that governs the products, equipment, and services identified on the Order Form (all products, equipment, and services collectively, the “Services”) to be provided by Fontis Water Inc. (“Fontis”) to Customer. This Agreement supersedes and prevails over all prior agreements, communications, or any Customer terms and conditions regarding the Services, regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement.
Delivery Schedule. Bottled water and/or coffee will be delivered on a regular, scheduled, replenishment basis according to the delivery schedule designated by Fontis or as needed basis when requested by Customer.
Term. This Agreement begins on the date of Customer’s signature on the Order Form (the “Effective Date”) and continues for the Initial Term identified on Item 3 of the Order Form. If no Initial Term is shown in Item 3, then the Initial Term of this Agreement shall be one (1) year consisting of 12 billing periods. Upon expiration of the Initial Term, this Agreement shall automatically renew on a year‐to‐year basis consisting of 12 billing periods per year (the “Renewal Term”), until cancelled in accordance with this Agreement.
Invoicing & Payments. Fontis will send Customer an invoice for Services approximately every 30 days. Customer agrees to pay Fontis Water for all Services, plus applicable tax, and all other fees and charges as provided in this Agreement. These amounts are due by the payment due date specified on each invoice. Fontis may accept late payments, partial payments, or checks and money orders marked “payment in full,” without compromising any of its rights under this Agreement.
Payment by Credit or Debit Card. If the Customer has elected to make recurring payments by credit or debit card as indicated on the Order Form, Customer authorizes Fontis to make such recurring charge for each transaction against its credit or debit card account. Fontis Water may place an authorization hold on the Customer’s account to verify funds availability. Fontis shall not be liable for any fees or penalties imposed by the Customer’s financial institution, including fees for insufficient funds or over‐limit charges, in connection with such payments. Customer may change the method of payment upon written notice to Fontis or by calling Fontis Customer Service at 678‐494‐1981.
Title to Equipment. Water bottles, dispensers, coffee equipment, and related equipment shall remain the exclusive property of Fontis. Dispenser and coffee equipment rental payments do not apply toward the purchase of dispenser or coffee equipment.
Use of Equipment. Customer acknowledges that water or coffee can damage surfaces with which they come into contact and that leaks may occur from water bottles, dispensers or coffee equipment. Customer is responsible for selecting the location for placement of water bottles, dispensers or coffee equipment on its premises and any damage that occurs shall be subject to the limitations set forth in this Agreement.
Return of Equipment. Within fourteen (14) days following any termination of this Agreement for any reason, Customer agrees to return all water bottles, dispensers, coffee equipment, and related equipment provided by Fontis (“Equipment”) in good condition to Fontis’s office or to a Fontis representative. If Customer does not return the Equipment within 14 days of termination, Customer will reimburse Fontis reasonable costs of recovering the Equipment.
Other Fees. In addition to the payments in section 4 above, Customer agrees to pay the following fees in connection with this Agreement:
Late Fee & Return Payment Charges. A minimum late fee of $10.00 and no more than $25.00 will be charged for any payment which is past the payment due date. You agree to pay a returned check/debit card fee of $25.00 for any check or debit card that is returned unpaid.
Fuel Surcharge. Fontis reserves the right to charge, in its sole discretion, a Fuel Surcharge per delivery.
Bottle Deposit. If specified on the Order Form, Customers agrees to pay the Bottle Deposit. Bottle deposits are refundable, subject to the return of the empty returnable bottles in good condition, as determined by Fontis in its sole discretion, normal wear and tear expected. Charges and credits for unreturned or damaged bottles will appear on the monthly invoice.
Loss and Damage. Customer agrees to pay Fontis Water for any loss, theft, or damage for any cause whatsoever to any rented equipment provided by Fontis while in Customer’s custody, including but not limited to any dispenser, coffee equipment, or other equipment, excluding normal wear and tear. The amount charged under this subsection is limited to the replacement value of such equipment, as reasonably determined by Fontis.
No Return of Consumable Products. All consumable product sales are final and credit will not be issued for unused returned product.
Change in Terms. Fontis may change the terms of this Agreement, including pricing, fees, and charges, at any time, upon prior written notice to the Customer.
Cancellation by Customer. Customer may cancel this Agreement at any time, for any reason, by doing the following (as applicable): (i) providing written notice to Fontis Water at least thirty (30) days prior to the desired cancellation date, and (ii) if such cancellation date is not within the 30 day period prior to the end of the Initial Term, Fontis may charge Customer and administrative cancellation fee of $100.00 for the remaining equipment rental for the Initial Term set forth on the front of this Agreement, whichever is more, to compensate it for the additional administrative and logistical work that must be done to accommodate an early termination.
Default by Customer. Customer will be in default of this Agreement if Fontis does not receive a payment when due or if Customer fails to comply with any other term of this Agreement. If Customer does not resolve the default to Fontis’s reasonable satisfaction within 14 days after receiving written notice of the default from Fontis, Fontis may: (i) Cease providing the Services and/or (ii) terminate this Agreement, in which case, Customer shall immediately pay to Fontis the entire unpaid balance due and either an administrative cancellation fee of $100.00 or the remaining Fees for the Initial Term, whichever is more. The cancellation fee is intended only to compensate Fontis for the additional administrative and logistical work that must be done to accommodate an early termination. Customer will reimburse Fontis for all costs incurred in collecting any late payments, including, without limitation, the costs of litigation and reasonable attorneys’ fees.
Termination Upon Insolvency. Fontis may terminate this Agreement immediate if Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Warranty. Fontis warrants that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
Limitations. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 11(a), FONTS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (ii) WARRANTY OF TITLE, OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Third-Party Products. FONTIS DOES NOT MANUFACTURER THE EQUIPMENT PROVIDED TO CUSTOMER, IF ANY. FONTIS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Breach of Warranties Notice Requirement. Fontis shall not be liable for a breach of the warranty set forth in Section 12(a) unless Customer gives written notice of the defective Services, reasonably described, to Fontis within five (5) days of the time when Customer discovers or ought to have discovered that the Services were defective.
Remedies. Subject to Section 12(d), Fontis shall in its sole discretion either: (i) re-perform such Services or replacing defective water bottles, dispensers, coffee equipment and related equipment delivered by Fontis to the Customer; or (ii) within 30 days credit or refund the price of such Services at the pro rata contract rate. THE REMEDIES SET FORTH IN THIS SECTION 11(e) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND FONTIS’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a). Under no circumstances shall Fontis otherwise be liable to Customer or any other party for any monetary damages whatsoever in connection with this Agreement or the products or services provided by Fontis.
Limitation of Liability. IN NO EVENT SHALL FONTIS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT FONTIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IF, DESPITE THE LIMITATIONS CONTAINED IN SECTIONS 11 OR 12, MONETARY LIABILITY IS IMPOSED UPON FONTIS, IN NO EVENT WILL FONTIS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LESSER OF ACTUAL DAMAGES OR AN AMOUNT EQUAL TO THE TOTAL PAYMENTS MADE BY CUSTOMER TO FONTIS PURSUANT TO THIS AGREEMENT DURING THE THREE (3) BILLING PERIODS PRECEDING SUCH ASSESSMENT OF LIABILITY, AS REFLECTED IN FONTIS’S RECORDS. CUSTOMER WAIVES ALL RIGHTS TO BRING ANY CLAIM AGAINST FONTIS AS A CLASS MEMBER OR CLASS REPRESENTATIVE, NOTWITHSTANDING APPLICABLE LAW.
Indemnification. To the fullest extent permitted by applicable law, Customer agrees to indemnify, defend, and hold harmless Fontis and its directors, officers, agents, employees, affiliates, successors and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers) resulting from, arising out of, or occurring in connection with (a) Customer’s or its agents, guests, or family member’s negligence or misconduct, operation, or use of water bottles, products, dispensers, coffee equipment or related equipment provided to Customer under this Agreement, or (b) Customer’s other negligence, willful misconduct, or breach of this Agreement. This indemnification provision shall not apply to claims resulting directly from Fontis’s gross negligence or Fontis’s breach of this Agreement.
Confidential Information. All non-public, confidential or proprietary information of Fontis, including but not limited to: prices and prices quotes, discounts or rebates, other financial information, marketing strategies, new materials research, pending projects and proposals, propriety processes, research and development, technological data and prototypes, and supplier and vendor information disclosed by Fontis to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Fontis in writing. Upon Fontis’s request, Customer will promptly return all documents and other materials received from Fontis. Fontis will be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
Notices. All notices must be in writing and delivered by U.S. mail, certified mail or personal delivery or facsimile with written confirmation of receipt to the Customer address and to Fontis at the addresses shown on the Order Form. Customer agrees to notify Fontis Water promptly of a change in its address.
Force Majeure. Fontis shall not be liable to Customer for any damage, loss or nonperformance caused by government action, war, fire, explosion, flood, drought, strike, lockout, embargo, pandemic, act of God, or any similar cause beyond the control of Fontis Water, and in no event does this Agreement require Fontis to settle or resolve any labor dispute or disturbance.
Miscellaneous. This Agreement is the entire agreement between the Parties relating to the subject matter hereof and supersedes all other oral or written statements made by the Parties. No written modification or change to this Agreement shall be binding unless expressly approved in writing by Fontis. Fontis may choose not to exercise or to delay enforcement of any rights under this Agreement without compromising those rights. Fontis may assign this Agreement and any of its rights under it to a third party upon written notice to Customer. Customer may not assign this Agreement and any such assignment will be null and void. If any provision of this Agreement is held invalid or unenforceable, all other provisions will remain in full force and effect. Georgia law applies to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction. All disputes arising out of or in connection with this Agreement will be brought in the courts located in Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia, and the Parties consent to the jurisdiction of such courts. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.