Subscription Agreement

PARLEVEL SUBSCRIPTION AGREEMENT FOR HARDWARE AND/OR SERVICES

Definitions.
Agreement. In using the Parlevel Store and acquiring the Parlevel Hardware described hereunder, You
are required to review and accept a Subscription Agreement for Parlevel Services that such Parlevel
Hardware is bundled with. These T&C shall not govern credit card clearing services which are optional
and may be provided subject to Customer’ execution of a separate clearing agreement. Other T&Cs may
be annexed to this agreement as required at the moment of signing, and constitute altogether one entire
agreement.
Parties. This Agreement is signed between Customer (“You,” “Your,” and words of similar import) and
Parlevel Systems, Inc., a Delaware corporation (“We,” “Us,” “Our,” and words of similar import). By
signing this Agreement, the Customer making use of the Parlevel Store in this purchase of Hardware and
Services agrees to be bound by this entire Agreement and its Terms and Conditions (T&C).
Parlevel Hardware. As used in this Subscription Agreement and in the T&C, the “Parlevel Hardware”
may consist of:
1.
“Parlevel Box” – Our telemeter hardware or similar equipment, including antenna, MDB, and
DEX cables.
2.
“Parlevel Pay” – Our cashless hardware, including credit card bezel or similar equipment.
Here mentioned sometimes in a “combo” with the Parlevel Box or similar telemetry device due
to them being complementary.
3.
“Parlevel Kiosk” – Our self-checkout retail points of sale, mainly for use in Micro Market
applications.
Parlevel Services. As used in this Annex and in the T&C, the “Parlevel Services” may consist of:
4.
“VMS” – Our vending management system for remote management of vending machines and
enterprise planning.
5.
“Offline VMS” – Our VMS capabilities for vending machines that are offline (without telemetry).
6.
“OCS” – Our on-demand distribution system, mainly for office coffee service management.
7.
“Connectivity” - Our data communication service, used by each Parlevel Box or Parlevel Pay
Combo.
8.
“Cashless Clearing Services” – Our financial services whereas You appoint Parlevel as your
agent for clearing cashless transactions on your behalf and interact with a Merchant Acquirer
(Payments Processor).
9.
“Micro Market VMS” – Our VMS capabilities for remote management of Parlevel Kiosks and
enterprise planning.
10.
“Implementation” – Our hands-on support to aid recently signed-up customers with tasks
which may include onboarding, training, data input, hardware installation, system settings,
varied operational recommendations, etc.
TERMS AND CONDITIONS
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1.
Getting Started. Customer acknowledges that it is entering in a Services and Hardware (sometimes
collectively referred to as the Parlevel Solution) Sale agreement with Parlevel Systems Inc. which
encompasses certain Services and a number of physical devices or items purchased and paid for up-
front, Monthly Services Fees (including software, connectivity, and other Fees), and a Contract Term
(“Term”) as detailed in each and every Subscription Agreement to these T&Cs. The following details
Our responsibilities as well as Your responsibilities:
(a)
Our Responsibilities.
Services. We agree to provide to You a non-exclusive, non-transferable license for the term of this
Agreement to use the Parlevel Services in accordance with the terms of this Agreement. This includes
the use of the Parlevel Software, Connectivity Services for each Parlevel Box or Parlevel Pay device
to effectively connect to the cloud-based Parlevel System and effectively transmit corresponding data
in accordance with the terms of this Agreement.
Hardware. We agree to sell You the Hardware stated in the applicable Subscription Agreements for use at
Your operation, including but not limited to telemeters, cashless readers for your vending machines,
micro market kiosks and other ancillary equipment. You agree that hardware orders are non-
cancellable and hardware purchased is not returnable. In both cases of Services and Hardware, We
agree to provide a Project Manager (sometimes also called a Customer Success Manager) to be a
main point of contact for You within our organization, and coordinate customer support for the
Parlevel Services and Hardware in accordance with our then in effect customer support policy, as well
as any implementation and ongoing services that may be described in the Subscription Agreements
(the “Subscription Agreement” or “Subscription Agreements”) (the “Services”) at the rates and
according to the implementation schedule that may be set forth in a Subscription Agreement.
Additional Subscription Agreements for additional Services shall become a part of this Agreement when
signed by both parties.
The specific details regarding the configuration of the Parlevel Services, Hardware, and Training (including
for example any interfacing with a NAMA VDI compliant provider, or a merchant processor on Your
behalf) and/or any training to be provided to You by Us is set forth in the applicable Subscription
Agreement.
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2.
Your Responsibilities.
(a)
What You’ll Need to run the Parlevel Services at Your location(s):
(i)
Internet Access. The Parlevel Services can be viewed through any internet browser but We
recommended Google Chrome. Modem or Wi-Fi will work along with any desktop, laptop, or mobile
device. We recommend desktop or laptop computers for best results. The Parlevel Services can be
used anywhere at any time with an internet connection. This is also the case of the Parlevel Micro
Market Kiosk, which requires a LAN or wireless internet connection at its location. You must ensure
the kiosks have uninterrupted access to the Internet (recommended speed of at least 6 Mbps) for
them to work properly.
(ii)
Cellular Network Access. The Parlevel Hardware can connect to various cell phone carrier networks.
Make sure the machine where such hardware is to be used is located in a place with cell phone
network access and sufficient signal strength.
(iii)
Premises. You shall ensure that while any of Our employees, agents or representatives are on Your
premises, all legal and reasonable health and safety precautions are in place to protect such persons.
You agree to indemnify Us for any and all liabilities, damages, costs and expenses, including
settlement amounts and attorneys’ fees, arising out of Your breach of the foregoing covenant or Your
or Your employees’, agents’ or representatives’ negligence or willful misconduct.
(b)
Compliance with Laws. You agree to comply with all applicable laws regarding your purchase and
use of Our Services.
(c)
Project Management. Being the ultimate objective of this relationship the total adoption of a value-
adding solution for Your operation, You agree to name an individual from your company to be the
Project Manager for the successful roll-out of the Parlevel Solution. This individual will be in close and
frequent communication with a Parlevel Project Manager in order for both parties to be well aligned,
kick off efforts promptly, deploy the Solution, and ensure long term viability of this important project.
3.
Fees and Payment.
(a)
Hardware Fees. The Parlevel Store You are using explicitly mentions these products’ prices and
payment You must make to Parlevel before Hardware is to be provided. Such payments are up-front
when checking out of the Store, unless a different method of payment is chosen. In the case that You
use a leasing provider that pays Parlevel directly for these items, You will facilitate the process where
You, Parlevel, and the leasing company interact for goods payment and delivery.
(b)
Service Fees. Most Parlevel products You are able to purchase using the Parlevel Store are bundled
to a Service Subscription that You must agree to at Checkout. These subscriptions state the monthly
fees for contracted Services You are required to pay during and after the Term of this Agreement. All
such Fees for Core Services or other Monthly Fees by Connection will start the first month in which
the Services start.
(c)
Implementation. Next, the Subscriptions may also describe an “Implementation Schedule” and fees (if
any) for such Implementation (the “Implementation Fees”). Such Implementation Fees are based on
the Implementation Schedule and include initial implementation and training sessions at Your location
as well as travel and accommodation expenses for Our training personnel. You agree that in the
event that We are unable to complete the implementation of the Services on your machines in
accordance with the Implementation Schedule due to any of Your acts or omissions (including without
limitation delays, unresponsiveness or other hindrances to the timely implementation of the Services),
You shall nonetheless pay the Implementation Fees as if such implementation had been completed in
accordance with the Implementation Schedule.
(d)
Third Parties. Other services provided by third parties are neither billed nor invoiced by Parlevel.
Parlevel has placed indicative information, including pricing, in their corresponding section of the
Store but You acknowledge that the final pricing, conditions, and delivery those services are to be
agreed between You and the corresponding party.
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(e)
Additional Connections. Extra connections or units of Services exceeding amounts specified in the
Parlevel Store Checkout may be added to the Services and will abide by pricing specified in the first
Services Agreement signed between the parties. The fees for such will add onto Monthly Fees billed.
(f)
Taxes and Shipping Charges. You are responsible for all applicable taxes (including without limitation
sales, excise and other taxes other than taxes related to Our income) assessed on the Hardware and
Services provided hereunder. Implementation fees are non taxable. You are responsible for shipping
charges in connection with the shipping and handling of Hardware and parts bought by You under this
agreement.
(g)
All Additional Hardware. We can help You by discussing with You any additional hardware that You
might need to make the Parlevel Hardware and Parlevel Services run correctly. We might provide
hardware from third parties, and all costs associated with the purchase of such hardware will be Your
direct costs. We make no representations or warranties with respect to such hardware provided by
third parties.
(h)
Services Provided and Billed by Third Parties. Although complementary to the Parlevel Solution, You
may enter contracts with Third Parties that provide other Services (i.e. Merchant Processors for
cashless processing). You acknowledge those parties may bill you separately.
(i)
Invoice and Payment Frequency. You are signing this agreement as You are in the process of
checking out from the Parlevel Store and making an up-front purchase of Parlevel Hardware, for
immediate delivery, and for which you will receive a receipt. If Parlevel Hardware is being purchased
on a roll out schedule, We will continue to invoice you for Hardware units as their delivery month
comes up, for payment prior to delivery. We will also invoice You at the end of each calendar month
for the Services provided during such month. In the case of Communication Fees as well as
Communication plus Payment Gateway Fees, such fees begin the earliest of a) the first month when
a device communicates to the cell phone network for the first time, or b) the month when the grace
period ends, which is sixty days from when We get confirmation of delivery to You. Unless agreed
otherwise between the parties, You shall sign an ACH Recurring Payment Authorization Form that
Parlevel will provide and We will process an ACH debit transaction for the invoiced amount against
Your designated account on the tenth (10th) business day after the invoice date. Prior to processing
the initial ACH transaction against Your account, We will obtain all required information and
permissions from You in writing or other secure electronic format. Should you make it explicit that
You wish to pay with a Credit or Debit card, be it through our Billing section of the Parlevel System,
directly in contact with Us, or by providing your card information for Our recurring billing, You agree to
pay a 4% Convenience Fee on your total payment amount. If You have an issue with anything
represented on Our invoice, please contact Us immediately so that We can work with You to resolve
the issue long before Your payment is due. If You have signed up for Parlevel Pay Services and
Parlevel is the Clearing Agent of your cashless transaction funds, You authorize Us to offset your
Parlevel Invoices against Your cashless sales processed funds (more details on this are provided in
the Parlevel Cashless Clearing Services Agreement). If You have not paid Your monthly invoice more
than ten (10) business days past its due date, We reserve the right to suspend Your Services until
Your invoice has been paid in full. In the event that You have not paid Your monthly invoice sixty (60)
or more days past its due date, We reserve the right to terminate the Agreement as this is to be
considered a material breach.
(j)
Prepayment Credit. The Subscription Agreements may propose and outline certain options where You
may make Prepayments towards some or all of your Services with Parlevel in exchange for additional
Credit. The amount of Credit provided is a percentage of the overall payment and varies depending
on the amount pre-paid, as stated by the various options that may be described in a Subscription
Agreement. For a Payment that You make to be eligible for earning Prepayment Credit, your account
must be completely current (no outstanding bills) and such Payment must correspond to the amounts
outlined in the corresponding Subscription Agreement section. Such Prepayment Credit will reflect as
a negative balance in your Parlevel account and will be used to offset those Services charges in
question in future invoices from Parlevel.
(k)
Late Fees. Any payment made past its due date will be subject to a monthly late fee of 1.5% (or, if
less, the maximum rate permitted by applicable law), computed and compounded daily from the date
due until the date paid.
(l)
Minimum Fees. Each Subscription Agreement may specify if there are minimum monthly fees that this
contract entails as well as when does those start.
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(m)
Freight Charges, Property Transfer, Acceptance. Parlevel delivers the hardware being sold as per this
agreement with terms FCA the Parlevel office in San Antonio, Texas, USA. You are responsible for
freight to your chosen destination, and to any duties and taxes in the case of such address being
abroad. You must inspect all hardware as soon as You receive shipment and You will have five days
from receiving date to notify Us if there are any damages or defects. Otherwise, the hardware is
considered Accepted by You and from that point on aspects covered under Warranty can be claimed
as per Our Warranty Policy and Procedures.
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4.
Miscellaneous Terms and Conditions.
(a)
Term and Termination. This Subscription Agreement is effective on the latest date set forth on the
signature page hereto (Signature which may be captured electronically) and shall remain in effect for
the thirty six months. This agreement renews automatically for another period of One (1) year unless
You notify Us in writing 60 days prior the expiration date of Your desire to not renew. You will have the
right to terminate this Agreement for any reason provided that You notify Us of Your intention to
terminate in writing at least one hundred and eighty (180) days prior to Your intended date of
termination. If You terminate this Agreement, You accept to pay Us for all services that We provided
to You up to and including your effective date of termination, whereas monthly fees after notice date
may not be lower than the minimum fee specified in this Subscription Agreement and may also not be
lower than average of the three months preceding the date in which You notified us of Your desire to
terminate. Parlevel will have the right to terminate this Agreement for any reason by giving You 30
days notice, or with immediate effect in the event that any payment due to Us becomes more than
sixty (60) days past due. Either party may terminate this Agreement in the event of a material breach
of this Agreement by the other party.
(b)
Confidential Information. The Parlevel Services, along with other proprietary information belonging to
Us including the terms of this Agreement, is considered confidential and proprietary by Us and You
agree not to disclose this information to any third party or to employees of Your organization who do
not have a need to know this information. You acknowledge that We may use data that is onboarded
into the Parlevel Services from your machines and/or other connections in order to perform the
Services and communicate with You regarding your machines and the Services and to provide
aggregated non-personalized data to certain third parties. Notwithstanding anything else to contrary
contained herein, in no event shall any of the following be considered confidential information and the
foregoing confidentiality and use restrictions shall not apply to information that is (a) already known
and free of any restriction on the part of the receiving party at the time it is obtained, (b) publicly
available or (c) required to be disclosed by the receiving party by applicable law or court order,
provided that in such event the disclosing party shall give prompt written notice to the disclosing party
that receiving party is required to disclose such information and receiving party shall cooperate to the
extent practicable with disclosing party, at the disclosing party’s expense, with disclosing party’s
reasonable efforts to avoid or minimize disclosure of such information via a protective order or other
means.
(c)
Ownership of Intellectual Property. You acknowledge and agree that all intellectual property
contained in the Services is owned by Us and this Agreement does not confer any intellectual
property or other proprietary rights to You other than the limited license set forth above. You agree
not to reproduce, retransmit, disseminate, sell, assign, rent, sublicense, distribute, publish, broadcast,
circulate, demonstrate for commercial purposes, reverse engineer, disassemble, decompile, modify or
commercially exploit all or any portion of the Services (including any software or other intellectual
property rights imbedded therein) in any manner without Our express written consent, nor to use the
Services for any unlawful purpose or for any purpose contrary to the terms of this Agreement. You
agree to indemnify Us for any and all liabilities, damages, costs and expenses, including settlement
amounts and attorneys’ fees, arising out of Your breach of the foregoing covenant.
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(d)
Our Warranty and Your Sole Remedy. We warrant all products subject to this agreement according to
the Parlevel Hardware Warranty policy (attached to this agreement). In the case of Hardware
manufactured by third parties and sold by Parlevel, We pass along those products’ warranties to You.
We do not warrant that the use of Parlevel-sold hardware will be uninterrupted or error-free. Our sole
obligation towards You and Your exclusive remedy for any failure of Parlevel-sold hardware to
perform as warranted, is the correction, replacement, or refund, at Our option, of the nonconforming
Product. We do not and cannot warrant services provided by third parties to You. We do warrant all
services performed by Us under this Agreement will be performed in a professional manner in
accordance with industry standards. We do not warrant that the Parlevel Services will be
uninterrupted or error-free. Our entire liability and Your exclusive remedy for any breach of services
warranty by Us or breach by Us of any of Our other obligations under this Agreement will be, at Our
option, either: (a) re-performance of the affected services by Us; or (b) the return of such of the
amounts paid by You to Us under this Agreement reasonably required to recover Your direct loss
resulting from Our breach of warranty; provided, however, the amount to be returned will in no event
exceed the total amount paid by You in the last six months prior to this event. Any liability on Our part
will be conditional on Us having received timely written notice from You of a breach of warranty.
EXCEPT AS SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND
WITHOUT WARRANTY, INCLUDING ANY IMPLIED OR STATUTORY WARRANTIES OF
MERCHANTIBILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL
SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
(e)
Limitation of Liability. IN NO EVENT WILL WE BE LIABLE FOR CONSEQUENTIAL, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, OR ANY OTHER NON-DIRECT DAMAGES INCLUDING,
WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, FUTURE REVENUES,
COST OF CAPITAL, ANTICIPATED SAVINGS, LOSS OF BUSINESS REPUTATION, DATA,
GOODWILL OR OPPORTUNITY, LOSS OF INFORMATION OR ANY CLAIM OR DEMAND AGAINST
CUSTOMER BY ANY OTHER PARTY DUE TO ANY CAUSE WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, OUR OWN NEGLIGENCE), EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY HEREUNDER RELATED TO OR ARISING
UNDER ANY ASPECT OF THE PROVISION OF THE SERVICES TO YOU, REGARDLESS OF THE
FORM OF ACTION (INCLUDING, WITHOUT LIMITATION, OUR OWN NEGLIGENCE), SHALL NOT
EXCEED THE TOTAL AMOUNT PAID BY YOU TO US FOR SERVICES RENDERED UNDER THE
APPLICABLE SUBSCRIPTION AGREEMENT.
(f)
Governing Law; Waiver of Jury Trial. This Agreement will be governed by the laws of the State of
Texas, without reference to any conflict of laws rules. Any lawsuit or other claim arising out of or
relating to this Agreement and/or the activities contemplated hereunder shall be brought in the state
or federal courts sitting in San Antonio, Texas, and such courts shall have sole and exclusive
jurisdiction and venue with respect to any such action. EACH OF THE PARTIES HEREBY
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY SUCH ACTION OR SUIT.
(g)
Non-Exclusivity. This Agreement will not preclude Us from providing the Services to other third
parties.
(h)
Assignment, Resale, Distribution. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns. This Agreement shall not be
assigned by You and You may not delegate the performance of Your obligations hereunder without
Our prior written consent. We may assign this agreement to another party by notifying You in writing
and as long as such assignment does not affect the Services or breach other clauses in this
agreement. Unless specifically authorized by Us in writing, You may not sell, resell, or distribute the
Products and/or Services covered in this agreement.
(i)
No Solicitation. You agree that during the term of this Agreement and for a period of twelve (12)
months immediately following the period for which We or Our affiliates last performed services for the
You under this Agreement, neither Your nor Your employees, agents, or other affiliated persons or
organizations shall solicit, hire or engage, employees, consultants or subcontractors of Ours without
Our written consent.
(j)
Survival. Sections 3 and 4 shall survive the termination or expiration of this Agreement.
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(k)
Entire Agreement. This Agreement and any Subscription Agreements and/or appendixes or
addendums made a part hereof constitute the entire agreement and understanding, and supersede
any prior agreements or understandings, between You and Us with respect to the subject matter
hereof. These T&Cs may be amended by mutual agreement between the parties.
(l)
Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which, when taken together, shall constitute one and
the same instrument. This Agreement may be executed via electronic means and any electronically
signed document or reproduction of such document may be used in lieu of an original writing for any
and all purposes for which an original writing could be used. This Subscription Agreement, any other
document necessary for the consummation of the transaction contemplated by this Agreement may
be accepted, executed or agreed to through the use of an electronic signature, including Your action
of clicking on an “I Agree” button, in accordance with the Electronic Signatures in Global and National
Commerce Act ("E-Sign Act"), Title 15, United States Code, Sections 7001 et seq., the Uniform
Electronic Transaction Act ("UETA") and any applicable state law. Any document accepted, executed
or agreed to in conformity with such laws will be binding on each party as if it were physically
executed.