APPLICABILITY TO SERVICE AGREEMENTS. The Standard Terms and Conditions (hereinafter referred to as these “Standard Terms”) set forth herein shall apply to and govern all Service Agreements (hereinafter referred to as the “Service Agreement(s)”) between Crickler Vending Company, Inc. (hereinafter referred to as the “Operator”) and its vending and/or office refreshment customers (hereinafter referred to as the “Client”). In the event that there is a conflict between the terms of any applicable Service Agreement and these Standard Terms, then the terms of the Standard Terms shall govern.
OPERATOR SERVICES. During the Initial Term of an applicable Service Agreement (as said Initial Term is defined in the Service Agreement), or any renewal thereof:
Operator shall provide for the installation of its Equipment (as defined in the applicable Service Agreement) placed in designated service areas at the Premises (as defined in the applicable Service Agreement). Client agrees to accept the Equipment and to furnish adequate space, water, utilities, and utility outlets in such locations, and to provide Operator with reasonable access to its Equipment at the Premises. Client agrees to take preventative action reasonably requested in writing by Operator to prevent vandalism and theft.
Operator will maintain adequate liability insurance coverage for all products and its Equipment, vehicles and employees.
Operator shall be responsible for the selection of products to be vended or otherwise delivered and the determination of selling prices. Operator may adjust annually the Prices at a minimum rate equal to the then-current rate of inflation as measured by the consumer price index. In addition, the Prices are based, in part, on assumptions regarding factors, including the Client’s population and hours of operation, other conditions at the Premises, product costs, fuel costs, and the rate of applicable taxes and levies (“Factors”). If there are material changes in such Factors, Operator may, in its sole discretion, modify the Prices in a manner proportionate to such changes. Operator, in its sole discretion, may offer a discount for payments made in cash. The Prices referred herein shall be net of such cash discount.
Operator shall be solely responsible for the management, operation, maintenance, and repair of the Equipment at Client’s Premises. All Equipment, together with the contents thereof, are and shall remain the property of the Operator, and only Operator or its representatives may remove or replace Equipment at the Premises. If during the term of the Service Agreement all or part of the business conducted by Client at the Premises is moved to a new location, then Operator in its sole discretion shall determine whether to continue providing its services at the new location either directly or through a subcontractor or other assignee.
All persons employed by Operator shall be employees of Operator and neither the Operator nor any agent or employee of Operator shall be or shall be deemed to be an employee of Client. During the term of the applicable Service Agreement and for a one (1) year period after the termination of the Service Agreement, Client shall not, either separately or in association with others, directly or in directly, solicit any of the Operator’s employees to terminate their relationship with Operator or allow former employees of Operator to provide vending and/or office refreshment services to the Client in any manner.
CANCELLATION OF SERVICE AGREEMENT(S). The terms for cancellation or termination as set forth in the applicable Service Agreement are and shall be the exclusive manner by which either party to the Service Agreement may cancel or terminate such Service Agreement. In the event that the applicable Service Agreement provides that the Operator may terminate the Service Agreement if its business at the Client’s Premises becomes unprofitable, the Operator shall also have the alternative to elect, to (i) reduce commissions, if applicable, and/or (ii) reduce the amount of services and/or equipment to be provided hereunder or extend the term of the Service Agreement or otherwise restructure the economic terms thereof, the election of which must be made by thirty (30) days prior written notice to Client sent by certified mail. Any time thirty (30) days following the implementation of any of such economic restructuring of the applicable Service Agreement, the Operator shall have the right to determine in its sole discretion that its business thereunder continues to be unprofitable and to exercise its termination rights for unprofitability under the Service Agreement as provided therein.
FORCE MAJEURE. The parties to the applicable Service Agreement shall not be liable for failure to perform its respective part or obligation when such failure is the result of causes beyond its reasonable control, including without limitation fire, flood, strikes, industrial disturbances, accident, war, riots, insurrection, or similar occurrences. Operator shall not be obligated to provide services at the Premises of the Client if Operator reasonably believes that conditions at the Premises present a health or safety hazard to any of its employees.
BENEFIT. The applicable Service Agreement shall be binding upon the parties hereto and shall inure to the benefit of, and be binding upon, the respective successors and assigns of each party hereto. Operator and Client each have the absolute right, in their sole discretion, to assign their rights, benefits, and responsibilities under the applicable Service Agreement
NOTICES. All notices required by the terms of the applicable Service Agreement to be sent to the other party in writing shall be forwarded by certified mail, to the addresses indicated in the Service Agreement following the signature lines of the parties, or such other address as may be requested by a party thereto by notifying the other party in writing as provided herein.
RENEWAL OF SERVICE AGREEMENT(S). After the Initial Term of an applicable Service Agreement, the Service Agreement shall automatically be renewed for successive periods of the same duration as the Initial Term, unless notice of termination is given by either party to the other in writing by certified mail at least sixty (60) days prior to the expiration of the Initial Term, or the expiration of any subsequent extension thereof.
ATTORNEY’S FEES. In the event that Client wrongfully removes or allows to be removed any Equipment (as defined in the applicable Service Agreement), becomes delinquent in any payments due under the applicable Service Agreement, or otherwise defaults in any of the terms and conditions of the applicable Service Agreement and/or these Standard Terms, Client will be liable for all attorneys’ fees and any other costs incurred by Operator to enforce any of the terms of the Service Agreement and/or these Standard Terms or to collect any monies due under the applicable Service Agreement, whether or not litigation is instituted.
PAYMENT TERMS; LATE CHARGES. To the extend that the applicable Standard Agreement includes payment by Client to Operator for “free vend” and/or office refreshment services, Operator’s payment policy is cash on demand unless prior credit approval has been arranged. The payment policy for Client’s with approved credit is net thirty (30) days from the invoice date for the services and/or products delivered. Payments must be made at the address designated on the invoice or such other place as the Operator may designate. Amounts not paid on or before thirty (30) days from the invoice date shall be considered past due, and Client agrees to pay a late payment charge equal to the lesser of: (a) one and one-half percent (1.5%) per month, compounded, or (b) the maximum amount allowed by law, as applied against the past due amounts. Client must give Operator written notice of a dispute with respect to Operator charges or application of taxes within ninety (90) days of the date of an invoice, or such invoice shall be deemed correct and binding on the Client.
DISPUTE RESOLUTION; GOVERNING LAW. Client and Operator agree to meet and confer in good faith to resolve any issues or disputes that may arise under the applicable Service Agreement. Except to the extent that injunctive, equitable or emergency relief may be necessary to enforce the terms of any applicable Service Agreement, any controversy or claim arising out of or relating to the Service Agreement, or the breach of the Service Agreement, shall be settled by binding arbitration in Rochester, New York, pursuant to the Expedited Procedures of Commercial Arbitration before the American Arbitration Association. The applicable Service Agreement(s) and these Standard Terms shall be construed in accordance with and governed by the Laws of the State of New York, without giving effect to its provisions regarding choice of laws.
SEVERABILITY; HEADINGS. In the event that any court of competent jurisdiction shall determine that any provision of an applicable Service Agreement and/or of these Standard Terms shall be unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision wholly unenforceable, the remaining provisions of the applicable Service Agreement and/or of these Standard Terms shall nevertheless remain in full force and effect. The headings or captions of the various sections of any applicable Service Agreements and these Standard Terms are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions of the applicable Service Agreement or these Standard Terms.
PROVISIONS PERTAINING ONLY TO VENDING SERVICE AGREEMENTS WITH COMMISSIONS.
Commissions to be paid by Operator to Client, to the extent provided in the applicable Service Agreements, shall be based upon a percentage of Operator’s net receipts, excluding any applicable sales or usage taxes, returns, spoilage, recycling fees and container deposits, or some other mutually agreed upon basis (“Commissions”)
Commissions shall be paid monthly or quarterly in accordance with the Operator’s fiscal months or quarters, on or before the thirtieth (30th) day of the month following the end of the applicable fiscal month or quarter of the Operator on which the Commission is being paid, unless otherwise specifically provided in the Service Agreement. Clients with total monthly net receipts above One Hundred Dollars ($100.00) on average, or projected to be above $100.00 on average, will be paid Commissions on a monthly basis; in all other cases, Commissions will be paid on a quarterly basis
In order to ensure maximum production at each unit of Equipment provided pursuant to an applicable Service Agreement (the “Service Unit”), the parties agree that each Service Unit shall have a minimum of twenty dollars ($20.00) in weekly net receipts on average in any monthly reporting period (the “Sales Hurdle”) before Operator is obligated to pay Commissions on any net receipts over and above this weekly Sales Hurdle. If in any given monthly reporting period, a particular Service Unit does not achieve the Sales Hurdle averaged over such monthly reporting period, then no Commissions shall be due on the products sold in such Service Unit for that month. Either party to the applicable Service Agreement may address Service Units consistently producing less than the weekly Sales Hurdle by consulting with the other party on increased vending sales strategies such as relocating the Service Units to higher traffic areas, or examining changes in product mix to match demand at the Client’s location. Operator may from time to time adjust the Sales Hurdle to reflect prevailing economic and/or industry conditions by changing the amount of the weekly Sales Hurdle in these Standard Terms as posted on its website in accordance with the provisions for such modification in the applicable Service Agreement.
Operator shall be entitled to deduct from any monthly or quarterly Commission a fixed amount for waste or excess product cost, to be determined by Operator from time to time based upon operating averages in its business or based upon some other commercially reasonable formula (“Waste Adjustment”). Until such time as such determination or formula for Waste Adjustment has been published in these Standard Term’s on the Operator’s Website, the Operator shall be entitled to determine appropriate Waste Adjustments on a case-by-case basis based upon actual waste of product at the Client’s location.
If the Operator determines that based on industry standards there exists excess usage at a Client’s location of condiment products provided by Operator at no charge, then Operator shall have the right to offset its costs of any such excess usage of condiment products in any given month against any Commissions owed to that Client.
In the event that there are any receivables owed by a Client to Operator that have been unpaid and outstanding for more than thirty (30) days, Operator shall be entitled to offset any such delinquent receivables owed against any Commissions due to such Client. In the event that any portion or all of the vending sales are made on a debit card system pursuant to which the Client reimburses the Operator for such debit card charges, Operator shall be entitled to immediately deduct from any outstanding Commissions due to Client any amounts owed by Client for debit card reimbursements as they become due.