ADDITIONAL TERMS AND CONDITIONS OF HARDWARE SALE
These terms and conditions form a part of the Agreement between the parties and specifies the obligations of Revel and Customer with respect to Purchased Hardware. Capitalized terms not defined herein will have the meanings ascribed to them in the Agreement. For the avoidance of doubt, the terms and conditions of the Agreement are applicable except to the extent a conflicting provision is set forth herein, in which case these terms and conditions shall govern.
“Apple” means Apple Inc.
“RMA” means returned material authorization.
2. General Terms.
2.1 – No Additional/Alternative Terms. Purchased Hardware will be identified in the applicable Order Form. No additional or alternative terms or conditions proposed by Client or any alteration to the Agreement, these terms and conditions or the applicable Order Form or other document submitted to Revel, will apply unless they are expressly accepted in writing by an authorized representative of Revel.
2.2 – DISCLAIMER AND CUSTOMER AGREEMENT TO PURCHASED HARDWARE MANUFACTURER/SUPPLIER TERMS. CUSTOMER UNDERSTANDS AND AGREES THAT REVEL IS NOT THE MANUFACTURER OR SUPPLIER OF THE PURCHASED HARDWARE. ACCORDINGLY, ALL PURCHASED HARDWARE IS SUPPLIED OR SOLD SUBJECT TO THE EXPRESS WARRANTY TERMS, IF ANY, SPECIFIED BY THE ORIGINAL SUPPLIER OR MANUFACTURER OF THE PURCHASED HARDWARE. ANY PURCHASED HARDWARE SUPPLIED TO CUSTOMER UNDER THESE ADDITIONAL TERMS AND CONDITIONS OF HARDWARE SALE IS SUPPLIED SUBJECT TO THE PROVISIONS OF THE SUPPLIER/MANUFACTURER’S TERMS AND CONDITIONS AND TO ANY ”PASS-THROUGH” TERMS AND CONDITIONS APPLICABLE TO CUSTOMER CONTAINED IN REVEL’S AGREEMENT WITH THE APPLICABLE MANUFACTURER OR SUPPLIER.* CUSTOMER AGREES TO ACCEPT AND ADHERE TO THE SUPPLIER/MANUFACTURER’S TERMS AND CONDITIONS FOR ALL PURCHASED HARDWARE AND TO ANY “PASS-THROUGH” TERMS AND CONDITIONS APPLICABLE TO CUSTOMER CONTAINED IN ANY AGREEMENT REVEL MAY HAVE WITH THE APPLICABLE MANUFACTURER OR SUPPLIER. REVEL MAKES NO EXPRESS WARRANTIES REGARDING THE PURCHASED HARDWARE, AND REVEL HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, GUARANTIES, CONDITIONS OR OTHER TERMS IMPLIED BY COMMON LAW, STATUTE, TRADE CUSTOM, COURSE OF DEALING OR OTHERWISE IN CONNECTION WITH THE SUPPLY OR SALE OF THE PURCHASED HARDWARE.
*WITH RESPECT TO EACH APPLE IPAD, IN ORDER TO TAKE OWNERSHIP OF SAME, CUSTOMER AGREES TO ACCEPT AND ASSUME THE LICENSE AGREEMENTS FOR THE SOFTWARE THAT WAS PRE-INSTALLED ON SUCH IPAD BY APPLE BEFORE PURCHASE BY REVEL.
2.3 – Inspection and Acceptance. Within two (2) days of receipt of Purchased Hardware, Customer will inspect all Purchased Hardware, and will notify Revel in writing if any Purchased Hardware is missing or was damaged in transit. If Customer fails to notify Revel of any damaged or missing Purchased Hardware within two (2) days of receipt, Customer will be deemed to have accepted the Purchased Hardware. Once Customer notifies Revel if any Purchased Hardware is missing or was damaged in transit in accordance with this Section 2.3, Revel will send Customer a return material authorization (“RMA”). Customer must also comply with the terms and conditions set forth in the RMA regarding return of the Purchased Hardware. If Customer does not comply with the terms and conditions of this Agreement and the RMA, Customer will be billed for the full replacement price of the Purchased Hardware, including shipping cost.
2.4 – Inspection and Acceptance. Within two (2) days of receipt of Purchased Hardware, Customer will inspect all Purchased Hardware, and will notify Revel in writing if any Purchased Hardware is missing or was damaged in transit. If Customer fails to notify Revel of any damaged or missing Purchased Hardware within two (2) days of receipt, Customer will be deemed to have accepted the Purchased Hardware. If Purchased Hardware is damaged in transit, Customer must notify Revel in accordance with this Section 2.4, request replacement of the Purchased Hardware and ship the damaged Purchased Hardware to Revel within five (5) days of receipt of such Purchased Hardware. Provided, Customer complies with the foregoing, Revel will ship the replacement Purchased Hardware and pay for the shipping cost using standard ground shipping, unless otherwise agreed by the parties. Customer must ship the damaged Purchased Hardware back to Revel, otherwise Customer will be billed for the full replacement price.
2.4 – Warranty Assistance
2.4.1 Warranty Claims. For a period of one (1) year after acceptance in accordance with Section 2.3, Customer may notify Revel if any Purchased Hardware supplied to the Customer is defective in quality or condition and Revel will then act in accordance with this Section 2.4.1 (a “Warranty Claim”). More specifically, upon receipt of notification of such a Warranty Claim from the Customer, Revel shall notify Customer whether, as a matter of supplier/manufacturer policy, the Warranty Claim must be handled directly with the supplier/manufacturer or indirectly through Revel. If the Warranty Claim must be handled directly between Customer and supplier/manufacturer, Revel shall provide contact information to enable the Customer to contact the supplier/manufacturer. In the event the Warranty Claim will be handled by Revel, then Revel will provide the Customer with a RMA for Customer to return the Purchased Hardware to Revel (or the supplier/manufacturer), and the Customer will return such Purchased Hardware to Revel (or the supplier/manufacturer, if so directed by Revel) in accordance with the terms and conditions of this Agreement, the RMA and the supplier/manufacturer’s policy on Purchased Hardware returns. No Purchased Hardware may be returned to Revel or the supplier/manufacturer without a valid RMA number displayed on the Purchased Hardware’s packaging. Any Purchased Hardware returned without a valid RMA number displayed on the packaging will be refused or returned. If Revel does not receive the original Purchased Hardware being returned, Revel will not be obligated to provide replacement Purchased Hardware to the Customer. Any Purchased Hardware returned pursuant to an RMA issued by Revel must be returned to Revel (or the supplier/manufacturer, if so directed) in accordance with the terms and conditions of this Agreement, the RMA and the supplier/manufacture’s policy on Purchased Hardware returns. Revel has no obligation to accept a return of Purchased Hardware if the Customer fails to comply with this Agreement, the RMA and the supplier/manufacturer’s policy on Purchased Hardware returns. Revel reserves the right to determine whether any Purchased Hardware is defective. Further, if Revel determines that the returned Purchased Hardware was damaged due to Customer’s negligence, misuse or abuse or that it is not defective, then the Customer will be notified and charged for the full price of the Purchased Hardware. After the expiration of the one (1) year period set forth in this Section 2.4.1, Revel will have no further responsibility for assisting with Warranty Claims and any claim with respect to Purchased Hardware must be handled directly between the Customer and the supplier/manufacturer of the Purchased Hardware.
2.4.2 Limitation. The Customer agrees that Revel’s sole liability to the Customer regarding any Warranty Claim is limited to the administration of such Warranty Claim with the Supplier/Manufacturer and is expressly contingent upon Revel’s ability to obtain a refund, credit or new replacement Purchased Hardware from the Supplier/Manufacturer.
2.4.3 Return Shipping. The Customer is responsible for all shipping charges it incurs in returning Purchased Hardware, and the Customer is responsible for the cost of shipping repaired or replacement Purchased Hardware to the Customer (unless the Supplier/Manufacturer’s warranty states otherwise). The Customer agrees that Revel will not be liable for any loss or damage to Purchased Hardware returned to Revel.
2.4.4 Non-Acceptance/Non-warranty Returns. Within thirty (30) days of receipt, Customer may return any unused, undamaged (i.e. in brand new condition) Purchased Hardware for any reason and obtain a full refund for the cost of the Purchased Hardware. Thereafter, except for Purchased Hardware returned pursuant to the terms and conditions of this Section 2, any returns are subject to Revel’s sole and absolute discretion and are subject to up to a one hundred percent (100%) restocking fee depending on the condition of the Purchased Hardware. For clarity, Revel has no obligation to accept returns of Purchased Hardware that are not in accordance with this Section 2. If Revel accepts any such return it may, in its discretion, consider the subject Purchased Hardware abandoned and/or repurpose or dispose of it or donate it to charity.
2.5 – Delivery, Title and Risk of Loss. Unless otherwise agreed to in writing, deliveries are made “EXWORKS” place of shipment (Incoterms 2010). Title and risk of loss will pass to Customer upon delivery of Purchased Hardware to Revel’s chosen carrier. The shipping dates specified in the applicable Order Forms are estimates only and are dependent upon prompt receipt of all necessary information from Customer. Revel will use commercially reasonable efforts to ship the Purchased Hardware on the date(s) specified in the applicable Order Form. If Customer requests expedited shipping of Purchased Hardware outside of Revel’s normal shipping time frames, an expedited shipping fee will be charged. Revel reserves the right to make deliveries in installments. Delay in the delivery of one installment does not give Customer the right to cancel other installments. Revel will be excused from performance and will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of Revel, including but not limited to, war (whether an actual declaration thereof is made), sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism or of any other public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of these terms and conditions or the Agreement or otherwise, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical or yield failures. In the event of any default by Customer, Revel may decline to make further shipments without in any way affecting its rights under these terms and conditions or the Agreement. Unless otherwise set forth in a writing signed by both parties, Customer will be responsible for all shipping charges applicable to Purchased Hardware that Revel ships to Customer or to Customer’s business Affiliates in connection with this Agreement, and Customer will insure all such Purchased Hardware during transit at its own cost.
2.6 – Security Interest. Customer grants Revel a security interest in all Purchased Hardware. The security interest granted under this provision is a purchase money security interest in the Purchased Hardware which shall terminate when all amounts due for the Purchased Hardware is received by Revel. Customer agrees to execute any document appropriate or necessary to perfect the security interest of Revel, or in the alternative, Revel may file these terms and conditions and the Agreement as a financing statement and/or chattel mortgage.
2.7 – Changes. Revel reserves the right, at its sole discretion and without notice, to discontinue, modify and/or replace or change any Purchased Hardware at any time prior to shipping so long as such changes or improvements do not materially affect the Purchased Hardware’s respective performance, operation or reliability.
2.8 – LIMITATION OF LIABILITY
2.8.1 EXCLUSIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL REVEL OR ANY SUPPLIER/MANUFACTURER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, COSTS OF DELAY, COSTS OF COVER, FAILURE OF DELIVERY, BUSINESS INTERRUPTION OR LOST, DAMAGED OR DISCLOSED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE) ARISING FROM OR RELATING TO THESE ADDITIONAL TERMS AND CONDITIONS OF HARDWARE SALE, REVEL’S SALE OF PURCHASED HARDWARE HEREUNDER OR THE FULFILLMENT OF PURCHASED HARDWARE HEREUNDER, REGARDLESS OF THE NATURE OF THE CLAIM, EVEN IF REVEL OR THE SUPPLIER/MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2.8.2 LIMITATIONS. THE CUMULATIVE, AGGREGATE LIABILITY OF REVEL AND THE SUPPLIER/MANUFACTURER FOR ALL CLAIMS ARISING FROM OR RELATING TO REVEL’S SALE OF PURCHSED HARDWARE HEREUNDER OR THE FULFILLMENT OF PURCHASED HARDWARE HEREUNDER, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO REVEL (EXCLUDING TAXES AND SHIPPING) BY THE CUSTOMER FOR THE PURCHASED HARDWARE GIVING RISE TO THE CLAIM. THE LIMITATIONS IN THIS SECTION 2.8 WILL APPLY WITHOUT REGARD TO WHETHER ANY REMEDIES IN THESE ADDITIONAL TERMS AND CONDITIONS OF HARDWARE SALE OR THE AGREEMENT (OR AN ORDER FORM OR SOW) HAVE PROVEN INEFFECTIVE OR HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
2.8.3 BASIS OF THE BARGAIN. THE PROVISIONS OF THIS SECTION 2.8 ARE ALL FUNDAMENTAL AND SPECIFIC REQUIREMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE CUSTOMER AND REVEL, AND REVEL WOULD NOT BE ABLE TO PROVIDE THE PURCHASED HARDWARE ON THE OTHER TERMS SET FORTH HEREIN WITHOUT EACH OF SUCH PROVISIONS.
2.9 Intellectual Property Rights. The Customer acknowledges and agrees that the Purchased Hardware is the intellectual property of the Suppliers/Manufacturers. Nothing contained herein shall be deemed to grant any license, right or title to such intellectual property to the Customer. The Customer will not remove, alter or destroy any form of copyright notice, proprietary markings, serial numbers, or confidential legends placed upon or contained within any Purchased Hardware.
2.10 Effect of Termination. Upon expiration or termination of the Agreement, Customer may retain possession of all Purchased Hardware for which Customer has made full payment, provided that Customer must cease using the Purchased Hardware as part of the Revel POS Platform and disable access to and/or de-install the Software, APIs and the Service.