By it’s authorized signature on any Metropark Quotations or Sales Orders, Customer agrees to the following terms and conditions:
1. Warranties and Representations. Customer hereby represents, warrants and agrees that: (i) it has the full right, power and authority to enter into this Agreement and to perform all of its duties and obligations hereunder; (ii) there are not any claims or litigation pending, or to the best of Customer’s knowledge threatened, which will impair, restrict, interfere or impede Customer from performing hereunder; (iii) that it is a valid, existing legal entity in its state of formation and that it is not prohibited or prevented from conducting business in accordance with the terms of this Agreement. Customer further acknowledges that Metropark Communications, Inc. is entering into this Agreement in reliance on the warranties herein made by Customer. Furthermore, Metropark Communications, Inc. warrants its labor and actions per this agreement for a 12 month period.
2. Complete Agreement. This Agreement sets forth the entire agreement with respect to the subject matter hereof and may not be altered, modified or changed in any way by the parties without the prior express written consent of Metropark Communications, Inc. and Customer. Further, this Agreement may not be assigned by Customer, by operation of law, or otherwise, without the prior written consent and approval of Metropark Communications, Inc. It is specifically agreed, by way of example and not by limitation, that the terms of any Proposal previously provided by Metropark Communications, Inc. regarding the subject matter of this Agreement shall be merged into and made a part of this Agreement and that any terms of any such Proposal inconsistent with the terms of this Agreement shall be considered void.
3. Governing Law. Customer and Metropark Communications, Inc. expressly agree that this Agreement shall be deemed to have been entered into and accepted in St. Louis, Missouri and shall be governed by and in accordance with the laws of the State of Missouri, for any and all purposes of jurisdiction and venue. Customer expressly consents and submits to the jurisdiction of the Courts of the County of St. Louis, State of Missouri for purposes of resolving any dispute or alleged breach involving the terms of this Agreement.
4. Preparation of Agreement. This Agreement is the joint work product of Customer and Metropark Communications, Inc. In the event of any ambiguity, no inference shall be drawn against any party by reason of document preparation.
5. Severability. In the event any parts of this Agreement are found to be void, the remaining provisions of this Agreement shall nevertheless be binding with the same effect as though the void parts were deleted.
6. Attorneys’ Fees. In the event of arbitration, suit or action (collectively ”Action”) instituted to enforce this Agreement, or with respect to this Agreement or any documents described in this Agreement, the prevailing party shall be reimbursed by the other party for any and all costs and expenses incurred in connection with the Action, including, but not limited to, reasonable attorneys’ fees at any hearing or trial and on appeal.
7. Payment Terms. 50/40/10 One-half of the total due and owing under the terms of this Agreement shall be paid by Customer at the time of execution and acceptance of this Agreement; 40% of the orginal total due shall be paid by Customer to Metropark Communications, Inc. at the time of delivery; the remaining balance and any additions shall be paid by Customer upon substantial completion of installation. In addition to all other available remedies, any payments not timely made shall bear interest at the rate of 1.5% per month except any amount(s) disputed in good faith. Payment can also be made per Metropark agreed Project Progress Payments, Metropark leasing agreement, 3rd party leasing company, or Vendor Consolidation Program payment. A 20% restocking fee on materials will be assessed on items being returned. Licenses and Keycodes are not returnable. A 5% fee will be assessed on all returned Credit Card purchases. Each quotation or sales order assumes that Customer will be paying via cash or company check methods, thus a 3.62% cash discount is affixed to each submitted quotation, sales order, and subsequent invoice. If customer pays by credit or other non-cash methods, the cash discount will be removed upon remittance of non-cash payment.
8. Support Activation. Once equipment is installed in good working order and default programming provided or scope of work is achieved, Metropark will be complete with the Installation process. Any modifications to the default programming of the equipment must be performed as indicated in the scope of work. If no scope of work is agreed to or needed, equipment will be considered fully installed when it is delivered or works in default status. Once equipment is delivered or installed Customer must provide final payment or remit remaining balances before any support can be activated. Metropark Support may consist of contracted monthly or annual support packages, reduced MinuteHelp support, or 30 day Post Install Free Support.
9. Remedies on Default. It is understood and agreed by Customer that in the event of any breach of the terms of this Agreement by Customer, Metropark Communications, Inc. shall have the right to retake possession of any and all products described in this Agreement; it being agreed and understood that all such products are considered removable items and are not considered fixtures by Customer and/or the owner of any property in which such products are delivered and/or installed. It is further understood and agreed that until full and final payment is made by Customer to Metropark Communications, Inc., all products which are the subject matter of this Agreement remain the property of Metropark Communications, Inc. for purposes of ownership only (it being agreed and understood by and between Customer and Metropark Comm. that the duty to insure such products shall be borne solely by Customer commencing on the date of the delivery of such products to Customer).
10. Acknowledgment. Customer and Metropark Communications, Inc. acknowledge and agree that: (i) they fully understand the right to discuss all aspects of this Agreement with legal and personal advisors and counsel of their choice; (ii) to the extent desired, they have done so; (iii) they have carefully read and fully understand all of the provisions of this Agreement; and (iv) they have voluntarily entered into this Agreement.
(It is advised that Customer print these Terms & Conditions out to a local printer, for later Customer review and records)