These terms and conditions and the order form signed by customer (the “Order Form”) create a legally binding contract between customer once the customer agrees to be bound by clicking on the “I Agree” tab or otherwise assents to these terms (the “Customer”) and Hydration Labs, Inc. (“Bevi”) (this “Agreement”). Bevi and Customer shall each be individually referred to herein as a “Party” and collectively as the “Parties.”
Bevi has developed certain proprietary smart water and drink dispensing equipment (each, a “Bevi Machine”), and Bevi owns the entire right, title and interest in and to the hardware, software, firmware and all intellectual property rights incorporated therein and related thereto (together, “Bevi IP”);
Customer desires to lease from Bevi the Bevi Machines identified on the Order Form (the “Equipment”) and Bevi agrees to lease the Equipment to Customer, all under the terms and conditions set forth in this Agreement; and
Unless Customer has opted for self-service in the Order Form, Customer desires to have Bevi maintain the Equipment and to keep the Equipment reasonably stocked with concentrates (“Concentrates”), CO2 and filters (collectively, the “Consumables”) and Bevi desires to maintain the Equipment and to keep the Equipment reasonably stocked with Consumables, all under the terms and conditions set forth in this Agreement.
In consideration of the foregoing and the mutual covenants contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Equipment. Subject to Customer’s compliance with the terms and conditions of this Agreement, Bevi hereby leases to Customer and Customer hereby leases from Bevi the Equipment identified on the Order Form.
2. Lease Period. The lease period for each piece of Equipment leased hereunder shall commence on the Installation Date and continue for the term set forth on the Order Form (the “Lease Period”). The lease shall automatically renew on for the term length specified on the Order Form unless a Party informs the other Party in writing of its desire not to renew no less than thirty (30) days before the end of the then-current Lease Period.
3. Monthly Rental Fees. As rent for the leased Equipment, Customer shall pay to Bevi the monthly rental fees on the Order Form (the “Monthly Rental Fees”). All amounts due and payable to Bevi under this Section 3 shall be invoiced to Customer on a monthly basis starting on the Installation Date and payment shall be due within thirty (30) days after Customer’s receipt of each invoice, unless different payment terms are specified on the Order Form.
4. Taxes and Late Payments. Customer shall pay all sales, use, excise, personal property or other taxes (excepting state and federal income taxes and other taxes upon the “net income” of Bevi) that may be imposed on either Party as a result of this Agreement. All amounts owed to Bevi hereunder and not paid when due shall bear monthly interest after the due date at one and one-half percent (1.5%).
5. Consumables Replenishment. Unless Customer has chosen to self-service the Equipment as set forth in the Order Form, Bevi shall use commercially reasonable efforts to restock Consumables during the Lease Period subject to Section 7 below. In an event any Consumables are unavailable due to systemic shortages and/or supply chain disruptions, Bevi shall use commercially reasonable efforts to restock any unavailable Consumables with reasonable substitutes, if any.
(i) Consumables Usage. During the term of this Agreement and thereafter, Customer and its designees, agents and any third parties obtaining Equipment and/or Consumables from Customer or its affiliates, employees, representatives, officers, directors, designees and agents (together, “Representatives”) shall not use: (i) concentrates other than the Concentrates stocked by Bevi (or one of Bevi’s service providers) in the Equipment; and/or (ii) filters other than the filter models specified by Bevi in writing in the Equipment.
6. Maintenance and Repair. Subject to Section 7 below, Bevi shall use commercially reasonable efforts to maintain and repair the Equipment during the Lease Period. Customer shall promptly alert Bevi in writing of any issues impacting the functionality of the Equipment and Bevi shall use commercially reasonable efforts to promptly restore Equipment functionality.
7. Connectivity. Customer acknowledges and agrees that the Equipment must be connected to Bevi’s online portal at all times during the Lease Period (the “Bevi Portal”). At Customer’s option, Bevi shall provide cellular connectivity through which the Equipment shall communicate with the Bevi Portal in exchange for Customer’s payment of the fees set forth on the Order Form or Customer shall provide wireless internet connectivity through which the Equipment shall communicate with the Bevi Portal. In the event Customer provides wireless internet connectivity as set forth hereunder, Customer shall ensure that this connection is available at least 99% of the time (rolling monthly average) and that internet access parameters, including, but not limited to, network IDs and passwords are not changed. In the event Customer elects to have Bevi provide cellular connectivity as set forth hereunder, Customer shall make reasonable efforts to ensure that this connectivity is not impeded. Customer acknowledges and agrees that Bevi’s ability to replenish, maintain and repair the Equipment as set forth in Sections 5 and 6 above is entirely dependent upon the Equipment being connected to the Bevi Portal and assumes Customer has not elected to self-service the Equipment as indicated on the Order Form.
8. Access. Bevi shall have the right to conduct visits to Customer’s location(s) where the Equipment is installed on a reasonable basis and during normal business hours to restock Consumables and maintain the Equipment, unless Customer has chosen to self-service the Equipment as set forth in the Order Form.
9. Installation. Customer shall pay Bevi the non-refundable Equipment installation and set-up fees set forth on the Order Form for each piece of Equipment installed. The date that each piece of Equipment is installed shall be the “Installation Date.” All amounts due and payable to Bevi under this Section 9 shall be invoiced to Customer and payment shall be due within thirty (30) days after Customer’s receipt of each invoice. Bevi shall install the Equipment at the location(s) set forth on the Order Form.
10. Relocation of Equipment. Customer shall not and shall not permit others to move the Equipment from the location in which it is installed by Bevi without Bevi’s prior written consent in each instance. If Customer requires relocation of the Equipment, Customer shall first contact Bevi in writing so that Bevi can safely prepare the Equipment for relocation. Customer shall pay Bevi the non-refundable preparation and relocation fees as set forth on the Order Form. All amounts due and payable to Bevi under this Section 10 shall be invoiced to Customer and payment shall be due within thirty (30) days after Customer’s receipt of each invoice.
11. Use of Equipment and Permits. Customer shall exercise due care in its operation, use and maintenance of the Equipment. Customer shall not use, and shall not permit others to use, the Equipment in any manner that would contravene applicable laws or would contravene Bevi’s reasonable operational standards for the Equipment. Customer shall not and shall not permit others to alter or modify the Equipment.
12. Default; Remedies. A Party’s breach of any term or condition of this Agreement and said Party’s failure to cure said breach within thirty (30) days after written notice thereof shall be deemed a default hereunder (each, a “Default”). Upon a Default, the non-defaulting Party may terminate this Agreement upon ten (10) days prior written notice to the defaulting Party and pursue any other remedy available at law or in equity.
13. Return of Equipment. Upon termination of this Agreement for any reason, Bevi shall pick up the Equipment from Customer’s location(s). Unless Bevi Defaults, Customer shall be liable to Bevi for the full amount of the Monthly Rental Fees due for the duration of the Lease Period and for any other fees due hereunder. Customer shall pay Bevi for damage to the Equipment by misuse or modification on its part or on the part of its affiliates, employees, representatives, officers, directors, designees and/or agents (together, “Representatives”), excluding normal wear and tear. Customer shall bear the risk of loss, theft, damage or destruction of the Equipment due to Customer’s or its Representatives’ negligence or misconduct, and no loss, theft, damage or destruction of the Equipment shall relieve Customer of its payment obligations hereunder or to comply with any other obligation under this Agreement. Customer shall not deface the Equipment in any way, including but not limited to, the removal of any branding.
By Customer. Customer shall defend, indemnify and hold harmless Bevi and its affiliates, employees, representatives, officers, directors, designees and agents from any third party claims, lawsuits, causes of action or damages arising out of or relating to: (i) Customer’s or its Representative’s breach of this Agreement; (ii) injuries to persons or damage to property, including theft, resulting from Customer’s or its Representative’s acts or omissions; (iii) injuries to persons or damage to property resulting from use or operation of the Equipment, but only to the extent that any such injury or damage results from Customer’s or its Representative’s acts or omissions including, but not limited to, negligence; (iv) claims by Customer or its Representative’s for injuries or damages under workmen’s compensation laws; or (v) Customer’s or its Representative’s unauthorized use of the Equipment including, but not limited to, Bevi’s confidential information, hardware, software, firmware or other intellectual property rights.
By Bevi. Bevi shall defend, indemnify and hold harmless Customer and its affiliates, employees, representatives, officers, directors, designees and agents from any third party claims, lawsuits, causes of action or damages arising out of or relating to: (i) Bevi’s or its representative’s breach of this Agreement; (ii) injuries to persons or damage to property, including theft, resulting from Bevi’s or its representative’s acts or omissions; (iii) injuries to persons or damage to property resulting from use or operation of the Equipment, but only to the extent that any such injury or damage results from Bevi’s or its representative’s acts or omissions including, but not limited to, negligence; or (iv) claims by Bevi or its representative’s for injuries or damages under workmen’s compensation laws.
15. Security Interests in the Equipment. In no event shall Customer assert any ownership interest in or to the Equipment. Customer shall not grant or permit any person or business entity to assert a security or other interest in the Equipment. At all times during the Lease Period, Customer shall ensure that the Equipment is identified as being owned by Bevi.
16. Performance Warranties. Bevi warrants that (1) the services performed shall be of professional and workmanlike quality and (2) the Equipment, when used in accordance with Bevi’s user documentation current at the time of installation, shall substantially comply with the standard specifications for such Equipment during the Lease Period. As Customer’s sole remedy, and Bevi’s sole liability, for any breach of this warranty, Bevi shall promptly restore the Equipment to working order or if Bevi is unable for any reason to restore the Equipment to working order it shall promptly replace the Equipment with new Equipment. Bevi shall have the right to void this warranty in part or in its entirety if the Equipment is not shipped or transported in accordance with Bevi’s shipping requirements, is not installed by Bevi-trained technicians, is not used in accordance with Bevi’s documentation, is used in an environment not approved in the Bevi’s documentation, is not registered in the Bevi Portal and/or Consumables or other items not approved or specified by Bevi are used in the Equipment at any time. The foregoing warranty does not extend to any Customer’s water lines not installed by Bevi personnel. Bevi assumes no responsibilities for any damages to Customer’s water lines not installed by Bevi personnel.
17. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 16 ABOVE, BEVI IS PROVIDING THE EQUIPMENT AND SERVICES TO CUSTOMER ON AN “AS IS” BASIS. BEVI MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS, IMPLIED OR STATUTORY. IN PARTICULAR, BEVI EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND COVENANTS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
18. DAMAGES. IN NO EVENT SHALL BEVI OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, DIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED THIS AGREEMENT.
19. No Reverse Engineering. During the Lease Period and thereafter, Customer shall not and shall not enable or allow any of its Representatives to, directly or indirectly, modify, de-compile, reverse engineer, reverse compile or perform any similar type of operation on the Equipment or any software or hardware incorporated therein, in any fashion or for any purpose whatsoever. During the Lease Period and thereafter, Customer shall not and shall not enable or allow any Representative to, directly or indirectly, use any confidential information of Bevi to develop or create any product or materials that contain features or functionality that are similar in any way to any features or functionalities of the Equipment, Bevi’s intellectual property or Confidential Information, or for any reason whatsoever. During the Lease Period and thereafter, Customer shall prohibit its Representatives from taking any action which is or would be prohibited by Customer under this Agreement. During the Lease Period and thereafter, without limiting the foregoing, Customer shall take appropriate action by instruction or agreement with its Representatives, who are permitted access to the Equipment, to fulfill Customer’s obligations under this Agreement.
20. Title and Ownership. No title to or ownership of the Equipment or any software or hardware incorporated therein is transferred to Customer or to its Representatives under this Agreement. Bevi and its licensors own and retain all title and ownership of all intellectual property rights in the Equipment, all software or hardware incorporated therein, all documentation and related materials that are acquired, produced or shipped by Bevi or its designees under this Agreement, and all modifications and derivative works thereto that are made by Customer and/or its Representative’s or any third party. Customer agrees to assign and hereby assigns any and all such modifications and derivative works to Bevi, and Customer shall assist Bevi to further evidence, confirm, record and perfect such assignments, and to obtain, maintain, enforce, and defend any rights assigned. Bevi does not transfer any portion of such title and ownership, or any of the associated goodwill, to Customer or its Representatives, and this Agreement shall not be construed to grant Customer or its Representatives any right or license, whether by implication, estoppel or otherwise, except as expressly provided herein. Further, Customer shall take appropriate action by instruction or agreement with its Representatives who are permitted access to the Equipment to fulfill Customer’s obligations under this Agreement.
21. Confidential Information. During the term of this Agreement and thereafter, each Party shall: (i) treat as confidential all Confidential Information, as defined below, of the other Party, (ii) not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, (iii) implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication or misuse of the other Party’s Confidential Information and (iv) not disclose such Confidential Information to any third party except as shall be necessary by law and required in connection with the rights and obligations of such Party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the Parties shall use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement, but in no event less than reasonable care. Except as expressly authorized in this Agreement, neither Party shall copy Confidential Information of the other Party without the Disclosing Party’s (as defined below) prior written consent. “Confidential Information” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business strategies and practices, methodologies, trade secrets, know-how, technology, software, product plans, services, relationships with any third party, client lists and information regarding the Disclosing Party’s employees, clients, vendors, consultants and affiliates. Confidential Information shall not, however, include any portion of information which the Receiving Party can demonstrate by documented evidence is: (i) or becomes known or available by publication, commercial use or otherwise through no fault of the Receiving Party; (ii) known and has been reduced to tangible form by the Receiving Party at the time of disclosure by the Disclosing Party and is not subject to restriction; (iii) independently developed by an employee of the Receiving Party who neither had access to nor in any manner benefited from the Disclosing Party’s Confidential Information; (iv) lawfully obtained by the Receiving Party from a third party who has the right to make such disclosure to the Receiving Party; or (v) released, in writing, for public disclosure by the owner of the Confidential Information. The Receiving Party shall have the right to disclose Confidential Information of the other Party only pursuant to the order or requirement of a court, administrative agency, or other governmental body and only provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party shall disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Confidential Information so disclosed shall continue to be deemed Confidential Information. If a Party breaches any of its obligations with respect to confidentiality or use or disclosure of Confidential Information hereunder, the other Party is entitled to obtain equitable and injunctive relief in addition to all other remedies that may be available to protect its interest. Upon the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy, at the Disclosing Party’s option, all tangible copies of the Disclosing Party’s Confidential Information.
22. Insurance. Each Party shall maintain insurance against loss, theft, damage or destruction of the Equipment in an amount not less than the full replacement value of the Equipment. Each Party shall also provide and maintain comprehensive general all-risk liability insurance, including, but not limited to, product liability coverage against any and all loss or liability for damages either to persons or property or otherwise, which might result from or happen in connection with the condition, use or operation of the Equipment.
23. General Provisions.
23.1 Entire Agreement; Amendment. This Agreement (including the Order Form) is intended by the Parties as the final and binding expression of their agreement and as the complete and exclusive statement of its terms. This Agreement cancels, supersedes and revokes all prior negotiations, representations and agreements between the Parties, whether written or oral, relating to the subject matter of this Agreement. The terms and conditions of any purchase order or similar document or any master services agreement or similar document or indemnification agreement or similar document with or without a requirement for a certificate of insurance submitted by Customer or its building owners, managers or designees and executed by Bevi in any way connected to this Agreement shall not be binding upon Bevi regardless of what said other agreement states to the contrary. This Agreement may be amended only in writing duly executed by the Parties.
23.2 Assignment. Either Party shall have the right to assign this Agreement in whole or in part without the prior written consent of the other party whether by operation of law, change of control or otherwise upon providing prior written notice to the non-assigning Party. In the event of any assignment hereunder whether by operation of law or otherwise, the Party seeking assignment shall remain responsible for its performance and liable for its assignee’s performance hereunder. Notwithstanding any language to the contrary in this Agreement, Customer shall not assign this Agreement in whole or in part whether by operation of law, change of control or otherwise to a Bevi competitor without Bevi’s prior written consent in each instance.
23.3 Force Majeure. No Party to this Agreement shall be responsible for any delays or failure to perform any obligation under this Agreement (except for payment of fees for services rendered and Equipment leased) due to acts of God, strikes or other disturbances, including, without limitation, war, insurrection, embargoes, governmental restrictions, acts of governments or governmental authorities, global health emergencies or the like, and any other cause beyond the control of such Party. During an event of force majeure, the Parties’ duty to perform obligations shall be suspended, including Customer’s payment obligations (except for payment of fees for services rendered and Equipment leased).
23.4 Governing Law; Consent to Jurisdiction. This Agreement shall be governed in accordance with the laws of the Commonwealth of Massachusetts. All disputes under this Agreement shall be resolved by the state or federal courts in Boston, Massachusetts and the Parties each consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
23.5 Independent Contractor. In the performance of their obligations under this Agreement, the Parties shall be independent contractors, and shall have no other legal relationship, including, without limitation, joint venturers, or employees. Neither Party shall have the right or power to bind the other Party and any attempt to enter into an agreement in violation of this Section shall be void.
23.6 Notices. All notices, requests and other communication that a Party is required or elects to deliver shall be in writing and shall be delivered personally (provided such delivery is confirmed in writing), or by a recognized overnight courier service or by United States mail, first-class, certified or registered, postage prepaid, return receipt requests, to the other Party at its address set forth herein.
23.7 Severability. If one or more provisions of this Agreement, or the application of any provision to any Party or circumstance, is held invalid, unenforceable, or illegal in any respect, the remainder of this Agreement and the application of the provision to other Party or circumstances shall remain valid and in full force and effect.
23.8 Non-Waiver of Defaults. Any indulgence or waiver by any Party, express or implied, of any violation of any provision of this Agreement shall not be deemed to be a waiver of any subsequent violation of the same or any other provision hereof. Failure of any Party to declare any violation upon the occurrence thereof or any delay by any Party in taking action with respect thereto shall not waive such violation.
23.9 Section Headings. All section headings are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement.
23.10 Recalls. Customer shall cooperate with Bevi in connection with recalls, withdrawals and other safety matters related to the Equipment (each a “Recall”), including, but not limited to, providing: (i) written acknowledgement to Bevi of the Recall within twelve (12) hours of notification by Bevi; (ii) prompt written confirmation to Bevi that all Recall-related processes initiated by Bevi and provided to Customer have been followed by Customer; (iii) timely submittal of all Recall-related documentation to Bevi as reasonably requested by Bevi; and (iv) Bevi with reasonable access to the Equipment.
23.11 Designees. Bevi shall have the right to use designees to carry out its obligations under this Agreement.
23.12 Survival. The Parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination.
**END OF TERMS**