End User License Agreement
Vagabond Vending LLC (the “Company”) is the developer and owner of the Vagabond Application (defined by the software application, telemetry hardware, centralized data environment and all associated electronic code) and the Customer is in the business of operating a retail operation or using the Vagabond Application for some other purpose. The Customer desires to utilize the Application to assist in its business operation. The Company grants and Customer accepts a limited, non-exclusive license to access and use the Application solely for Customer’s internal business purposes under the following terms and conditions:
a) The Company retains ownership of the Application at all times and reserves all rights to it not expressly granted to Customer by this Agreement.
b) The terms of this license will govern any software upgrades provided by the Company that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. From time to time, the Company may release software updates to the version of the Application that was originally purchased. The Company will provide any such updates that it may release up to, but not including, the next major release of the Application, for free.
c) Customer may not and agrees not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Application. Any attempt to do so is a violation of the rights of the Company and its affiliates. Customer agrees, as a function of this Agreement, to enforce to the best of its ability, this restriction upon its users and employees.
d) Any content displayed by the Application is provided for informational purposes only and is not intended to be relied upon solely for revenue generation. To the extent that the Application makes available or links to third-party content, the Company makes no warranty that a user will not encounter content that may be deemed offensive, indecent, or objectionable. The Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such third party materials or web sites. The Company, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to any person or entity for any third-party services, third party materials or web sites, or for any other materials, products, or services of third parties.
e) The Company and its subsidiaries may collect, maintain, process and use diagnostic, technical, data content and related information, including but not limited to information about users, the system, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services related to the Application, and to verify compliance with the terms of this Agreement. The Company may use this information, as long as it is in a form that does not personally identify a Customer, to improve our products, to improve our support to partners and Customers or to provide or sell aggregate data related information to Company customers and partners.
f) Customer will defend, indemnify and hold the Company, its affiliates, employees, officers, directors and shareholders harmless against any damages and all related costs (including reasonable attorneys' fees) incurred in connection with claims made or brought by a third party based upon, resulting from or related to Customer’s acts or omissions.
g) Customer acknowledges and agrees that the Application is provided to Client AS IS. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF QUIET ENJOYMENT, DATA ACCURACY, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE.
h) Under no circumstances shall the Company be liable to Customer for any loss of use, interruption of business, lost profits, or for any indirect, special, incidental, or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict product liability or otherwise, even if the Company has been advised of the possibility of such damages. The Company’s aggregate cumulative liability to Customer shall in no event exceed the amounts paid to the Company by Customer for the Application license.
i) This Agreement shall be effective upon Customer’s service activation and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for a period of twelve (12) months if yearly option is chosen (the “Initial Term”), and will automatically renew for successive one-year periods (each a “Renewal Term”) unless, prior to thirty (30) days before the end of a term, either party gives written notice to the other that it chooses not to extend the Agreement, in which case the Agreement will expire on the last day of the current term. This Agreement shall be effective upon Customer’s service activation and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for a period of one (1) month if monthly option is chosen (the “Initial Term”), and will automatically renew for successive one-month periods (each a “Renewal Term”) unless, prior to ten (10) days before the end of a term, either party gives written notice to the other that it chooses not to extend the Agreement, in which case the Agreement will expire on the last day of the current term. The Company reserves the right to suspend or terminate Customer’s access to the Application at any time for any or no reason. Notwithstanding the foregoing, the provisions of this Agreement that by their nature survive suspension or termination of the Agreement shall so survive, including without limitation, sections (f), (g) and (h) and all provisions related to the protection of the Company’s intellectual property rights.
Payment Terms. In consideration for the Company providing Customer access to the Application, Customer shall pay the Company’s then-current standard fees. Payment for service activation must be made in full by credit card within 5 days of activation. Payment for each renewal term must be made in full within 5 days of the expiration of the current term. If and when an account increases the number of machines being tracked within a billing cycle, the credit card on file will be billed on a prorated basis for that partial cycle.
Vagabond One Rate Rental and Services Agreement
This rental and services agreement (“Agreement”) is made by and between Vagabond Rental & Services LLC (“Lessor”), and the customer utilizing the vgbnd.co website to order goods and services (“Lessee”). It shall be effective on the date that the order is placed on vgbnd.co (“Effective Date”).
WHEREAS Lessor desires to rent to Lessee, and Lessee desires to rent from Lessor, certain tangible property to include but not be limited to cashless readers, telemeters, machines and machine upgrades (jointly, “Equipment” and severally, “Unit”).
WHEREAS Lessor desires to provide other services, to include but not be limited to software, integration services and support services (“Services”), to Lessee and Lessee desires to utilize those Services.
WHEREAS Lessee owns and operates vending machines or retail stores and desires to utilize software provided by Vagabond Vending LLC to aid in the efficient operation of Lessee’s business.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto agree as follows:
Agreement. Lessor hereby rents to Lessee, and Lessee hereby rents from Lessor, certain Equipment and Lessee agrees to the terms of the related Services as outlined in the associated Schedules. It is understood by both parties that the exact requirements of Lessee cannot be known as of the Effective Date. Schedule A (Lessor and Lessee Obligations) outlines the amount of Equipment and Services that both the Lessor and Lessee agree are estimated to be required by the Lessee under this Agreement. Schedule C (Buyout and Surrender) outlines the terms of the Lessee terminating the Agreement. Throughout the deployment of Equipment and Services, both the Lessee and Lessor understand that the actual requirements may vary higher or lower and Rent will be impacted accordingly.
Term. The term of this Agreement shall commence on the Effective Date and shall expire when all Equipment is returned to Lessor in good working condition (with acceptable wear and tear) to a location designated by Lessor. (“Term”).
Rent and Activation. The monthly rent (“Rent”) for the Equipment and Services, as outlined in Schedule A, shall be paid in advance in monthly installments to begin on the Effective Date throughout the Term. The initial payment will be accompanied by an activation fee in the amount of one month’s rent. The initial Rent and activation fee will be processed using the Lessee’s credit card information on file at Lessor, which Lessee shall keep current at all times. Subsequent month’s rent will be processed using the Lessee’s credit card information on file at Lessor unless the Lessor has a credit on file resulting from the current month’s Transaction Receipts as described below. Lessor may levy a late payment charge equal to one percent (1.5%) per month on any amount that is ten days overdue.
Ownership and Encumbrances. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances for the entire Term. The Equipment is, and shall at all times be and remain, the sole and exclusive property of Lessor; and the Lessee shall have no right, title or interest therein or thereto except as expressly set forth in this Agreement. Should the Lessee intend to undergo a change of control or ownership for any reason, Lessee shall be and remain liable for the full performance of all obligations on the part of the Lessee to be performed under this Agreement prior to such ownership change.
Handling of Transaction Receipts With respect to those Units that enable electronic payment transactions through a cashless payment provider, Lessor will remit to Lessee all revenues received from the cashless payment provider (“Transaction Receipts”) less any deductions made by the cashless payment provider and less any outstanding Rent within ten days of the end of the month in which Transaction Receipts are collected from the cashless payment provider.
Use. Lessee shall use the Equipment in a safe and appropriate manner and shall comply with and conform to all national, state, municipal, and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment. LESSOR DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Software Subscription. The Equipment and Services are offered in conjunction with business operations software sold by Vagabond Vending LLC, with whom Lessee agrees to maintain an active subscription throughout the entire Term.
Repairs. Lessee, at its own cost and expense, shall keep the Equipment unaltered, in good repair, condition and working order and shall furnish any and all parts, mechanisms and devices required to keep the Equipment in good mechanical working order. In the event that a Unit stops functioning, Lessee, at its own cost and expense, will follow that Unit’s manufacturer’s Return Merchandise Authorization and Warranty procedure.
Loss and Damage. Lessee hereby assumes and shall bear the entire risk of loss and damage to the Equipment from any and every cause whatsoever. No loss or damage to the Equipment or any part thereof shall impair any obligation of Lessee under this Agreement. In the event of loss or damage of any kind whatever to the Equipment, Lessee shall replace it on their own or request that the Lessor replace it and debit the Lessee’s account accordingly.
Buyout or Surrender. Should Lessee wish to terminate this agreement before the end of the Term, they are free to do so in accordance with the penalties outlined in Schedule C (Buyout and Surrender).
Insurance. Lessee shall procure and continuously maintain adequate insurance against loss of and damage to the Equipment for any reason for not less than the full replacement value of the Equipment.
Indemnity. Lessee shall indemnify Lessor against, and hold Lessor harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorney's fees and costs, arising out of, connected with, or resulting from Lessee's use of the Equipment, including without limitation the manufacture, selection, delivery, possession, use, operation, or return of the Equipment.
Default. If Lessee fails to pay any Rent or other amount herein provided within ten (10) days after the same is due and payable, or if Lessee fails to observe, keep or perform any other provision of this Agreement required to be observed (including maintaining a constant data connection between each Unit and its network provider), Lessor shall have the right to declare the entire amount of Rent hereunder immediately due and payable without notice or demand to Lessee; to retain and consider the Buyout or Surrender penalty to be outstanding Rent; to sue for and recover all rents, and other payments, then accrued or thereafter accruing; to terminate this Agreement; and/or to take possession of the Equipment, without demand or notice, wherever same may be located, without any court order or other process of law. Lessee hereby waives any and all damages occasioned by such taking of possession. Notwithstanding any repossession or any other action that Lessor may take, Lessee shall be and remain liable for the full performance of all obligations on the part of the Lessee to be performed under this Agreement. All of Lessor's remedies are cumulative and may be exercised concurrently or separately.
Bankruptcy. Neither this Agreement nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Lessee, or if the Lessee is adjudged insolvent, or if Lessee makes any assignment for the benefit of his creditors, or if a writ of attachment or execution is levied on the Equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Lessee is a party with authority to take possession or control of the Equipment, Lessor shall have and may exercise the option to, without notice, immediately terminate the Agreement. The Agreement shall not be treated as an asset of Lessee after the exercise of said option.
Intellectual Property. Lessee acknowledges that the Equipment utilizes computer software, data, designs, code and configurations (“Software IP”) that is proprietary to Lessor and that this Software IP is protected by United States copyright laws. Lessee acknowledges that the Equipment utilizes hardware elements and processes that are proprietary to Lessor. Lessee shall not copy, create derivative works, reverse engineer, decompile or disassemble the Equipment.
Entire Agreement. This instrument constitutes the entire agreement between the parties on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the parties hereto.
Notices. Service of all notices under this Agreement shall be sufficient if given personally or by certified mail, return receipt requested, postage prepaid or electronic mail at the address hereinafter set forth, or to such address as such party may provide in writing from time to time.
If to Lessor: 641 S St NW 3rd Floor, Washington, DC 20001 or firstname.lastname@example.org.
If to Lessee: As entered into vgbnd.co during Equipment activation.
General Terms of the Agreement. Lessee shall not assign this Agreement or its interest in the Equipment without prior written consent of Lessor. Upon Lessor request, Lessee shall execute and deliver to Lessor such documents as Lessor shall deem necessary or desirable for purposes of recording or filing to protect the interest of Lessor in the Equipment. This Agreement shall be construed and enforced according to laws of the State of Delaware. Headings used in this Agreement are for convenience only and shall not be used to construe meaning or intent.
By activating Equipment on vgbnd.co, you are agreeing to the terms and conditions set forth in the preceding Vagabond One Rate Rental and Services Agreement and End User License Agreement. By agreeing to these terms, you are authorizing Lessor to charge the credit card used to activate Equipment on the Effective Date and on a recurring basis according to the terms provided above. You acknowledge that your monthly billing amount will increase if and when you add machines to your Vagabond VMS software account.
Schedule A (Lessor and Lessee Obligations)
This Schedule A is associated with the One Rate Rental & Services Agreement executed between Vagabond Rental & Services LLC (Lessor) and Lessee and, as of the Effective Date, is subject to all terms and conditions in the Agreement. As stated in the Agreement, this outlines Lessee requirements as best as can be estimated as of Effective Date.
Lessor Obligations. Along with adequate support from Lessee, Lessor will be responsible for the following:
Procurement of Equipment as outlined below
Delivery of all Equipment to Lessee
Integration of all machines into the Vagabond VMS platform
Ongoing support of the software's use
Ongoing management of and payment of data fees and transaction fees to Equipment providers
Lessee Obligations. Along with adequate support and assistance from Lessor, Lessee will be responsible for the following:
Payment of Rent
Installation of Equipment and/or after-market accessories
Providing warehouse, product, planogram, and machine location data for integration into the Vagabond VMS platform
Adherence to all obligations in the Agreement, including the maintenance and upkeep of Equipment
Lessee's monthly Rent for Equipment includes Equipment rental, provider data fees, Vagabond software subscription, and support services for the number of machines indicated by Lessee. This Rent does not include the activation fee, credit card transaction fees, Equipment replacement or repair charges, or additional accessories that may be required (e.g. high-gain antennas for low cellular service locations). Indicate the total number of devices you are receiving per type. The execution of this Agreement results in a charge equal to the first month's Rent and an activation fee equal to one month's Rent.
Additional Vagabond software subscriptions for machines with pre-owned or existing cashless or telemetry equipment can be added at any time for $4/machine/month. Activating fewer than 100 total Vagabond software subscriptions results in higher subscription rates for those additional subscriptions. Subscription-only activations are not subject to activations fees, the Term or Schedule C.
Schedule C (Buyout and Surrender)
This Schedule C is associated with the One Rate Rental & Services Agreement executed between Vagabond Rental & Services LLC (Lessor) and Lessee and, as of the Effective Date, is subject to all terms and conditions in the Agreement. As stated in the Agreement, this outlines Lessee requirements with regards to Buyout and Surrender.
Should Lessee wish to terminate this Agreement, they are bound by the penalties outlined below:
Buyout. If Lessee wishes for Rent obligation to cease on Equipment but does not return it in good working condition, Lessee is responsible for paying the following replacement costs.
If Buyout relates to Vagabond Insights: $135 per Unit
If Buyout relates to Traditional Credit Card Readers: $250 per Unit
If Buyout relates to Touchscreen Credit Card Readers: $370 per Unit
If Buyout relates to Vending Machines: $5,840 per Unit
Surrender. Lessee's Rent obligation on a particular Unit will cease when the Unit is returned in good working condition (minus acceptable wear and tear) to a location designated by Lessor.