1. TERMS OF SALE By placing an order with ScentAir, Subscriber is (i) offering to purchase the service, (ii) representing that Subscriber is of legal age to enter into a binding contract, and (iii) representing that all information Subscriber provides to ScentAir in connection with such order is true and correct and Subscriber is an authorizer user of the payment method provided. Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms.
2. SERVICES / EQUIPMENT During the Term of this Agreement, ScentAir Technologies, LLC. (“ScentAir”) agrees to provide to the Subscriber environmental scent service by ScentAir™ (the “Service”). The Service is provided by means of an on-premise fragrance delivery system (the “Equipment”) that uses replaceable scent cartridges or containers (referred to collectively as “Scent Media”). Appropriate Scent Media shall be sent directly to Subscriber on as needed based on system consumption requirements unless otherwise stipulated in writing. The Equipment shall be provided by ScentAir to Subscriber. Subscriber shall have the continuous use of any such Equipment for the term of this agreement; however, such Equipment shall remain the property of ScentAir unless otherwise purchased pursuant to the terms of a separate Purchase Agreement.
In the event Subscriber provides ScentAir with at least forty-five (45) days’ written notice prior to Scent Media shipment, Subscriber may request a change to their scheduled fragrance selection to another fragrance available in ScentAir’s standard inventory without additional cost. If Subscriber fails to provide ScentAir with such written notice, and the request is received by ScentAir prior to Subscriber’s next scheduled Scent Media ship date, the Subscriber shall pay a fee in the amount of fifty percent (50%) of the then-current list price for the affected Scent Media. If Subscriber’s request is received by ScentAir after Subscriber’s Scent Media has shipped, and Subscriber wishes to replace the shipped Scent Media with another fragrance, Subscriber shall pay the then-current full list price for the affected Scent Media.
3. FEES AND PAYMENT TERMS All fees associated with the Subscriber’s use of the on-premise fragrance delivery system(s) are included within Subscriber’s custom plan and as such all payment requirements and restrictions apply unless otherwise stipulated and agreed to in writing by ScentAir.
4. TERM This Agreement shall remain in effect for an Initial Term of twelve (12) months from the Effective Date and shall be automatically renewed for Subsequent twelve (12) month terms (each a “Renewal Term”). The Initial Term and any Renewal Terms are collectively referred to herein as the “Term”. Either Party hereto may cancel the automatic renewal provisions of this Section by providing written notice to the other Party at least 30 days prior to the expiration of the Initial Term and thirty (30) days prior to the expiration of any Renewal Term.
5. PROVISION OF EQUIPMENT Subscriber shall not, directly or indirectly, sell, mortgage, pledge, or otherwise dispose of or encumber any Equipment provided by ScentAir. Subscriber shall adequately insure ScentAir owned Equipment against damage or loss and present evidence of such insurance to ScentAir upon request, and shall, upon expiration or earlier termination of this Agreement, promptly return to ScentAir all such Equipment in good condition (or pay the full replacement value thereof). Upon removal of the Equipment, ScentAir shall not be required to repair, replace or otherwise restore the Serviced Premises to their original condition.
6. MAINTENANCE AND CARE OF EQUIPMENT ScentAir shall maintain the ScentAir-owned Equipment during the term of this Agreement, exclusively limited to wear and tear resulting from ordinary and proper use of said equipment. Subscriber shall be responsible for any maintenance and on-site labor charges (as applicable) resulting from abnormal or misuse of the ScentAir-owned Equipment. Should Subscriber request service from ScentAir in such instances, Subscriber shall pay ScentAir’s then current repair charge rates. ScentAir’s obligations under this Section are in lieu of all other warranties, express or implied relating to the Equipment, including implied warranties of merchantability and fitness for a particular purpose. Except for ScentAir’s maintenance obligations as set forth herein, Subscriber shall indemnify ScentAir and hold it harmless from and against any and all losses, claims, and expenses relating to the Equipment provided hereunder to Subscriber, including without limitation, losses caused by accidental fire, theft, or misuse of the Equipment. Subscriber shall provide adequate electrical outlets and power for the Equipment. Maintenance for Purchased Equipment will be provided upon Subscriber’s request at ScentAir’s then current repair charge rates.
7. INDEMNIFICATION Subscriber shall hold and save ScentAir, its officers, agents, and employees, harmless from liability of any kind, including all claims and losses accruing or resulting to any other person, firm, corporation or direct or indirect organization furnishing or supplying work, services, materials, or supplies in connection with the performance of this contract, and from any and all claims and losses accruing or resulting to any person, firm, or corporation that may be injured or damaged by the contractor in the performance of this contract.
8. OTHER CHARGES AND FEES a. Subscriber shall pay any sales, use, excise, or other taxes or governmental charges (except income taxes) arising under this Agreement. b. Unless otherwise specified, all recurring charges and other fees invoiced and due hereunder are payable net 10. Any automatic payments established with, and initiated by, ScentAir, as well as initial invoices, are payable in advance. Late payments of fees and charges due hereunder are subject to interest charges not to exceed the maximum rate permitted by law. c. All shipments of Scent Media shall be F.O.B. ScentAir’s distribution facility. d. ScentAir reserves the right to increase the monthly service and equipment charges to Subscriber after completion of the Initial Term, such increase not to exceed eight percent (8%) in a one-year period. e. Subscriber shall pay all transactional fees related to procurement services utilized by the Subscriber. This shall include all fees, charges or other costs associated with the procurement process of the Subscriber where there is a technology or third party requiring payment by ScentAir to utilize these services. No cost associated with utilizing these services, technology, or systems will be paid by ScentAir and will be borne by the Subscriber entirely.
9. INTERRUPTION OF SERVICE ScentAir shall not be liable for any failure or interruption of the Service due to acts of God, strikes, power failures, emergencies, governmental action, action or inaction by the Subscriber, its employees, agents, invitees or any other cause beyond ScentAir’s control.
10. ASSIGNMENT This Agreement may not be assigned by Subscriber without the prior written consent of ScentAir, which shall not be unreasonably withheld. ScentAir, in its sole discretion, may assign the Agreement without the consent of Subscriber.
11. OWNERSHIP OF EQUIPMENT Unless otherwise stipulated in a separate purchase agreement, Subscriber acquires no ownership, title, property rights or interest in or to the Equipment, but acquires only the right of use in accordance with the provisions of this Agreement. Subscriber hereby irrevocably appoints ScentAir, and/or its agents and assigns, as Subscriber’s true and lawful attorney (and agent-in-fact) with power to execute, endorse the name of Subscriber upon and/or file any financing statements, certificates of title, affidavits, notices and similar instruments to reflect, as ScentAir deems appropriate, ScentAir’s, and/or its assigns, ownership interest in the Equipment.
12. REMEDIES UPON SUBSCRIBER DEFAULT Default in payment or violation of any terms of this Agreement by Subscriber shall cause the entire contract balance, including past due amounts, to become immediately due and payable to ScentAir as liquidated damages. In the event of such default or violation, ScentAir shall have the right to demand return of the Equipment and any Scent Media and discontinue the Service. If ScentAir is required to bring legal action to enforce the terms of this Agreement, all such legal fees, and any related costs incurred in connection with such action shall be borne by the Subscriber.
13. GOVERNING LAW; JURISDICTION This Agreement and any claim or dispute arising out of or related to this Agreement or the transactions contemplated hereby, whether in contract, tort or otherwise, shall be governed by and construed in accordance with the laws in effect in the State of North Carolina, without giving effect to its conflicts of law principles. Each party irrevocably consents and agrees that any legal action, suit or proceeding against either of them arising out of, relating to or in connection with this Agreement or disputes relating hereto (whether for breach of contract, tortious conduct or otherwise) shall be brought only in the federal or state courts of the State of North Carolina located in Mecklenburg County, and herby irrevocably accepts and submits to the exclusive jurisdiction of the aforesaid courts in personam, with respect to any such action, suit or proceeding. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, CLAIM OR PROCEEDING BROUGHT TO ENFORCE, DEFEND OR INTERPRET ANY RIGHTS OR REMEDIES ARISING HEREUNDER, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT.
14. GENERAL This Agreement constitutes the sole and entire understanding between parties with respect to the subject matter hereof and supersedes all prior conversations, representations, promises whether verbal or written. The provisions of this Agreement are severable; if any clause or provision shall be held invalid or unenforceable, in whole or in part, then such invalidity shall attach only to such clause or provision, or part thereof, and shall not affect any other clause or provision. ScentAir reserves the right to amend any portion of this Agreement with or without notice. It is the Subscriber’s responsibility to review all ScentAir policies frequently to ensure compliance.