Mynt Subscription Agreement
By completing this Order, you agree to terms of this Agreement as well as the Mynt General Terms and Conditions listed on the www.myntpos.com website (“Mynt Terms”) of which are subject to change from time to time at our discretion. The Mynt Terms as well as the terms listed within the title and/or description of each product or service your are purchasing or subscribing to during this checkout process are incorporated herein and considered to be part of this Agreement.
Term. The term of this Agreement is perpetual unless terminated per the terms of this Agreement.
Subscription Payments. You agree to pay the total monthly sum of all subscription based items listed on this Order (“Subscription Total”) for a set period of time not to exceed 36 months (“Term Length”). The actual Term Length may vary by product, and is listed in either the title and/or description of each product or service you are purchasing. If no Term Length is listed with the product or service, then it is assumed that the Term Length is 36 months. You agree that the Subscription Total may change from time to time due to service upgrades or downgrades if such service changes are agreed upon by both you and us. The first month’s payment will be charged during or after the completion of this Order with each additional monthly payment being deducted each following month via ACH, or other reasonable method as determined by us. Failure by us to properly initiate a payment does not preclude us from charging such accumulated fees at a later date and time of our choosing. If at any point a payment is failed to be paid, we reserve the right to disable the the software as we see fit.
Miscellaneous Payments. Throughout the term of this Agreement, you acknowledge that we may perform additional services, which are not included in this checkout process, which will incur a fee. This typically includes, but is not limited to services we provide which are not included in our standard support section of the Mynt Terms. You authorize us to initiate a charge via ACH, or other reasonable method as determined by us, to pay for these fees. The validity of such fees will be solely determined by us.
Ownership. Ownership of the Mynt System passes to you upon our delivery of the Hardware to you. Ownership of the Software at no time transfers to you. Instead, you are given the right to use the Software throughout the term of this Agreement.
5 Year Refresh. If this Agreement remains active for five (5) consecutive years or longer, commencing on the date you agreed to this Agreement, you will become eligible to replace your current hardware with new or like new replacement hardware (“hardware refresh”). The Hardware Refresh will consist of only the hardware components within your specific Mynt System. To receive a Hardware Refresh, you must request a Hardware Refresh in writing as well as sign an updated Subscription Agreement. You agree that the updated Subscription Agreement may contain updated pricing and additional terms and conditions beyond those that you have already agreed upon.
Termination. We may terminate this Agreement at anytime without further obligation. You may terminate this Agreement at anytime subject to a fee of 50% of your remaining obligation as related to your Subscription Total (“Termination Fee”). Specifically, the Termination Fee is calculated as 50% of your current Subscription Total multiplied by the number of months remaining on your Term Length which we have not received a payment. If multiple products or services have differing remaining Term Lengths, then the Termination Fee for each product or service will be calculated separately. Upon termination, we may use any reasonable means to collect the Termination Fee as well as collect any other outstanding payments subject to this Agreement. For purposes of this Agreement, failure by you to make a payment on or before a due date may be considered, at our sole discretion, an election by you to terminate this Agreement.
Personal Guarantee. You hereby personally, unconditionally and absolutely guarantee, and agree to be liable for your performance and the performance of the company listed on this Order (“Ordering Company”), as it relates to the obligations under this Agreement, including timely payment of any and all sums (including the Termination Fee) due to us. This personal guaranty applies in the event that the the Ordering Company fails to make payments on or before the due date, and/or the Ordering Company declares bankruptcy or applies for bankruptcy protection. You authorizes us to obtain your consumer credit report should we so choose and agree to cooperate in assisting us in obtaining such report by providing us with your social security number and date of birth upon request.
Assignment. This Agreement may not be assigned or transferred to any party, whether by operation of law or otherwise, without the prior consent of the other party; provided, that we may assign its rights to any affiliated company of ours, to a successor by merger, and to any purchaser of substantially all of the assets, and may collaterally assign its rights hereunder to any lender.
Governing Law & Disputes. This Agreement shall be governed by the laws of the State of Washington with jurisdiction in the appropriate state or federal court located in the City of Bellingham, Washington. We both agree to waive all objections and defenses of jurisdiction, improper venue, or inconvenient forum. We both agree to attempt to first resolve all disputes in an informal manner. In the event a solution via informal negotiation does not resolve the dispute, such dispute shall be submitted to a mediator located in Bellingham, Washington to whom is acceptable to the both of us. Neither party will unreasonably deny working with a mediator of good standing. We both agree to participate fully and in good faith in the mediation process, and agree not to delay any proceedings without reasonable cause. If after good faith efforts, the dispute cannot be resolved through mediation, it shall be submitted for binding arbitration in Bellingham, Washington under the rules of the Whatcom County Superior Court. Notwithstanding the foregoing, for any suit, action or arbitration proceeding commenced under this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs to be fixed by the court or arbitrator, including such fees and costs as may be incurred in any appellate or bankruptcy proceedings.
Limitation of Liability: IN NO EVENT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW SHALL WE, OUR SHAREHOLDERS, AFFILIATES, CONTRACTORS, SUPPLIERS AND AGENTS AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES (COLLECTIVELY THE “MYNT PARTIES”) BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, IN RESPECT OF LOSS OF PROFIT OR REVENUE, COSTS OF DELAY, LOSS OF TIME OR INCONVENIENCE OR COSTS OF PROCURING SUBSTITUTE PRODUCTS) EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE MYNT PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MYNT PARTIES’ TOTAL LIABILITY AND OBLIGATION IN THE AGGREGATE FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THIS AGREEMENT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE CAUSE OR FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED THE ACTUAL AMOUNTS PAID BY CUSTOMER TO MYNT UNDER THE APPLICABLE ORDER IN RESPECT OF THE PRODUCTS SUBJECT TO THE CLAIM. All disclaimers and limitations set forth herein shall apply regardless of the nature of any cause of action or demand (including, but not limited to breach of contract, breach of warranty, negligence, strict liability, tort or any other cause of action) and shall survive a fundamental breach or breaches and/or failure of the essential purpose of this Agreement or any remedy contained herein.
Legal Stuff. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original. Signatures transmitted by means of e-signature or e-mail attachment (e.g., PDF) shall be deemed valid execution of this Agreement, binding on the Parties. Any provision of this Agreement which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision of this Agreement, and the remaining provisions shall nevertheless remain in full force and effect. This Agreement shall be binding upon each of the parties and their respective heirs, successors and assigns. The headings in this agreement are for convenience only and shall not affect its interpretation.