VLINK™ Terms & Conditions
This Agreement (“Agreement”) is made between you, whether personally or on behalf of an entity (“customer”) and Woodstream Corporation, a Pennsylvania corporation [d/b/a Victor VLINK™ Pest Network] (the “Company”) effective as of the date of this transaction.
Background
The Company sells mouse traps and rat traps (“Traps”) and offers ongoing monitoring services in connection with the Traps sold to its customers. Customer desires to purchase from the Company the Traps identified below and the monitoring services offered by the Company and the Company agrees to sell and provide the foregoing goods and services to Customer, in accordance with the terms of this Agreement.
By placing an order with us, you are i) offering to purchase a product and service, (ii) representing that you are of legal age to form a binding contract, (iii) representing that all information you provide to us in connection with such order is true and accurate and you are an authorized user of the payment method provided, and (ix) that you have authorized purchasing authority within your organization.
If Customer has selected the “Pay in Full” payment option, the entire Trap Order Price shall be due to the Company in full at the time of purchase. If Customer has selected either the 12-Month Installment Plan or the 24-Month Installment Plan, then the Trap Order Price shall be paid by the Customer to the Company by paying the Trap Monthly Payment on the Trap Payment Due Date each month until the last Trap Monthly Payment is paid on the Final Payment Due Date. Customer agrees to make all payments on time in accordance with the Payment Schedule of monthly installments. Any failure of or issues related to the Monitoring Services (or the related Gateway) shall not obviate or vitiate Customer’s payment obligations relating to the Traps.
1. Gateway Monitoring Service. Customer agrees to subscribe to the Company’s Gateway Monitoring Service (the “Monitoring Service”). The Monitoring Service includes access by Customer to Company’s proprietary mobile and web-based monitoring applications, along with provision of third party cellular data equipment (the “Gateway”) to be installed by Customer at Customer’s premises.
For the Monitoring Service, Customer agrees to pay as follows, on a “per Gateway” basis :
Option #1 Plan:
Payment per Gateway due on Effective Date: $200.00 (“Gateway Charge”)
Monthly Payment per Gateway: $30.00 (the “Service Fee”) Number of Payments: 12
Option #2 Plan:
Payment per Gateway due on Effective Date: $0.00 (“Gateway Charge”)
Monthly Payment per Gateway: $35.00 (the “Service Fee”). Number of Payments: 36
The first monthly Service Fee payment is due on the Effective Date and monthly payments will continue to be due each month during the Monitoring Term, in advance, on the same day of each succeeding month, unless agreed upon otherwise, until this Agreement is terminated or expires. The Company may increase the Service Fee at any time upon written notice to Customer. Company’s obligation to provide the Monitoring Service is expressly contingent upon Customer paying the Service Fee and Gateway Monthly Payment on or prior to the due date for such payment(s). If Customer fails to pay to the Company any amounts due to the Company when or prior to such payments becoming due (whether in connection with the Monitoring Services or its purchase of Traps), the Company may immediately, at its option, either terminate this Agreement or cease providing the Monitoring Service without notice to Customer and has no obligation to perform the Monitoring Service until Customer’s outstanding payment obligations are satisfied in full.
The initial term of the Monitoring Service (“Monitoring Term”) begins on the Effective Date and shall be: (i) for a minimum period of 12 months, if the Option #1 Plan is selected above; or (ii) for a minimum period of 36 months, if the Option #2 Plan is selected above. Thereafter, the Monitoring Term shall automatically renew on a month-to-month basis until cancelled by either party upon thirty (30) days prior written notice.
2. Installation. Customer shall be responsible for installation of the Traps and the Gateway (collectively with the Traps, the “Equipment”) and Company shall not be responsible for any condition created by Customer or any third party with respect to the installation, location of placement, maintenance (as applicable) or removal of any Equipment Customer shall carefully and properly test and set the Equipment immediately after installation and shall thoroughly test the Equipment as to all of its functions, to the extent possible, monthly during the Monitoring Term.
3. Title to the Equipment. Title to the Equipment will remain with Company until such time Customer has paid Company in full for all Traps and has paid all Service Fees through the Monitoring Term. Until such time, Customer will have no right, title or interest in the Equipment except as expressly set forth in this Agreement. The Equipment will remain at Customer’s principal place of business and will not thereafter be removed from such location without the written consent of Company.
4. Maintenance. Customer is solely responsible, at its cost and expense, to maintain insurance on the Equipment and for all maintenance of the Equipment. Company is under no obligation whatsoever to provide repairs or maintenance to any Equipment except as required under express written warranties provided to Customer by Company upon delivery of the Equipment or otherwise except on the terms and at the then prevailing rates charged by Company. If repairs or maintenance service is requested by Customer, Company will charge Customer for such services separately from this Agreement at such rates and payment therefor will be due and payable upon completion.
5. Late Payments. In the event any payment due hereunder is more than thirty (30) days delinquent, Company may impose and collect a late charge on the amount of the delinquency at the maximum rate permitted by law, but not greater than eighteen percent (18%) per annum.
6. Service Interruptions; Force Majeure. Company is not responsible for interrupted or impaired Monitoring Service caused in whole or in part by Customer’s location of the Equipment on its premises and/or caused by Customer having less than the number of Gateways or Customer’s premises as may be recommended by Company. Furthermore, Company shall not be liable to Customer or any third party for any delay, interruption or stoppage in the Monitoring Service or any loss, damage or injury sustained as a result thereof for any reason, including interruption due to malfunction of Equipment, necessary service or repairs, or due to or caused by strikes, walk-outs, riots, floods, earthquakes, fires, acts of God or nature, power failures, insurrection or any other cause beyond the control of Company (“Force Majeure Event”) and the same shall not relieve Customer of its payment obligations hereunder. Company will not be required to provide Monitoring Services to Customer while any such delay, interruption or stoppage is continuing, nor shall Customer be entitled to a refund or a rebate for Traps or Monitor Services provided hereunder as a result thereof except as otherwise authorized by the Company in a signed written instrument.
7. Warranty Disclaimer. EXCEPT AS SET FORTH OTHERWISE IN A WRITTEN INSTRUMENT EXECUTED BY THE COMPANY, COMPANY MAKES NO WARRANTIES OR GUARANTEES, EXPRESSED OR IMPLIED, IN CONNECTION WITH THE EQUIPMENT PURCHASED BY CUSTOMER HEREUNDER NOR WITH ITS PERFORMANCE OF THE MONITORING SERVICES AND, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Security. To secure Customer’s obligations hereunder, Customer hereby grants to Company a continuing first priority lien and purchase money security interest in and to all of Customer’s right, title and interest in and to the Equipment and all proceeds thereof, all supporting obligations related thereto, and all accessions to, substitutions and replacements for, and all profits and products of, each of the foregoing, and any and all proceeds of any insurance, indemnity, warranty or guaranty payable to Customer from time to time with respect to any of the foregoing (collectively the “Collateral”). The Collateral shall secure (1) the full and complete payment to Company of the entire Trap Order Price, Service Fees and all other interest, charges, fees and other sums due to Company hereunder, and all costs incident to the collection therefor and all such other sums and to the enforcement of Company’s rights hereunder; (2) future advances which may be made by Company for protection of the Collateral or otherwise; and (3) interest on any such funds. Customer hereby authorizes Company to perfect and evidence its security interest granted hereunder by filing a UCC-1 financing statement in favor of Company naming Customer as debtor thereunder.
9. Default; Remedies. The following shall constitute default (“Default”) hereunder: (i) if Customer fails to make any payment owing to the Company under this Agreement or any other agreement with the Company when due, or (ii) if Customer fails to fulfill any obligation or breaches any provision hereof and fails to cure the same, within ten (10) days after written notice from the Company, or (iii) if any proceeding, bankruptcy, receivership or insolvency shall be commenced by or against Customer or its property, or (iv) if Customer makes any assignment to the benefit of its creditors, or (v) if judicial liens have been secured against the Company and/or its property and have not released within a period of fifteen (15) days thereafter, or (vi) if Company shall reasonably believe that Customer’s financial condition has materially changed so as to affect its ability to perform its obligations hereunder. In the event of a Default, Company shall have the right, but not the obligation, to exercise any one or more of the following remedies:
a. To discontinue all Monitoring Services and accelerate all payments due to Company hereunder including all remaining payments due with respect to Traps and all Service Fees otherwise payable through the remainder of the Monitoring Term and immediately declare the entire balance to be due and payable in full, and to take all actions and institute such suits as may be required to collect all amounts due hereunder;
b. To take possession of all Equipment for which any portion of payment therefor remains unpaid and outstanding, where ever it may be located, without demand or notice, without any court order or other process of law, and without incurring any liability for any damages occasioned by such taking of possession, provided that possession may be obtained peacefully. In the event Customer refuses to allow entry upon the premises to secure possession of the Equipment, or otherwise refuses to turn over the Equipment, Company shall be entitled to seek and obtain a decree or court order granting entry upon the premises for removal of the Equipment, or compelling same to be turned over to Company, or providing for mandatory injunctive relief; or
c. To demand from Customer, all fees, costs and expenses (including, without limitation, reasonable attorney’s fees) incurred by Company as a result of the enforcement of any of Company’s rights hereunder and, immediately upon written demand therefor, Customer shall pay the demanded amount to Company.
10. Exclusive Remedy. In the event that any Monitoring Services provided by the Company hereunder are not performed in accordance with this Agreement, the Customer’s sole and exclusive remedy, and the Company’s sole obligation, with respect to such deficient services shall be for Customer to request a rebate in an amount equal to the monthly Service Fee paid by Customer for the month in which the deficient services were performed.
11. Indemnification. Customer agrees to and shall indemnify, defend and hold harmless Company, its affiliates (including, parent and subsidiary companies) and their respective officers, directors, owners, employees, contractors, representatives and agents (“Indemnitees”) from and against any and all claims, liabilities, losses, damages, suits, actions, costs and expenses (including reasonable attorneys' fees, court costs and any amounts paid in settlement) incurred by any Indemnitee arising out of or in connection with (i) personal injury or property damage caused by or relating to the use of any Device or the Monitoring Service, (ii) any acts or omissions of Customer or Customer’s officers, directors, owners, employees, contractors, representatives and agents amounting to negligence or willful misconduct or (ii) a breach of this Agreement by Customer.
12. Limitation of Liability. In no event shall either Company or Customer be responsible for any indirect, consequential, incidental, punitive or special damages of the other party or of any third party, even if such party has been advised of the potential for such damages and whether such damages arise in contract, negligence, tort (including death, personal injury or property damage), under statute, in equity, at law or otherwise. To the maximum extent permitted by law, in no event shall Company be liable pursuant to this Agreement for any amount that exceeds, in the aggregate, the total amount actually paid by Customer to Company for Traps purchased under this Agreement, if any, and for Monitoring Services rendered by Company under this Agreement, if any.
13. Additional Terms. This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, understandings and agreements of any nature whatsoever, whether oral or written, with respect to the subject matter hereof. No amendment, waiver or discharge of any provision of this Agreement shall be effective against any party, unless that party shall have consented thereto in writing. No waiver of a breach of any term or condition of this Agreement shall be construed to be a waiver of any succeeding breach. This Agreement shall be governed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes hereunder shall be subject exclusively to the state and federal courts in Pennsylvania and Customer hereby submits itself to personal jurisdiction in such courts. This Agreement and all terms and provisions hereof shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties. Company shall be permitted to assign this Agreement to any other person, firm, trust or corporation without notice to Customer and shall have the further right to subcontract any services to be performed by Company hereunder without notice to Customer. Customer hereby waives the right to all notice prescribed herein, including but not limited to, notice of default, termination or increase in rates of charges. In the event any of the terms or provision of this Agreement shall be declared to be invalid, inoperative or unenforceable for any reason, such covenant or portion shall be modified or adjusted to the extent necessary to cure the invalidity or unenforceability, and all other covenants or provisions shall remain valid and enforceable and shall remain in full force and effect. In any action under this Agreement, whether to collect unpaid fees or otherwise, Company may recover all costs of suit and other expenses in connection with the action or proceeding, including the cost of any reasonable attorney’s fees, paid or incurred by the Company.