This Subscription Agreement (“Agreement”) is between Alpha Pos Services, Inc., an Illinois corporation (“Vendor”), and Customer, namely, whoever is identified as the Customer within Vendor’s order form (“Order Form”) regarding the software and equipment identified in the Order Form. Vendor and Customer are each sometimes referred to herein as a party and they are sometimes together referred to as the parties. Third-party or third parties mean one or more persons or entities other than Vendor and Customer. The date of this Agreement is the “Signing Date” as indicated by the Order Form.
1. Purpose of the Order Form and this Agreement
Vendor is a reseller of certain software, which Customer wants to use for its business as indicated by the Order Form. Vendor also leases and sells certain equipment for use with the software, which Customer wants to lease or purchase from Vendor as indicated by the Order Form. Therefore, the parties have entered into the Order Form and this Agreement, and Customer has entered into the license agreements with the third parties identified by the Order Form.
2. The Software
The software consists of two products, Focus POS Software (“FP Software”) licensed by Secret POS Systems, Inc. (“SPS”), and Shift 4 Payments software (“S4P Software”), licensed by Shift 4 Payments, LLC (“S4P”). Customer’s election whether or not to use the S4P Software is indicated by the Order Form. (The Focus POS Software and the S4P Software are together referred to as the “Software”. SPS and S4P are each referred to as a “Software Licensor”, and together are referred to as the “Software Licensors”.) Customer’s rights to use the Software are set forth within the license agreements entered into between Customer and the Software Licensors (either or both of which are the “End User License Agreements”. The Software functions as Software as a Service (“SaaS”) and on Customer’s computers. However, the particular functions of the Software, and fixes, updates, and changes to the Software, are all performed, determined, and implemented only by SPS or S4P, as applicable, and not by Vendor.
3. Acceptance of the Software and Purchase or Lease of the Equipment
Before signing the Order Form, Vendor demonstrated to Customer the functions of the Software designated by the Order Form (the “Designated Software”) as thoroughly as Customer desired. By signing the Order Form, Vendor thereby: (a) acknowledge and agrees that the Designated Software is suitable for the particular purposes of Vendor’s business, and (b) agrees to purchase or lease the equipment as designated by the Order Form (the “Designated Equipment”). Customer’s use of the Designated Equipment may be subject to licenses granted by third parties (each of those third parties is a “Third Party Licensor”), such as the operating system for the Designated Equipment and other third party software (each of that software is “Third Party Software” and each of those licenses is a “Third Party License”). If, as indicated by the Order Form, Customer is providing all the equipment for the Designated Software, that equipment is referred to as “Customer’s Equipment”. (The Designated Equipment or Customer’s Equipment is sometimes referred to in this Agreement as the “Equipment”.)
The Go-Live Date shall occur as follows:
a. After Customer signs the Order Form and the End User License Agreements, Customer shall have 21 days to inform Vendor of the particular functions Customer wants the Software to perform from among the functions that the Software is able to perform, including access of Customer’s employees to particular functions of the Designated Software, (the “Requested Functions”).
b. Vendor shall have a reasonable time to configure the Software to provide the Requested Functions
(“Configured”, “Configuration”, or “Configure”).
c. Within 7 days after Vendor informs Customer that Vendor has completed the Configuration, Customer shall contact Vendor to schedule an on-line review of the Designated Software to confirm Vendor’s completion of the Configuration (the “Review”). Customer shall make itself reasonably available to conduct the Review sometime during the 21 day period after Customer contacts Vendor to schedule the Review (the “Review Period”).
d. Customer may not disapprove the Configuration if the Review shows that the Designated Software provides all the Requested Functions, but during the Review Period Customer may request minor changes to the Requested Functions. If the Review indicates that Vendor did not complete the Configuration, or if Customer timely requests minor changes to the Requested Functions, Vendor shall have a reasonable time to additionally configure the Designated Software to provide the initial Requested Functions and the minor changes (also, (“Configured”, “Configuration”, or “Configure”) and the parties shall follow the above procedures to conduct an additional Review. If the changes Customer requests to the Requested Functions are other than minor, Vendor shall so inform Customer, and if Customer wants to proceed with those changes Customer shall pay Vendor its then customary charges to Configure those changes, Vendor shall have a reasonable time to additionally Configure the Designated Software, and the parties shall follow the above procedures to conduct an additional Review. Whether the changes Customer requests are minor or other than minor shall be determined solely by Vendor.
e. The following shall occur during the 30 day period after Customer approves the Configuration (the “Installation and Training Period”).
(a) Customer shall permit Vendor to install the Equipment at each location indicated by the Order Form (each of which is an “Equipment Location”) and to connect the Software and the Equipment to the SaaS Functions (the “Installation”).
(b) When Vendor informs Customer that the Installation is complete, Customer shall make its personnel available to Vendor for one day of training (the “Training Day”) to use the Designated Software and the Equipment (the “Training”) at the Equipment Location, on a date and time mutually agreed by Customer and Vendor.
(c) If the Installation is unsuccessful, Vendor shall have a reasonable time to complete the Installation, and the Installation and Training Period shall be extended by that same amount of time.
f. Customer shall be deemed to have waived the Training if Customer: (i) disapproves the Configuration even if Review shows that the Designated Software provides all the Requested Functions, (ii) does not schedule the Training within the Installation and Training Period, or (iii) does not cause all its necessary personnel to attend the Training. Vendor shall not responsible if Customer’s personnel are unable to operate the Designated Software after the Training and Vendor shall not be required to provide Customer with additional Training after the Training Day.
g. The “Go-Live Date” is the date on which the date on which Customer begins using the Designated Software for Customer’s business or the last day of the Installation and Training Period, whichever first occurs, except as otherwise provided by this Agreement.
h. On the Go-Live Date, Vendor’s technician shall be present at the Equipment Location to ensure that the Designated Software and the Designated Equipment are properly functioning and to make any minor changes to the Configuration that the Customer requests (the “Go-Live Services”). If the Go-Live Services indicate that the Designated Software and the Designated Equipment are properly functioning Customer shall begin paying Vendor the Subscription Fee starting on the Go-Live Date. If the Go-Live Services indicate that the Designated Software and the Designated Equipment are not properly functioning, subject to the below limitations on Vendor’s warranties, within a reasonable time thereafter Vendor shall properly Configure the Designated Software on the Designated Equipment or on Equipment from Vendor’s inventory to replace the Designated Equipment (and the replacement Equipment shall become the Designated Equipment),Vendor shall perform Go-Live Services as provided above, and the Go-Live Date shall be the date on which those Go-Live Services indicate the Designated Software and the Designated Equipment are properly functioning. If the Designated Software or the Designated Equipment are malfunctioning due to defects that are the subject of the below limitations on Vendor’s warranties, the Go-Live Date shall not occur until the Software Licensor or the Designated Equipment manufacturer corrects the malfunctions.
i. Vendor shall not be obliged to provide Go-Live Services if Customer does not timely schedule or participate in the Review or if Customer disapproves the Configuration even if the Review shows that the Designated Software provides all the Requested Functions. If either of the foregoing events occurs, the Go-Live Date shall be the day after the Review Period ends or the date of Customer’s disapproval, as applicable.
5. Technical Support
After the Go-Live Date and during each Subscription Term, at Customer’s request to Vendor at the telephone number for Support posted on Vendor’s website or as Vendor otherwise notifies Customer, Vendor shall provide Customer with telephone support to diagnose and resolve malfunctions of the Designated Software or the leased Designated Equipment (“Vendor’s Technical Support”), subject to the limitations of Vendor’s warranties as provided by this Agreement.
6. Customer Updates
After the Go-Live Date, Customer shall be solely responsible to make all updates to the Designated Software and the Designated Equipment, such as changes to the functions of the Designated Software, changes to employee access to the Designated Software, and all updates to the Third Party Software, such as the operating system.
7. Location and Use of the Designated Software and the Designated Equipment
Customer shall not do any of the following: (a) install or permit the installation of the Designated Software onto any device other than the Equipment at the Equipment Location, (b) move or permit the Equipment to be moved from the Equipment Location, (c) suffer or permit any third party to use or possess the Designated Software or the Equipment other than for Customer at the Equipment Location, and (d) use or permit the use of the leased Designated Equipment in a manner that is reasonably likely to damage the leased Designated Equipment, or (e) use or permit the use of the Equipment in a manner that is reasonably likely to damage or the Designated Software. If Customer or a third party threatens or commences to do any of the foregoing, Customer shall immediately so notify Vendor
8. Compliance With Licenses
Customer shall be solely responsible to comply with the End User License Agreements and the Third Party Licenses (one or more of which are the “Software Licenses”). Customer shall not attempt to hold Vendor responsible for the consequences of Customer’s non-compliance with the Software Licenses, including Customer’s loss of use of the Designated Software, the Equipment, or any Third Party Software, and such consequences shall not excuse Customer from paying Vendor the amounts provided by the Order Form and by this Agreement.
By signing the Order Form, Customer thereby authorizes Vendor to obtain payment for all amounts Customer owes Vendor under the Order Form and under this Agreement: (a) by automated clearing house transfer (ACH) from Customer’s account designated on the Order Form or of which Customer otherwise notifies Vendor (“Customer’s Bank Account”), and (b) by charging Customer’s current and future credit cards to the extent an ACH transfer from Customer’s Bank Account is insufficient to fully pay Vendor, plus Vendor’s then current credit card convenience fee. At Vendor’s request, Customer shall provide Vendor with information regarding Customer’s then current credit cards.
10. Vendor's Warranties
Vendor makes the following warranties:
i. Vendor’s services to configure, install, and connect the Designated Software, Vendor’s Training services, and Vendor’s Technical Support shall all be reasonably workmanlike. Vendor shall furnish Vendor’s Technical Support 24 hours each day, seven days each week, but Vendor does not guarantee any particular response time to Customer’s requests for Vendor’s Technical Support, and the results of Vendor’s Technical Support are subject to the limitations of Vendor’s warranties regarding the Products, below.
ii. The Designated Equipment shall be of a type suitable for the Designated Software.
iii. The S4P Software is designed to function with the Designated Software and on the Designated Equipment.
Vendor does not warrant any of the following:
i. Vendor does not warrant that the Designated Software, any SaaS service for the Designated Software, the Designated Equipment, or any Third Party Software (one or more of which is a “Product” or “Products”) will perform in substantial accordance with any particular specification, requirement, or expectation of Customer, or otherwise in conformance with any industry standard for similar products, including a Product’s availability or response times, or that the Products will be free from viruses or other harmful computer code, files, scripts, agents, or programs or will have no other defects, including errors, flaws, failures, bugs, or any other fault that causes a Product to function in a materially unintended or materially improper manner or to otherwise materially malfunction in any other respect, including any malfunction that materially interrupts the function of a Product or that materially affects the security, accuracy, reliability, quality, integrity, or permanence of any data or other stored information, that causes the deletion or any other error of any such data or other information, or that materially changes any configuration of a Product.
ii. Vendor does not warrant the times during which the SaaS service will be available due to maintenance or upgrades by SPS, or for any other reason not caused by Vendor, including limitations, delays, and other problems inherent in the use of the Internet and electronic communications.
iii. Vendor makes no express warranty, no warranty of the fitness for a particular purpose, no warranty of merchantability, and no warranty of non-infringement regarding the Products, except as expressly provided by this Agreement with respect to the Designated Equipment.
iv. All other warranties regarding the Products shall be only as provided by each licensor and each manufacturer (each of which is a “Supplier’s Warranty”).
v. If Customer elects to use Customer’s Equipment, Vendor does not warrant that the Designated Software can be configured, installed, or operated on Customer’s Equipment or connected to a Software Licensor’s SaaS service.
vi. Vendor does not warrant that payment software other than the S4P Software can be configured, installed, or operated on the Equipment or with the Designated Software, or connected to SPS’ SaaS service.
11. Security Agreement and Lien
The following provisions apply if Customer is leasing the Designated Equipment. This instrument constitutes a security agreement. To secure Customer’s performance of its obligations under the Order Form and this Agreement, Vendor shall have a security interest and lien on the Designated Equipment. Vendor may file appropriate Uniform Commercial Code financing statements regarding its aforesaid security interest and lien.
12. Expiration and Renewal
When the initial Subscription Term expires, the Subscription Term will automatically renew for successive time periods, each equal in duration to the initial Subscription Term unless Customer or Vendor notifies the other to the contrary at least 30 calendar days before then current Subscription Term expires. Each renewal of the Subscription Term shall be at Vendor’s then current fees and under the terms of this Agreement, as then amended.
13. Breach of the Order Form, this Agreement or any Software License
If and whenever Customer has not fully and timely paid Vendor as provided by the Order Form, of if Customer otherwise breaches the Order Form, this Agreement, or any Software License, Vendor shall thereafter have the right to do one or more of the following:
a. Vendor may cease to provide Training and Vendor’s Technical Support.
b. Vendor may access the Equipment and the Designated Software, via the Internet, and shut off or otherwise block Customer’s use of and access to the Designated Software on the Equipment and through the SaaS function.
c. On Vendor’s demand: (i) Customer shall pay Vendor: (A) the entire remaining balance of the Order Form, discounted at the rate of 8 percent per annum for the time period starting on the date of Vendor’s demand and ending whenever the last payment is otherwise due under the Order Form, plus (B) the then current value of the leased Designated Equipment as reasonably determined by Vendor. (ii) Customer shall permit Vendor to enter the Equipment Location or wherever else the Designated Equipment is located (both or either of which is the “Premises”) to take possession of and remove from the Premises the Designated Software and the leased Designated Equipment, including all the station keys for the Designated Software (the “Station Keys”).
d. If Customer refuses to permit Vendor to enter the Premises as provided above, Vendor may nevertheless enter the Premises at any time, remove the leased Designated Software from the Equipment, and take possession of the leased Designated Equipment and the Station Keys.
e. After Vendor removes and otherwise takes possession of the Designated Equipment from the Premises, Vendor may sell any or all of the leased Designated Equipment at a public or private auction on at least 10 days’ notice to Customer, and on Vendor’s demand Customer shall reimburse Vendor for the expenses Vendor incurred to undertake the foregoing. Vendor may apply the proceeds of that sale to the foregoing costs or to any other amount Customer owes Vendor under the Order Form or under this Agreement.
14. Waiver of Claims
(a) Customer waives all claims against Vendor concerning the Products for which Vendor has disclaimed a warranty and for any breach of a Supplier’s Warranty by any licensor or manufacturer.
(b) Customer waives all claims against Vendor for any act or omission of Vendor or any third party acting for or on behalf of Vendor of which Customer does not notify Vendor within 10 days after Customer or any of Customer’s employees or contractors first has knowledge or notice, including: (i) Customer’s claims arising from or otherwise regarding Vendor’s demonstration of the Software, and (ii) Vendor’s breach of this Agreement or Vendor’s breach of an Order Form, including Vendor’s improper charges against Customer’s bank account or credit card.
(c) Customer waives all claims against Vendor for punitive or exemplary damages and for Customer’s incidental and consequential damages, including Customer’s direct and indirect lost profits and loss of goodwill.
15. Customer Remedies
If Vendor breaches the Order Form or this Agreement and does not cure the breach within ten days or within a reasonable time, whichever is longer, after Customer timely notifies Vendor of the breach, as Customer’s sole remedy, on notice to Vendor within 10 days after Vendor’s time to cure the breach has expired, Customer may terminate the then current Subscription Term and thereafter Customer shall not owe Vendor any amount under the Order Form, provided that Customer thereafter permits Vendor to enter the Premises to take possession of and remove from the Premises the Designated Software, the leased Designated Equipment, and the Station Keys. Customer shall be deemed to have waived its right to terminate the then current Subscription Term if Customer does not timely notify Vendor of Customer’s termination. If a court, after all appeals if any, determines that the foregoing remedy is unenforceable, Vendor’s liability to Customer for Vendor’s breach of the Order Form or this Agreement shall not exceed the amount Customer paid Vendor for the 12 full calendar months preceding the month in which Vendor’s breach occurred, or for such fewer months if Vendor’s breach occurred within less than 12 full calendar months after the Go-Live Date.
16. Customer Remedies
Customer shall defend, indemnify, and hold Vendor and its shareholders, directors, officers, employees, agents, and contractors harmless from all claims by any third party arising from or connected with Customer’s use of any Software or any Equipment, Customer’s breach of any Software License, and all claims for any access to, or use or disclosure of, any information pertaining to any third party, including any number, security code, security question, user name, or password for any credit card, debit card, financial account, or any other account: (a) stored within the Designated Software, the Equipment, or any computer owned, used, licensed, or leased by any Software Licensor, any Third Party Licensor, or any other third party (“Third Party Computer”), or (b) occurring in connection with any transmission of any such information to or from a Third Party Computer in connection with any SaaS service or any other service.
17. Ownership of the Designated Software and the Designated Equipment
Customer acknowledges and agrees that Customer does not have, and by the Order Form or this Agreement shall not have, any ownership interest with respect to the Designated Software, the Station Keys, the leased Designated Equipment, or the Third Party Software.
Notices given under or concerning the Order Form or this Agreement shall not cause any time period under the Order Form or this Agreement to commence, shall not be binding on the recipient, and shall not require any action by or response from the recipient unless in writing and delivered by commercial courier; email; or registered or certified mail, return receipt requested, to the parties at the street and email addresses listed on the Order Form or as otherwise directed by a party’s notice to the other party. Delivery of a notice shall be deemed to have occurred at the date and time of actual receipt or at the date and time at which a party refuses to accept the delivery, whichever applies. If a party has moved without delivering notice of its new street or email address to the other party, delivery of a notice shall be effective at the date and time of the attempted delivery to the party’s street or email address last known by the other party. The dates and times of delivery, attempted delivery, or refused delivery shall be as shown by the records of the courier, the sender’s email record, or the United States Post Office, as applicable. Delivery shall not be deemed to have been made or refused if a recipient party’s email is inoperable at the time of the attempted delivery.
19. No Setoff
Customer’s obligations under the Order Form and this Agreement are separate and independent from Vendor’s obligations under the Order Form and this Agreement, and therefore the rights and remedies of Vendor under the Order Form and this Agreement are not subject to or affected by any claim, counterclaim, setoff, or recoupment by Customer, whether for Vendor’s breach of the Order Form, this Agreement, or otherwise.
20. Time is of the Essence
Time is of the essence concerning Customer’s performance of its obligations under the Order Form and this Agreement.
21. Force Majeure
Vendor’s time to perform, if delayed due to circumstances not caused by Vendor, including an act or omission of a Software Licensor, shall be reasonably extended, but at least by a time period equal to duration of the circumstance causing the delay. The foregoing is intended to supplement, not limit, the common law and statutory doctrines of impossibility or impracticality.
The Order Form, this Agreement, and all disputes concerning the Order Form or this Agreement shall be governed by the laws of the State of Illinois without utilizing conflict of law principles that would result in applying the law of any other state. Customer, in all disputes with Vendor, consents and submits to the exclusive jurisdiction and the exclusive venue of the state courts located in DuPage County, State of Illinois, Customer waives all claims that such jurisdiction and venue is improper or inconvenient, and Customer waives all rights to request a change of such venue. In all lawsuits to enforce or interpret the Order Form or this Agreement, Customer waives all rights to a jury trial, and if Vendor is the prevailing party Customer shall owe Vendor the costs and expenses incurred by Vendor, including the fees of Vendor’s attorneys, experts, and consultants. Vendor shall not be required to post a bond or other security to obtain an injunction to enforce any provision of the Order Form or this Agreement. All amounts that Customer owes Vendor under the Order Form or this Agreement that are unpaid and past due shall earn simple interest at the rate of 18 percent per annum or the highest lawful rate, whichever is less. Payments and recoveries of past due amounts shall be allocated first to Vendor’s costs and expenses, next to interest, and lastly to the principal amount due. Notwithstanding the foregoing jurisdiction and venue restrictions, Vendor may enforce any judgment it obtains against Customer in any jurisdiction and in any venue.
23. Severability and Modification
If a court or government agency, following the conclusion of all appeals, if any, determines that any provision of the Order Form or this Agreement is void or unenforceable, the balance of the Order Form and this Agreement shall nevertheless remain enforceable, such invalidity shall not affect any other provision of the Order Form or this Agreement that can be given effect without the invalid provision, and to that end, the parties intend that the provisions of the Order Form and this Agreement are and shall be severable. Following the conclusion of all appeals, if any, the parties shall, if and to the extent possible, modify the void or unenforceable provision, retroactive to the Signing Date and consistent with the final court or agency determination so that the provision shall become valid and enforceable while remaining as similar as possible to the original, or a party may petition the court to so modify this Contract. Otherwise, the Order Form and this Agreement may not be modified except by a writing signed or acknowledged in writing by the parties. The conduct of a party or any third party acting for or on behalf of a party different from the Order Form or this Agreement shall not thereby modify the Order Form or this Agreement. A party’s failure or forbearance to require the other party’s compliance with the Order Form or this Agreement, whether or not occurring on multiple occasions, shall not thereby modify the Order Form or this Agreement, shall not excuse the other party’s future compliance, and shall apply only to the specific instance of failure or forbearance.
The parties intend that the interpretation of the Order Form and this Agreement shall be derived only from the provisions thereof, without resort to course of dealing, usage of trade, course of performance, or any other extrinsic evidence, and shall not be construed against Vendor. Whenever appropriate under the circumstances, within the Order Form or this Agreement, including the definition of any term in the Order Form or this Agreement: (a) the plural of any word shall mean the singular; (b) the singular of any word shall mean the plural; (c) “and” shall mean “or”; (d) “or” shall mean “and”; (e) “an”, “any”, or “each” shall mean one, more than one, or all; (f) “all” shall mean any, one, or more than one; (g) words referring to persons or entities shall include associations, cooperatives, corporations, firms, general and limited partnerships, limited liability companies, natural persons, public agencies, sole proprietors, trusts, and all other entities and enterprises; (h) the words “such as”, “include”, “including”, and similar words shall be construed as if followed by the phrase “without limitation” or a similar phrase; (i) use of the masculine, feminine, or neuter gender shall include each of the other genders.
25. Entire Agreement
The provisions of this Agreement and the provisions of the Order Form together constitute the entire agreement between Licensor and Licensee regarding the subject matter of this Agreement and the Order Form. The provisions of this Agreement and the provisions of the Order Form supersede all proposals and all other offers, counteroffers, representations, and other communications, in any form or format and however made, regarding the subject matter of this Agreement or the Order Form.
26. Marketing Materials
The contents of Vendor’s brochures, website, other marketing materials, oral promises, or oral representations by Vendor’s personnel made at any time shall not be part of the Order Form or this Agreement and shall not create any representation or warranty by Vendor notwithstanding anything therein to the contrary.
27. Waiver of Contrary Claims
Customer waives all claims contrary to any provision within this Agreement or within the Order Form.
28. Limitations of Actions
Customer must commence all lawsuits against Vendor for Vendor’s breach of the Order Form or this Agreement, including any of Vendor’s warranties, within 30 days after Customer has knowledge or notice of the breach. Customer waives all claims against Vendor for which Customer does not timely commence a lawsuit.
29. Assignment, Successors and Assigns
Vendor may assign its rights and obligations under the Order Form and under this Agreement to successors and assigns. Customer may not assign its rights or its obligations under the Order Form or this Agreement without Vendor’s prior written consent, which Vendor may grant, withhold, or condition at its sole discretion.
The section headings in the Order Form and in this Agreement are included solely for convenience and are not intended to affect the interpretation of the Order Form or this Agreement or to have any substantive meaning, except to the extent a section heading is otherwise expressly referred to within the Order Form or this Agreement.
The parties may sign and deliver the Order Form to which this Agreement is attached by any method, including any electronic method, and each copy of the signed Order Form shall constitute an original if the pages containing the signatures of both parties are attached to that copy.
32. Independent Advice, Opportunity to Read, No Duress
Customer acknowledges as follows: (a) Customer had the opportunity to consult with Customer’s attorneys, other advisors, and consultants concerning the Order Form and this Agreement as fully Customer desired and as fully as Customer deemed necessary before Customer signed the Order Form, (b) Customer had an opportunity to read the Order Form and this Agreement as carefully as Customer desired before Customer signed the Order Form, (c) Customer understood the contents of the Order Form and this Agreement before Customer signed the Order Form, and (d) Customer signed the Order Form of its own free will and without duress.
33. Authority; Binding Contract
The individual signing the Order Form for Customer (“Customer’s Agent”): (a) represents and warrants to Vendor that Customer’s Agent is authorized to sign this Agreement for Customer and that Customer’s entry into the Order Form and this Agreement does not breach any other agreement to which Customer is bound, and (b) acknowledges that Vendor, in performing under this Agreement is doing so in reliance on the foregoing representations and warranties. Customer’s Agent acknowledges that his or her signature on the Order Form indicates Customer’s approval of the entire contents of the Order Form and this Agreement and Customer’s consent and agreement to be bound by all the provisions of the Order Form and this Agreement. Customer’s Agent shall be personally bound by the provisions of the Order Form and this Agreement to the extent that Customer repudiates the Order Form or this Agreement.