Equipment Lease Standard Terms and Conditions

Shamrock Foods Company, an Arizona corporation

  1. Use of Equipment. Customer shall use the Equipment for the sole and exclusive purpose of dispensing beverage products supplied directly by Shamrock to Customer (the “Beverage Products”). Capitalized, definitional terms used but not defined in these Equipment Lease Standard Terms have the meaning ascribed to them in the Equipment Lease Agreement into which these Equipment Lease Standard Terms are incorporated (such Equipment Lease Agreement, the “Equipment Lease Agreement”).
  2. Maintenance. If Customer participates in the Service Program and timely pays the Monthly Program Service Fee in connection therewith, Shamrock shall perform Routine Maintenance at the Equipment Location upon written request by the Customer, provided that in no event shall Shamrock be responsible for any Non-Covered Issue; Shamrock agrees to use commercially reasonable efforts to acknowledge and schedule service requests within twenty-four (24) hours after receipt of such written request from Customer (with such Routine Maintenance services to be performed by Shamrock in a commercially reasonable period of time thereafter). “Routine Maintenance” means routine preventative and corrective maintenance with respect to the Equipment in order to maintain the quality of the Beverage Product and performance of the Equipment. If Customer does not participate in the Service Program or does not timely pay the Monthly Service Program Fee in connection therewith, Customer shall, at Customer’s expense, use a Shamrock-authorized vendor (an “Authorized Vendor”) to timely and regularly perform all Routine Maintenance in accordance with manufacturer’s guidelines, maintenance, operating manual, and instructions and in compliance with industry standards and applicable laws, and Shamrock may, at Shamrock’s option, assist Customer in such process through Box and Ship upon Shamrock’s advance written consent in each instance. “Box and Ship” means Customer shall appropriately package the applicable Equipment and return such Equipment to Shamrock on the designated Shamrock carrier, at Customer’s expense. If Customer fails to timely notify Shamrock of, and/or fails to use an Authorized Vendor for, maintenance or repairs of the Equipment, Customer assumes liability for any and all issues resulting therefrom, including but not limited to governmental and Environmental Protection Agency penalties and regulations and the reimbursement to Shamrock of the Equipment Replacement Value of the Equipment.
  3. No Equipment Warranty. THE EQUIPMENT IS SUPPLIED TO CUSTOMER “AS IS” AND “WITH ALL FAULTS”, IN THE CONDITION EXISTING AT THE TIME IT IS OR WAS DELIVERED TO CUSTOMER, AND SHAMROCK MAKES NO REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED WITH RESPECT TO THE EQUIPMENT. SHAMROCK EXPRESSLY DISCLAIMS AND NEGATES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
  4. Non-Covered Issue. In the event the Equipment must be repaired or replaced because of a Non-Covered Issue, then Customer shall (a) at Shamrock’s election, make Customer’s managers of the Equipment Location available for retraining of the use and maintenance of the Equipment by Shamrock or its representatives, and (b) be solely responsible to reimburse Shamrock for the cost to repair the Equipment (including, but not limited to, the cost of replacement parts and the travel costs and labor costs of Shamrock and its Authorized Vendor) or, if Shamrock determines that repair of the Equipment is not available or advisable, then Customer shall be responsible to reimburse Shamrock for the Equipment in the amount of the Equipment Replacement Value therefor as set forth in the Equipment Lease Agreement (the “Equipment Replacement Value”). A “Non-Covered Issue” means an issue, defect, damage or anomaly with or to the Equipment that Shamrock or its Authorized Vendor determines is due to (i) user error or negligence by Customer, Customer’s customer, or any party other than Shamrock or its Authorized Vendor; (ii) misuse or abuse of the Equipment by Customer, Customer’s customer, or any party other than Shamrock or its Authorized Vendor; (iii) improper cleaning of the Equipment, including, but not limited to, if the Equipment was not cleaned at regular intervals; (iv) improper use, lack of maintenance or carelessness by Customer, Customer’s customer, or any party other than Shamrock or its Authorized Vendor; (v) faulty installation or removal/relocation of the Equipment by Customer, Customer’s customer, or any party other than Shamrock or its Authorized Vendor that is not approved in advance of such removal or relocation by Shamrock; (vi) electrical line power surge or any external causes; (vii) improper shutting down or turning off of the Equipment by Customer, Customer’s customer, or any party other than Shamrock or its Authorized Vendor; (viii) improper storage of the Equipment by Customer, Customer’s customer, or any party other than Shamrock or its Authorized Vendor; (ix) a Force Majeure Event (as defined in Section 13); (x) vandalism; and/or (xi) breach of this Agreement by Customer.
  5. Equipment Terms. Customer may not alter, modify or change any Equipment in any manner or fashion whatsoever without Shamrock’s prior written consent. Without limiting the foregoing, in no event shall Customer change any Equipment in any way that voids the manufacturer’s warranty or permit anyone to do so. Customer shall, at Customer’s expense, clean the Equipment routinely and regularly, using proper cleaning materials and in accordance with manufacturer’s guidelines, maintenance, operating manual, and instructions and in compliance with industry standards and applicable laws. Customer shall install and use the Equipment in such a manner as to protect it from damage or deterioration. Customer hereby represents and warrants that the Equipment Location is appropriate for and conducive to the storage of the Equipment. Equipment shall be handled by Customer with care and will be placed by Customer in a location within the Equipment Location that is free of debris, pests, and clutter, and does not detract from the brand image of Shamrock. Customer shall ensure that the Equipment is directly plugged into a dedicated power source should the Equipment require power to operate and shall not remove the Equipment from the Equipment location without Shamrock’s prior written permission. Shamrock shall, at Shamrock’s option, either: (a) deliver and install, at Shamrock’s expense, the Equipment at the Equipment Location (and, in such case, Customer shall make sufficient and safe space available to Shamrock or Authorized Vendor at the Equipment Location during normal business hours for such installation) or (b) ship the Equipment to the Equipment Location, at Shamrock’s expense, for Customer to install, at Customer’s expense, the Equipment pursuant to Shamrock’s written instructions. The Equipment is subject to Shamrock’s inspection, provided that Shamrock’s inspection, testing or failure to inspect the Equipment does not relieve Customer of any of its obligations under this Agreement. Customer will permit Shamrock and its authorized representatives to access the Equipment and Customer’s facilities from time to time to (x) monitor, inspect, and audit Customer’s operational performance of this Agreement; and (y) review Customer’s Equipment logs and maintenance records. Customer agrees to cooperate fully with Shamrock in connection with any audit or inspection. Shamrock may enter any Equipment Location and remove the Equipment without notice to Customer and without liability if, in the reasonable opinion of Shamrock, the Equipment is being improperly stored, used or maintained. Unless Customer provides written notice to Shamrock within two (2) calendar days after the Equipment is delivered to Customer of any defect in that Equipment, Customer shall be deemed to have (i) accepted such Equipment and (ii) agreed that such Equipment was in good and operable condition at the time of its delivery. Customer shall in no event have or claim any right, title, or ownership interest in any Equipment, other than the right to use the Equipment during the Term in accordance with the terms of this Agreement; Shamrock maintains full and exclusive ownership of the Equipment at all times. No Equipment shall become a fixture, regardless of whether the Equipment is or may be affixed to real property. The Equipment shall be conspicuously identified as Shamrock’s property in Customer’s records and by physical marking thereon, shall be promptly delivered to Shamrock upon request, and shall not be used for any other purpose other than as described in this Agreement. Customer shall not pledge, transfer, assign, sublet, part with possession of, or remove any Equipment from the applicable Equipment Location without Shamrock’s prior written permission. Shamrock shall not be responsible or liable for any loss, damage, expense or claim incurred by Customer arising out of Customer’s use of, or otherwise related to, the Equipment. Customer agrees to maintain the Equipment free and clear of all liens, security interests and encumbrances of any nature whatsoever. Customer shall be responsible for and shall timely pay all taxes, fees, and other charges charged by any governmental or taxing agency or authority on or relating to the Equipment, including Customer’s use of the Equipment. Following notice of termination of this Agreement by either party, Customer may request that Shamrock sell the Equipment to Customer at a fair market value as such fair market value is determined by Shamrock (it being understood that such fair market value amount shall not be reduced by any Program Fees paid or owed by Customer hereunder). Shamrock may accept or reject such request in its sole discretion. Customer shall only affix Shamrock-approved point of sale material to the Equipment, such as signs, placards, and any other graphic material. Customer will not remove from, deface, add or hide any decals or logos on the Equipment or permit anyone except Shamrock to do so. Customer shall not remove or destroy the serial number or tag on any Equipment. Shamrock has the sole right to remove the Equipment with ten (10) days’ notice to Customer. Notwithstanding the foregoing, Shamrock may immediately remove the Equipment without notice as set forth in this Section or if Customer fails to comply with the terms of this Agreement.
  6. Risk of Loss; Insurance. Customer assumes all risk of loss, damage, theft or destruction of the Equipment, regardless of cause, beginning upon delivery of the Equipment to the Equipment Location and continuing until such Equipment is returned to Shamrock in accordance with this Agreement. During the Term and until the Equipment is returned to Shamrock, Customer shall maintain all risk property insurance coverage such that Customer has both property damage insurance and general liability insurance policies in effect to cover the loss or damage of the Equipment in the full amount of the Equipment Replacement Value, as well as any liabilities Customer and any third parties may incur as a result of Customer’s business or use of the Equipment. Customer’s insurance policy must provide a minimum of $1 million combined single limit for bodily injury and property damage and name Shamrock as an additional insured and loss payee. Customer shall provide Shamrock with certificates evidencing such insurance upon request.
  7. Return of Equipment. (a) When Equipment is returned by Customer to Shamrock, such Equipment shall be in good and operable condition and in the condition in which the Equipment was in upon delivery of such Equipment to the Equipment Location by Shamrock, ordinary wear and tear excepted. (b) Equipment shall be returned either, as Shamrock selects, by: (i) Customer returning such Equipment to Shamrock with freight prepaid by Customer, or (ii) Customer providing Shamrock access to the Equipment at the Equipment Location at a time and date acceptable to Shamrock in order for Shamrock to remove the Equipment and, if Shamrock selects option (ii), Customer shall reimburse Shamrock for all costs and expenses incurred by Shamrock in so removing and transporting the Equipment. (c) Shamrock has no liability to repair or replace the Equipment; in the event the Equipment is returned to Shamrock in a condition other than as in the condition required by Section 7(a), Customer shall reimburse Shamrock for the cost to repair the Equipment (including, but not limited to, the cost of replacement parts and the travel costs and labor costs of Shamrock and its Authorized Vendor) or, if Shamrock determines that repair of the Equipment is not available or advisable, then Customer shall be responsible to reimburse Shamrock for the Equipment in the amount of the Equipment Replacement Value.
  8. Uniform Commercial Code Financing Statements.  Customer expressly permits Shamrock to file Uniform Commercial Code (“UCC”) financing statements in any appropriate filing office reflecting Shamrock’s ownership of, or other interest in, the Equipment. Customer also expressly permits Shamrock to make any other notification necessary to protect Shamrock’s interest in the Equipment (such as those contemplated by UCC § 9-324) to any person or entity that has filed a UCC financing statement that, in Shamrock’s sole discretion, may evidence a conflicting interest in the Equipment.
  9. Term; Termination. This Agreement shall be effective as of the Effective Date and, unless terminated sooner pursuant to this Agreement, shall continue in effect for the Initial Term, as defined in the Equipment Lease Agreement (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew month-to-month unless and until written notice of termination is received by either party from the other party no fewer than thirty (30) days prior to the end of the Initial Term or then-current renewal term, unless terminated sooner pursuant to this Agreement (the Initial Term and any and all renewal terms are referred to in this Agreement, collectively, as the “Term”). Shamrock may terminate this Agreement, at any time and for any reason or no reason, by giving Customer written notice thereof at least sixty (60) days in advance of the termination date designated by Shamrock in such notice. Either Customer or Shamrock may terminate this Agreement by written notice to the other party (such other party, the “Breaching Party”): (a) if the Breaching Party breaches a material term or condition of this Agreement (which includes any failure to pay any amount when due hereunder) and the Breaching Party fails to cure such breach within ten (10) days after written notice thereof by the terminating party; or (b) upon the filing or institution of any bankruptcy, reorganization, liquidation, insolvency or receivership proceedings by the Breaching Party (i.e., voluntary actions), or upon the failure by Breaching Party for more than ninety (90) days to discharge any such actions commenced against it (i.e., involuntary actions). Notwithstanding the preceding sentence, Shamrock may terminate this Agreement immediately upon written notice to Customer if Customer breaches any provision under Sections 1 or 5. Upon termination or expiration of this Agreement, Customer shall (i) return all Equipment to Shamrock in accordance with Section 7 and (ii) take all actions necessary to protect, and shall immediately return to Shamrock, any and all documents, materials and other property of Shamrock that is in Customer’s custody or under Customer’s control. Those provisions of this Agreement that by their nature or their express terms are meant to survive termination or expiration hereof shall so survive, including without limitation, Sections 3-11, 13-15, 18, and 20-23. Neither expiration nor termination of this Agreement shall affect the rights or obligations of the parties that accrued prior to such expiration or termination.
  10. Limitation of Liability. SHAMROCK SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND (B) WHETHER OR NOT SHAMROCK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Shamrock specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of data, down-time, lost good will, cost of capital, cost of substitute products, or for any other types of economic loss, or for claims of Customer’s customers or any third party for any such damages, costs or losses. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR OTHERWISE, SHAMROCK’S ENTIRE, AGGREGATE LIABILITY DURING THE TERM OF THIS AGREEMENT FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED FIVE THOUSAND DOLLARS ($5,000.00). SHAMROCK WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS OR SERVICES SOLD BY SHAMROCK, THE EQUIPMENT LEASED BY SHAMROCK, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO.
  11. Customer’s Indemnity. Customer shall indemnify, defend and hold harmless Shamrock, and its officers, agents, landlord, lenders, and employees from any and all claims, losses, damages, (including damages arising from personal injury or death), costs, judgments and/or litigation expenses (including, but not limited to, attorneys’ fees, defense costs, expert fees, court costs and travel expenses) (the “Losses”), arising out of or related to: (a) any breach by Customer of this Agreement; (b) any violation by Customer of any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or of any arbitrator, court, or tribunal of competent jurisdiction; (c) any negligence or willful misconduct of Customer; and/or (d) the use of the Equipment (the “Claims”). Notwithstanding the foregoing, Customer shall not be required to indemnify Shamrock to the extent the Losses result solely from Shamrock’s gross negligence. Shamrock shall give Customer written notice of any claim for which defense or indemnification is sought under this Agreement, provided that the failure to give such written notice shall not relieve Customer of its defense or indemnification obligations, except and only to the extent that Customer forfeits rights or defenses by reason of such failure. Notwithstanding any other provision of this Agreement, Customer shall not consent to the entry of any judgment or enter into any settlement of any claims without the prior written consent of Shamrock.
  12. Force Majeure. Shamrock shall be excused from and shall not have any liability for any delay in delivery, delay in performance, non-delivery, or other failure to perform any of its obligations under this Agreement where Shamrock’s delay, non-delivery, or failure to perform is caused, in whole or in part, by a Force Majeure Event. A “Force Majeure Event” is a condition or event that is beyond the reasonable control of Shamrock, whether foreseeable or unforeseeable, foreseen or unforeseen, including without limitation, severe weather, storm, flooding, hurricane, tornado, seismic disturbance, act or omission of Customer, act or omission of any third party, natural disaster or other act of God, fire, explosion or other casualty, epidemic, pandemic, quarantine, disease, virus, condemnation, strike, slowdown, or other labor dispute or shortage, transportation interruption, theft, vandalism, riot or war, terrorism, power outage, interruption in electronic communications systems, change in law, act of government, government-mandated allocation requirements, issuance of executive order or government order, government-mandated shutdown, or unavailability of parts, materials or supplies at a commercially reasonable price.
  13. Confidentiality. These obligations of non-use and non-disclosure in this Section apply in addition to, and not in lieu of, any obligations in any executed confidentiality agreement in effect between Shamrock and Customer. Any and all information, whether in tangible or intangible form concerning Shamrock’s products; prices and pricing strategies; technology, software, supplies, systems, or services used; purchasing, accounting, marketing (including but not limited to customer lists, data and contacts), merchandising, selling, servicing, business methods and plans; techniques; marketing plans; strategies; forecasts; financial and cost information; concepts; know-how; improvements; projects; proposals; suppliers (including supplier lists and supplier contacts); employee lists; trade secrets; trademark and copyrighted information; and other similar information, items, documents and materials made available by Shamrock or its affiliates to Customer or its affiliates, or otherwise acquired, obtained or developed by Customer under or in connection with this Agreement (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Shamrock. Confidential Information shall not include any item of information that Customer can demonstrate by tangible evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Customer or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Customer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. During the Confidentiality Period, Customer agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in this Agreement, or (ii) disclose the Confidential Information to any third party. As used herein, “Confidentiality Period” shall mean the period beginning on the Effective Date and ending on the date that is five (5) years after the expiration or termination of this Agreement, provided that Customer’s obligations with respect to Confidential Information that constitutes trade secrets under applicable law will continue until the date on which such information no longer constitutes trade secrets under applicable law. Customer acknowledges and agrees that money damages for any and all breaches of Customer’s obligations under this Section are both incalculable and insufficient and that any such breach would irreparably harm Shamrock. Therefore, in the event of an actual or prospective breach of any such obligation, Shamrock shall be entitled to seek a permanent and/or preliminary injunction without the need to post any bond to prevent or remedy such breach and shall have the right to specific enforcement of this Section against Customer in addition to any other remedies to which Shamrock may be entitled at law or in equity.
  14. Dispute Resolution. This Agreement shall be governed by and construed under the laws of Arizona without reference to conflicts of law principles that would require the application of the laws of any other state. Any controversy, claim or dispute arising out of or relating to this Agreement shall be brought exclusively in any court of competent jurisdiction in the state or federal courts of Maricopa County, Arizona, and the parties hereby consent to the personal jurisdiction of such courts. TO THE EXTENT PERMITTED BY LAW, THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY. In the event of any action at law or in equity between the parties to enforce any of the provisions in this Agreement, the unsuccessful party to such action or proceeding shall pay to the successful party all costs and expenses, including reasonable attorneys’ fees, incurred by such successful party in connection with the action or proceeding; and if such successful party shall recover a judgment in any such action or proceeding, such costs, expenses and attorneys’ fees may be included in and as part of such judgment. In the event litigation is commenced pursuant to this Section, the parties agree to the extent permissible under the then applicable Federal Court Rules and Federal Rules of Civil Procedure, to consent to the following guidelines for electronic document production. In the event of a dispute, a legal hold notice shall be issued after receipt of a Summons and Complaint. The legal hold notice shall apply to only those employees directly involved with the subject matter of the litigation or information technology professionals. The employees in receipt of the legal hold notice shall preserve relevant electronic documents in their possession and information technology professionals shall preserve responsive electronic documents within their control. While the parties may agree to the scope of document production in the course of the litigation, in no event will any party be required to preserve, collect or produce back-up tapes, server logs, information stored in volatile memory, and transient metadata. The parties stipulate to the entry of a protective order, case management order, or similar order governing preservation and discovery in general that is consistent with the terms of this Section.
  15. Standard Authority; Understanding of Agreement. Each party represents and warrants to the other that (a) it has full right, power, authority and legal capacity to enter into this Agreement and perform its obligations hereunder; and (b) when executed and delivered, this Agreement and each other document or instrument required in connection herewith will constitute a legal, valid and binding obligation enforceable against such party in accordance with its terms. Each party represents and warrants to the other that before executing this Agreement it had the opportunity to review this Agreement with independent counsel of its choice, it has completely read and fully understands the provisions of this Agreement, in executing this Agreement it has not relied on any promise or representations made by any person other than the promises and representations explicitly stated in this Agreement, and that it has acted freely and under no duress or undue influence in executing this Agreement.  Except as otherwise expressly noted in these Equipment Lease Standard Terms, any reference in these Equipment Lease Standard Terms to a Section refers to that Section of these of these Equipment Lease Standard Terms.
  16. No Assignment. Customer shall not assign any of its rights or delegate any of its duties under this Agreement. Any such attempted assignment or delegation shall be null and void. For the avoidance of doubt, Shamrock shall have the right to assign this Agreement to any lender as a collateral security interest under credit facilities in the ordinary course or in connection with a sale of the business to which this Agreement relates.
  17. Relationship of Parties. Customer and Shamrock are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.
  18. Severability. If any provision of this Agreement is held illegal, invalid or unenforceable by a court of competent jurisdiction, such provision will be deemed stricken from this Agreement and its illegality, invalidity or unenforceability will not affect the remainder of the provisions of this Agreement, which will remain in full force and effect. The parties will endeavor in good faith negotiations to replace any illegal, invalid or unenforceable provision with a valid, legal and enforceable provision, the economic effect of which comes as close as possible to the economic effect of the illegal, invalid or unenforceable provision.
  19. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all such counterparts together will constitute but one and the same instrument. This Agreement and all related documents to be entered into in connection herewith will be considered signed when the signature of a party is delivered by scanned image (for example, .PDF or .tiff file extension name) as an attachment to electronic mail (email) or through a reputable electronic signature software, like DocuSign. Such scanned signature shall be treated in all respects as having the same effect as an original signature and original copy.
  20. Use of Marks; Intellectual Property. Shamrock and/or its licensors owns certain proprietary and other property rights and interests in and to trademarks, service marks, logo types, insignias, trade dress designs and commercial symbols relating to Shamrock and its products (the “Marks”). Customer acknowledges that the Marks are the sole and exclusive property of Shamrock and/or its licensors, with any goodwill arising from the use of the Marks to inure solely to the benefit of Shamrock and/or its licensors. Shamrock may provide Customer with displays, signage and other advertising materials incorporating the Marks; Customer shall not use the Marks except as shown on such materials or Beverage Products in the form provided by Shamrock and then only for the purpose of marketing and selling the Beverage Products. If, at any time Customer ceases selling Beverage Products, whether in connection with the termination of this Agreement or otherwise, all rights granted to Customer to use the Marks will immediately terminate, and Customer will immediately (a) cease to use, in any manner whatsoever, any Marks (including in displays, signage, advertising materials, and other materials) and (b) upon request, return to Shamrock all such materials to Shamrock. Each party hereby agrees that it shall not, either while the Agreement is in effect or at any time thereafter, register, use (except in the performance of the Agreement), or attempt to obtain any right in or to the other party’s trademarks, trade name, trade dress or logos, or in or to any trademark, trade name, trade dress, or logo confusingly similar thereto. All intellectual property rights (including, without limitation, patents, trademarks, registered designs and any rights to apply for the same, copyright, design rights, database rights, rights in and to confidential information and know-how) and any rights analogous to the same anywhere in the world and existing at any time in the Beverage Products and/or the Equipment or arising out of or relating to the design or manufacture thereof or the provision of services shall belong to and remain vested in Shamrock.  Nothing in the Agreement grants to Customer any right, title or interest in or to Shamrock’s intellectual property or any intellectual property related to the Equipment or Beverage Products.
  21. Notices. Whenever under this Agreement one party is required to give notice to the other party, such notice will be deemed effective: (a) five (5) calendar days after deposit in the United States Mail, postage prepaid, certified or registered mail, return receipt requested; (b) one (1) day after deposit with a national overnight courier; (c) if given by electronic mail (email), one (1) day after transmission, provided confirmation of such notice is also sent by national overnight courier or delivered in person; or (d) upon delivery if delivered in person or by messenger, in each case, addressed to the party to be notified at its address set forth above (or such other address as any party may be notified of as described in this Section). A copy of any notice to Shamrock shall also be sent to Shamrock Foods Company, 3900 East Camelback Road, Suite 300, Phoenix, AZ 85018, Attention: Legal Department, and, if by email, to [email protected].
  22. Depreciation and Tax Benefits. This Agreement is a true lease and not a capital lease, and the parties intend for it to be construed as such. Customer shall not, whether by action or omission, cause this Agreement not to be treated as a true lease for federal and state tax purposes. If, by any action or omission, Customer causes this Agreement not to be treated as a true lease for tax purposes, in whole or in part, Customer shall defend, indemnify and hold harmless Shamrock from any and all losses (including, without limitation, loss of tax benefits), liabilities, damages, penalties, claims, demands, actions, costs and expenses (including, without limitation, reasonable attorneys’ fees and legal expenses) resulting therefrom.
  23. Entire Agreement; Amendments; Waiver; Headings. This Agreement contains the entire understanding and agreement of the parties in respect of the subject matter hereof and supersedes all prior representations, warranties, agreements, arrangements, and understandings regarding such subject matter, oral or written. Any additional, conflicting, contrary or otherwise different terms on the subject matter hereof contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Customer to Shamrock, whether submitted in writing, electronically, or posted on any website are void and shall not have any force or effect. Without limiting the foregoing, any Electronic Terms and Conditions, as defined below, shall be of no force or effect whatsoever and this Agreement shall supersede entirely any such Electronic Terms and Conditions, notwithstanding any “click-through agreement” or other purported acceptance by Shamrock of such Electronic Terms and Conditions. “Electronic Terms and Conditions” shall mean any differing or additional terms and conditions, presented in electronic format to Shamrock or its personnel in connection with and purporting to govern or otherwise apply to the subject matter hereof. Except as otherwise expressly provided in this Agreement, this Agreement may not be amended or modified except in a writing signed by the parties hereto. If one party agrees to waive its right to enforce any term of this Agreement on a particular occasion, it does not thereby waive its right to enforce such term or any or all other terms of this Agreement at any other time. All waivers, to be effective, must be in writing and signed by the parties. The headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.