Microf Agreement - OPTIMUS Financing

Microf Agreement

Lender Agreements (3 of 3)

Microf Agreement

Terms of Service(Required)

Background. Microf LLC (“Microf”) is in the business of facilitating the use and possession of home improvement goods, including, but not limited to, plumbing and heating, ventilation and air conditioning units and accessories, by customers through leasing, renting, lease-purchase, rent-to-own, and financing arrangements (“Microf Products”). Contractor (“Contractor”) is in the business of selling home improvement goods, as well as providing services, such as installation and maintenance, in connection with such sales. Contractor desires to assist in the marketing of Microf Products to consumers, collectively hereinafter referred to as “Qualified Customers”.

1. Customers. Contractor expects to encounter consumers who are interested in home improvement goods and related services (“Merchandise”), but do not wish to immediately pay full retail price to Contractor. Contractor will market, offer and promote Microf Products to Qualified Customers. Accordingly, Contractor will (i) prominently display, in its store locations, signage and brochures provided by Microf, (ii) present Microf Products brochures and other materials to Qualified Customers, and (iii) provide a hyperlink on its website promoting Microf Products and the Contractor relationship. Contractor shall also introduce Microf personnel to such Qualified Customers.

2. Application Process. A Qualified Customer who is interested in obtaining a Microf Product shall submit an application (“Application”) via the Microf website or Microf mobile app. Said Application shall be completed by such Qualified Customer and submitted to Microf online through the Contractor’s custom link to Microf’s secure website or through Microf’s contractor portal. Microf shall then utilize commercially reasonable efforts to, after completing its verification and approval process, approve or deny the application promptly. In taking and submitting the Application, Contractor (including its employees and agents) shall adhere to the following protocols and does hereby represent and warrant that with respect to any and all Applications to be submitted pursuant to this Agreement, it shall have adhered to the following protocols:
(a) If Contractor is assisting the Qualified Customer in completing and submitting an Application, Contractor shall obtain all consents from Qualified Customer, as provided for in the Application (if applicable).
(b) If Contractor is assisting the Qualified Customer in completing and submitting an Application, Contractor shall obtain from Qualified Customer, the Qualified Customer’s proof of income as provided for in the Application (if applicable).
(c) Contractor shall undertake commercially reasonable efforts to determine that the residential property where the Merchandise will be delivered or installed is currently occupied, not in a state of disrepair, and not condemned.

3. Acceptance; Payment; Risk of Loss.
(a) Microf shall provide a written approval of an Application to Contractor; the approval or declination of the Application shall be at Microf’s sole discretion and Microf shall not be obligated to approve an Application.
(b) Following approval of an Application, Microf shall prepare a completed Installment Loan Agreement (may be referred to herein as a “Loan”) or Rental Purchase Agreement (may be referred to herein as an “RPA”), which must be fully filled out, initialed, and signed by the Qualified Customer at or before the time of delivery.
(c) For an RPA, Microf shall purchase the Merchandise from Contractor for the Microf approval amount (the “Purchase Price”). Microf shall expend reasonable commercial efforts to deliver to Contractor the Purchase Price within 48 hours of Microf’s receipt from Contractor of all documents required by Section 3(e) below, however in all instances Microf shall deliver such payment to Contractor within 15 days following Microf’s receipt of the required documents.
(d) Contractor shall be solely responsible for the delivery and installation of the Merchandise, except that for Indiana RPAs, if a Qualified Customer elects to arrange installation services outside of the RPA, Contractor shall not be responsible for installation services that it does not perform.
(e) The following documents must be received by Microf prior to any Merchandise purchase payment being paid by Microf to Contractor:
(i) completed Installation Certification Form, or other similar form utilized by Microf, signed or otherwise executed, in a manner suitable to Microf, by the Contractor; and
(ii) for RPA, description of Merchandise including year, make, model, and serial number, for each item on such form utilized by Microf.
(f) Should Contractor request that the Purchase Price be remitted to Contractor by ACH (direct deposit) instead of by check, it shall be the sole responsibility of Contractor to provide Microf with an authorization form acceptable to Contractor’s financial institution.
Notwithstanding the foregoing, Microf reserves the right to permanently withhold amounts otherwise owing to Contractor if (i) Qualified Customer exercises their Right of Cancellation under the applicable federal or state Home Solicitation Sales Act or (ii) Contractor fails to provide to Microf all required documentation in Section 3(e) above within thirty (30) calendar days of the delivery date of the Merchandise. Microf shall not be liable to Contractor for any amounts withheld as a result of Qualified Customer exercising their Right of Cancellation or Contractor’s failure to provide documentation in a timely manner.
For RPAs, Contractor acknowledges and agrees that, upon Microf transmitting correspondence to Contractor accepting Contractor’s proposal to sell to Microf certain Merchandise, Microf immediately attains ownership of the Merchandise that is the subject of the proposal, and such immediate transfer of ownership is not affected or delayed by the fact that Contractor may not immediately receive payment from Microf for the Merchandise. Microf

acknowledges and agrees that, as to any Contractor proposal accepted by Microf, Microf shall tender payment to Contractor consistent with the terms of this Agreement. In the event of a dispute related to payment for any proposal or Merchandise, Contractor’s sole remedy shall be to proceed against Microf for breach of contract; Contractor has no right of action against any person or entity that Microf elects to lease the Merchandise to, nor does Contractor have any right to proceed against the Merchandise in any way, whether by action for replevin or other means. To the extent that Contractor, in a dispute related to a proposal or Merchandise, would have any right to proceed against any party other than Microf, Contractor hereby waives any such right(s) in all instances.

4. License. Microf hereby grants Contractor a limited, revocable, non-transferable and non-exclusive license to display certain Microf logos and utilize certain Microf marketing materials. Contractor shall display the Microf logos and marketing materials only in a form and manner that is expressly approved in advance by Microf, such approval not to be unreasonably withheld, conditioned or delayed, and in full accordance with any instructions of Microf relating thereto. The following statement shall appear in a footnote on the first page of marketing material of Contractor where any of the Microf logos appears: “Registered trademark of Microf LLC and used with permission.” Microf shall have the right to approve and control all use of the Microf logos and marketing materials and has the right to disapprove any such use which it deems harmful to its business, reputation or goodwill. Contractor agrees to comply promptly with all directions and requirements of Microf regarding Contractor's display, proposed display, or use of the Microf logos or marketing materials. All right, title and interest in the Microf logos and marketing materials shall remain with Microf. Upon expiration or termination of this Agreement, or upon notice by Microf, all rights and licenses granted to Contractor hereunder shall terminate and Contractor shall discontinue its display and use of the Microf logos and marketing materials immediately. In addition, if requested by Microf, Contractor shall immediately destroy, and certify the destruction of, all Microf marketing materials and any other materials on which the Microf logos appear. In the event Microf revokes its permission for Contractor to display any of the Microf logos or use any of the Microf marketing materials, Microf shall be entitled to an injunction against any display of such Microf logos or the use of such marketing materials by Contractor.

5. Representations, Warranties, and Covenants of Contractor. In order to induce Microf to purchase the Merchandise from Contractor and enter into Microf Products with Qualified Customers, Contractor represents, warrants, and covenants as to this Agreement, each Qualified Customer, Loan, and RPA that:
(a) Protocols. Contractor has followed the provisions of this Agreement;
(b) Applications. The information contained within any Application, and any other information submitted to Microf, accurately represents the information provided by the Qualified Customer. Contractor has not counseled or advised a Qualified Customer in completing an Application so as to alter the Qualified Customer’s financial situation;
(c) Contract Valid, No Defenses. To Contractor’s knowledge, the Applicant on the Loan or RPA (i) is who he, she or it purports to be and (ii) is of legal age and has the capacity to contract;

(d) Compliance. This Agreement and Contractor’s actions (i) in entering into and performing its obligations (including, without limitation, advertisements, solicitations and sales practices) under this Agreement and (ii) in connection with the Qualified Customer’s entry into the Loan or RPA, comply and will continue to comply with all federal, state, and local laws and regulations. Contractor is properly licensed and insured as required by applicable law, and Contractor’s servicing of Merchandise (if any) also complies and conforms to the terms of this Agreement and the Loan or RPA, and all federal, state, and local laws and regulations;
(e) Payments or other consideration received by Contractor. With regard to any proposal submitted by Contractor to Microf for an Application and accepted by Microf, Contractor has not, and will not, accept any payment or other consideration of any kind from any person or entity other than Microf, unless approved by Microf.
(f) Obligations. Contractor has performed and will perform all of its obligations in connection with this Agreement and any agreement or arrangement to which it is bound for delivery and/or installation of the Merchandise;
(g) No Advance. It involves no lease or loan other than the one described therein and it involves no advance of cash or other form of loan;
(h) Knowledge. Contractor has no knowledge or notice of anything that would impair enforceability or collection thereof as against the Qualified Customer;
(i) Identification. Contractor represents that all Contractor’s information provided to Microf under this Agreement is true and accurate.

6. Contractor’s Compliance with Miscellaneous Requirements. Contractor hereby agrees that it will:
(a) Use such additional or substitute forms as Microf may provide or approve in writing or via website/e-mail;
(b) Not make any statements, comments or representations to any Qualified Customer or other party with regard to Microf Products or this Agreement which are inconsistent with the documentation provided by Microf hereunder or the terms hereof;
(c) Observe and comply with applicable rules and regulations provided by Microf and such commercially reasonable procedures as Microf may prescribe; and
(d) Not negotiate any contract terms with respect to Microf Products with Qualified Customers.
Contractor understands and agrees that Contractor’s failure to comply with the requirements of this Agreement, insofar as such requirements are necessary in connection with Microf’s obligation to the Qualified Customer, may result in Microf having to credit the Contract with amounts previously debited to the account and that in such event such amounts may be charged back to Contractor.

7. Additional Covenants of Contractor.
(a) Contractor acknowledges that, except as otherwise provided herein, all costs and expenses incurred by Contractor in connection with this Agreement are the sole responsibility of Contractor incurred at Contractor’s own risk and in Contractor’s independent business judgment that such costs and expenses are reasonable and appropriate.
(b) Microf will notify Contractor of any dispute or complaint made by a Qualified Customer and Contractor will use reasonable efforts to investigate and resolve the matter with Microf and the Qualified Customer within ten (10) calendar days, unless Microf and Contractor both agree that the Qualified Customer’s dispute or complaint is unreasonable or is not supported by the evidence or disproved via evidence from Contractor.
8. Confidential Information.
(a) The parties hereby acknowledge and agree that, in the course of performing under this Agreement, either Party (“Receiving Party”) may be provided with or given access to Proprietary Information (as defined below), verbally or in written or other tangible form, from the disclosing party (“Disclosing Party”).
(b) For the purposes of this Agreement, “Confidential Information” means any data or information received by the Receiving Party including, but not limited to, any data or information defined herein as a Trade Secret, but which is determined by a court not to be a trade secret under applicable law, financial information, customer lists, pricing information, operating procedures, forms, letters, agreements and all “nonpublic personal information” obtained about a “Consumer” (as such terms are defined in Section 509 of the Gramm-Leach Bliley Act).
(c) For purposes of this Agreement, “Trade Secret” means any information received by the Receiving Party without regard to form, which: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(d) For purposes of this Agreement, “Proprietary Information” means Confidential Information and Trade Secrets. The term “Proprietary Information” shall not include, and neither party shall have any obligation of confidentiality with respect to, information to the extent that it: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Receiving Party and is readily available without substantial effort; (ii) was independently developed by Receiving Party without any use of the Proprietary Information; (iii) became known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of this Agreement by Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (iv) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body.
(e) The Receiving Party (i) shall only use or disclose such Proprietary Information as necessary to implement this Agreement and in accordance with applicable law, (ii) shall disclose Proprietary Information only to those of its employees who have a need to know the Proprietary Information for purposes of performing under this Agreement, and (iii) may not sell, transfer,lease, license, publish, or otherwise make available the Proprietary Information without the Disclosing Party’s prior written approval.
(f) The Receiving Party agrees to maintain and cause its vendors to maintain appropriate administrative, technical, and physical safeguards to ensure the security, confidentiality, and integrity of its networks, confidential information, data, systems, and databases and protect against the unauthorized access, disclosure use, destruction, loss or alteration of such networks, information, data, systems, and databases. Safeguards will include without limitation using reasonable user identification and password control requirements. The Receiving Party’s networks and services will not contain any malicious or destructive software. All consumer data and confidential information will be hosted only in the United States. The Receiving Party will immediately notify the Disclosing Party of any breach or suspected breach of its systems, its networks, or any data, including, but not limited to, any such breach or suspected breach by a third-party vendor (“Breach Notification”). The Breach Notification must be in writing and must include, at a minimum, the data or systems compromised or believed to be compromised, the nature of the compromise, the dates of the compromise, and any mitigating measures that Receiving Party has taken or will take to prevent further breaches. The Receiving Party will answer any reasonable questions that Disclosing Party may have related to any breach or suspected breach. In the event of any breach or suspected breach of Receiving Party’s system, Receiving Party will determine the timing, content, and methods of notification of its consumers, employees, or any other third-party who may have had its information compromised in such breach or suspected breach (if necessary) and, unless required by law, in no event will Receiving Party notify any consumers, employees, or any other third-party of such breach or suspected breach without Disclosing Party’s prior written consent. The Receiving Party will indemnify Disclosing Party for all reasonable expenses and costs associated with notifications and compliance with law occasioned by any such breach or suspected breach.
(g) Upon termination of this Agreement, the Receiving Party shall immediately return to the Disclosing Party, or if so requested destroy, all Proprietary Information and other property belonging to the Disclosing Party.
(h) The restrictions set in this Section shall continue, with respect to the Trade Secrets, for as long as such information continues to be a Trade Secret under applicable law, and with respect to Confidential Information, for a period of three (3) years from the date of expiration or termination of this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, any "nonpublic personal information" of or about a "consumer", as the quoted terms are defined in the Gramm-Leach-Bliley Act, 15 USC § 6801 et seq. and its implementing regulations (the “Act”), shall be maintained in confidence as required by the Act, and the Receiving Party and Disclosing Party shall act at all times in compliance with the Act. Further, Disclosing Party and Receiving Party shall at all times comply with all federal, state and local laws, rules, regulations and ordinances in connection with any information received.

9. Indemnification.
(a) Each Party (“Indemnitor”) shall indemnify and hold harmless the other Party and its subsidiaries, parents, affiliates, assigns, and their respective directors, members, managers, employees, officers and agents (“Indemnitee”), from and against any and all losses, damages,

claims, suits or actions brought against the Indemnitee and directly resulting from (i) the Indemnitor’s material breach of, or failure to comply with, this Agreement; (ii) the negligence, willful misconduct, or intentional wrongful acts of the Indemnitor; (iii) a violation by the Indemnitor, its employees, agents, and franchisees of any federal, state, and local laws, rules and regulations applicable to Indemnitor; or (iv) any advertisements, solicitations or sales practices of Indemnitor, its employees, agents, and franchisees.
(b) Contractor shall indemnify and hold harmless Microf and its subsidiaries, parents, affiliates, assigns, and their respective directors, members, managers, employees, officers and agents from and against any and all actual losses, damages, claims, suits or actions brought against Microf or its subsidiaries, parents, affiliates, assigns, and their respective directors, members, managers, employees, officers and agents and directly resulting from (i) any third-party claim related to the function or lack thereof of the Merchandise and (ii) any third-party claim relating to injury to person or property arising from the Merchandise, its utilization, or its installation.

10. Term; Termination.
(a) The term of this Agreement shall commence on the Effective Date and continue until terminated;
(b) Either Microf or Contractor may terminate this Agreement by giving 30 days’ written notice to the other.
(c) Each Party (“Non-Breaching Party”) shall provide the other Party (“Breaching Party”) written notice within ten (10) days of breach of any of Breaching Party’s material representations, warranties, or covenants set out in this Agreement. Breaching Party shall have seven (7) days from receipt of said written notice (“Cure Period”) to cure any such breach (if such breach is capable of cure). The Non-Breaching Party may terminate this Agreement immediately if such breach is incapable of being cured or if such breach is not cured upon the expiration of the Cure Period. The Breaching Party’s separate obligation to indemnify the Non-Breaching Party under Section 9(i) hereof shall arise upon the expiration of the Cure Period, subject to the terms set forth in this Agreement. Microf has the right, but not the obligation, to offset repurchase and indemnity amounts against any monies Microf may owe Contractor. Contractor shall have no right to offset.
(d) Either Party may, at its option and without notice, terminate this Agreement, effective immediately, should the other Party (i) admit in writing its inability to pay its debts generally as they become due, (ii) make a general assignment for the benefit of creditors, (iii) institute proceedings to be adjudicated as voluntary bankrupt, or consent to the filing of a petition of bankruptcy against it, (iv) be adjudicated by a court of competent jurisdiction as being bankrupt or insolvent, (v) seek reorganization under any bankruptcy act, or consent to the filing of a petition seeking such reorganization, (vi) have a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of such party’s property or providing for the liquidation of such party’s property or business affairs.

(e) Either party may terminate this Agreement immediately in the event it becomes impossible or impracticable to sell the Microf Products due to any governmental act, regulation or rule.
In any case, within thirty (30) days after termination of this Agreement, Contractor shall submit to Microf a complete list of all pending contacts actively pursuing Loans or RPAs under this Agreement which have not consummated or otherwise finalized a Loan or RPA with Microf at the time of such termination. Following termination of this Agreement, the Parties will continue to cooperate with each other with respect to any Qualified Customers using Microf Products prior to such termination.

11. Right of Refund. In the event Contractor materially breaches this Agreement, including but not limited to a breach by Contractor of any of its covenants, representations, or warranties hereunder, then following such breach(es) and the failure of Contractor to fully cure the breach(es) prior to expiration of any applicable Cure Period, Contractor shall, within ten (10) days of written demand by Microf, refund to Microf any amounts paid by Microf for Merchandise that was the subject of the transaction(s) with respect to which the material breach(es) occurred. In the event that Microf demands a refund pursuant to this Section, Contractor shall be permitted to maintain possession of the Equipment related to the amounts being refunded, except that if such Equipment has been delivered to or installed for a consumer at the time of Microf’s demand for refund, Contractor forfeits any and all rights to seek recovery of the Merchandise or payment for the same.

12. Warranties. For RPAs, Contractor shall not utilize any Merchandise with regard to a Microf Product unless said Merchandise: (i) is warranted by manufacturer, (ii) is in unused and undamaged condition, and (iii) was manufactured within 24 months of the date it is delivered to Qualified Customer pursuant to the Microf Product. Contractor shall extend, and does hereby extend, to Qualified Customers leasing Merchandise from Microf any and all warranties Contractor typically provides to its retail customers with respect to such Merchandise, inclusive of any and all manufacturer’s warranties typically administered by Contractor on behalf of the manufacturer. Warranties for Carrier branded Merchandise shall be registered with the manufacturer by Microf. Warranties for non-Carrier branded Merchandise shall be registered with the manufacturer by Contractor and issued in the name of the Qualified Customer. In the event that Contractor does not register non-Carrier branded Merchandise with the manufacturer in the name of the Qualified Customer, Microf may complete such registration, in which case Contractor shall undertake commercially reasonable efforts to assist Microf and the Qualified Customer in the registration and Microf shall not be required to remit the Merchandise Purchase Price to Contractor until the registration is complete. Contractor agrees to service and administer any and all warranty claims with respect to the Merchandise by dealing directly with the Qualified Customers who have a RPA with Microf. Contractor understands that Microf in its RPAs expressly disclaims, to the extent allowed by applicable state law, any and all warranties to the Qualified Customers with respect to the Merchandise, but Microf agrees to cooperate with the Qualified Customer and Contractor to allow Contractor to perform and administer any warranty claims made by a Qualified Customer with respect to the Merchandise.

13. Website; Liability.
(a) Notwithstanding any provision to the contrary contained herein, the following describes the exclusive liability of Microf as to any and all applications submitted by Contractor (or Qualified Customer) to Microf via the Internet or IAPS process or system: Disclaimer of Warranties.
Some jurisdictions may not permit the exclusion of limited warranties. This disclaimer will not apply to the extent that a warranty is incapable of exclusion, restriction or modification under applicable law.
(b) Limitation on Liability. Contractor may not be able to access the website or the services for a number of reasons, such as, but not limited to: causes beyond Microf’s reasonable control; natural catastrophes; governmental actions or omissions; laws or regulations; terrorism; labor strikes or difficulties; viruses created by third parties; communication system breakdowns; hardware or software failures; Microf’s inability to confirm Contractor’s identity or Contractor’s authority to act; changes that Microf or its third party service provider’s make in user access requirements; Microf or its third party service providers inability to procure the supplies or materials needed to support this website or the services; or Microf’s inability to access third party networks, systems and services that are needed to communicate with Contractor or provide the services. Microf makes no representation that the operation of the website or services will be uninterrupted, timely, secure or error-free. Microf shall have no liability for any loss or damage suffered by Contractor as a result of relying on the website, services or any information or services provided by either. Contractor assumes the entire risk of use of, and all risks as to the quality and performance of, the website, services and any information or services provided by either. Microf’s aggregate liability to Contractor in connection with the website and the services under this Agreement during any year will not exceed one hundred dollars ($100). The foregoing represents Microf’s sole liability and Contractor’s sole remedy under this Agreement.

SUCH DAMAGES, INCLUDING CLAIMS FOR LOSS OF GOODWILL, LOST PROFITS, LOST DATA OR CONTENT, LOST USE OF MONEY OR PRODUCTS, STOPPAGE OF WORK, IMPAIRMENT OF ASSETS, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY OR OTHERWISE. This disclaimer and limitation of liability will not apply to the extent that a liability is incapable of exclusion, restriction or modification under applicable law. Contractor acknowledges and agrees that the fees (if any) imposed in connection with the services have been set in reliance upon the disclaimers and limitations on liability set forth in this Agreement.
(d) Third Party Information. Microf may receive, process, and report information that Microf receives from Contractor and others. Microf assumes no responsibility for determining the accuracy, reliability, timeliness, legality or completeness of any information that Contractor provides to Microf. Microf will not have a duty to interpret the content of any data transmitted to Microf or through the website, except to the limited extent set forth in this Agreement. Microf will not have a duty to notify Contractor about any inaccuracy, unreliability, incompleteness or other problem that may be associated with third party information on the website, even if Microf has reason to know of its existence. Use of any information Contractor obtains from the website is at its own risk.
(e) Modifications to Website and Service. Microf reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the website, services, or any part thereof, with or without notice (provided that Microf shall use commercially reasonable efforts to provide written notice of any such modification or discontinuance). Microf shall not be liable to Contractor or to any third party for any modification, suspension or discontinuance of the website or services. Any added services shall be subject to this Agreement unless explicitly stated otherwise in writing.

14. Merger. This Agreement supersedes any prior agreement between Contractor and Microf or an affiliate of Microf with respect to all Contracts entered into between Microf and a Qualified Customer and constitutes the entire understanding of the parties.

15. Waivers. Contractor hereby waives any right to require Microf to (a) proceed against the Qualified Customer under any Contract, (b) proceed against or foreclose any security held by it, or (c) pursue any other remedy in Microf’s power whatsoever. Microf shall have the right to renew, defer, modify, extend time and compromise or adjust claims in connection with Contracts hereunder, and release any security thereon without releasing Contractor from its obligations hereunder to Microf.

16. Notice. All notices required or permitted under this agreement shall be in writing and shall be deemed received when delivered in person or by e-mail or within three (3) days after being deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, to Contractor’s mailing address provided to Microf or to Microf as follows:

Microf LLC
Attn: Legal Department
2849 Paces Ferry Rd SE, Suite 625
Atlanta, GA 30339

17. Sales Tax. The parties acknowledge that because Microf will be purchasing Merchandise from Contractor solely for the purpose of leasing to Qualified Customers in the ordinary course of business, there will be no sales tax due upon the payment of the Purchase Price by Microf to Contractor. Microf will collect and remit rental and/or sales tax from the leasing customers as required by applicable state law. Microf acknowledges it is solely responsible for providing any required Sales Tax Exemption Certificate or equivalent certificate to Contractor in order to avoid being charged sales tax as part of the Purchase Price and Contractor agrees to keep same on file in accordance with applicable state law.

18. Paragraph Headings. The paragraph headings in this Agreement are for convenience only and shall not be deemed to define, limit or describe the scope or intent of this Agreement or in any way affect this Agreement.

19. Amendment or Modification. All amendments to this Agreement shall be made in writing executed by both Microf and Contractor. This Agreement modifies, amends and supersedes all previous Agreements between Microf and Contractor.

20. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.

21. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without reference to conflict of laws principles. Any legal action brought under or in conjunction with this Agreement must be brought in a federal or state court of appropriate jurisdiction in Fulton County, State of Georgia, and the parties hereto irrevocably consent to the jurisdiction and venue of such court and expressly waive any claims or defenses of lack of jurisdiction of or proper venue by such court. In any action between the Parties in connection with this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party, except as otherwise required by applicable law.

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