Terms of Service
LEASE OF EQUIPMENT.
Effective as of the Effective Date, the Lessor agrees to lease and deliver to the Lessee, and the Lessee agrees to lease and accept delivery from the Lessor, all of its right and interest in and to the Equipment. From time to time, the Lessee may lease additional items of equipment from the Lessor pursuant to this Lease. This exhibit shall list such additional items of equipment, and shall be initialed or signed by both Parties. Thereafter such equipment shall be subject to the terms of this Lease and considered “Equipment” for all purposes hereunder.
The rental term (the “Term”) commences on the Effective Start Date for an initial one (1) year period. The Term shall automatically renew for one (1) year periods after the Effective Date unless a party gives the other party notice of non-renewal at least thirty (30) days before the end of the relevant Term. If Lessee provides notice of non-renewal, Lessee shall surrender the Equipment to the Lessor within 10 days of the end of the lease term at Lessee’s expense.
Before taking possession of the Equipment, the Lessee shall pay a security deposit to the Lessor, which shall be returned to the Lessee at the end of the Term; provided, however, that the return of such security deposit shall be contingent on the return of the Equipment to the Lessor in good condition, ordinary wear and tear expected.
Except for Lessee’s rights of use under this Lease, the Equipment is and shall at all times be and remain the exclusive property of the Lessor, even if installed in or attached to real property by the Lessee. The Lessee shall have no right, title, or interest in or to the Equipment except as expressly set forth in this Lease.
INTELLECTUAL PROPERTY RIGHTS.
All right, title, and interest, in and to the Equipment and all copyrights, trademarks, service marks, patents, trade secrets and other proprietary rights embodied therein, and any improved, updated, modified, or additional parts thereof, will at all times remain the property of Lessor or its licensors. [The Equipment is protected by United States copyright and other intellectual property laws and international treaty provisions.] Lessee may not remove the copyright notice or any other proprietary notices from the Equipment. Nothing herein will give or deemed to give Lessee any right, title, interest in or to the same except as expressly provided in the license grant provisions herein. Lessor reserves all rights not expressly granted in this Lease.
CARE, USE, AND MAINTENANCE OF EQUIPMENT.
(a) The Lessee shall keep the Equipment in good condition, and use as intended on clean, dry and flat surfaces.
(b) The Lessee agrees that the Equipment will be operated by competent employees and used solely in the conduct of its business.
(c) The Lessee and its employees shall use the Equipment carefully and properly, and in compliance with all federal, state, and local laws.
(d) Lessee agrees to keep and use the Equipment only at the Lessee’s principal place of business, in the ordinary course of its business. The Lessee agrees not to remove the Equipment from this location without the Lessor’s prior written consent.
(e) Lessee shall not make any alterations or additions to the Equipment without the Lessor’s prior written consent.
(f) The Lessee shall notify the Lessor promptly of any loss, theft, or destruction of all or any part of the Equipment, or of any damage beyond repair to the Equipment, and shall make the Equipment or any wreckage available for disposal.
(g) The Lessee shall not assign, sublease, or transfer the Equipment without the Lessor’s prior written consent.
Lessee shall be responsible for installation of the Equipment in accordance with Lessor’s installation Policy. Lessee acknowledges and agrees that installation of the Equipment may involve rewiring and similar alterations to the locations and that Lessor has no obligation to restore or compensate the Lessee after removal of the Equipment.
TRAINING AND SUPPORT SERVICES.
(a) Lessee will designate one or more employee(s) to act as the coordinator(s) for Lessee’s use of the equipment and the Lessor Services and will require such coordinator(s) to participate in the Equipment and Lessor’s Services training provided from time to time by Lessor.
(b) During the time Lessee is entitled to receive Lessor’s Services, and subject to Section 12 (Exclusions), Lessor or its designee will provide Lessee with reasonable amounts of telephone or e-mail consultation and technical assistance regarding the Equipment and Lessor’s Services during Lessor’s regular working hours. Lessee may call Lessor or its designee at (860)463-0721 or e-mail Help Tablee to firstname.lastname@example.org for support services.
If the Equipment is determined to be defective, by Lessee in written agreement with Lessor, Lessor will ship replacement equipment directly to Lessor. Once Lessee receives replacement equipment, defective Equipment must be returned to Lessor in the shipping package included with the replacement equipment within two (2) days.
If defective Equipment is not returned or if an Equipment returned that is not covered pursuant to Section 12, Lessee will be charged up to the full fair market price of the replacement device.
LESSOR’S REPRESENTATIONS AND WARRANTIES.
The Lessor hereby represents and warrants to the Lessee as follows
(a) The Lessor has the right to lease the equipment, as provided in this lease, and disclaims any and all other warranties, express or implied, including but not limited to the design or condition of the equipment, and implied warrantied of merchantability or fitness for a particular purpose.
(b) During the Term and subject to the terms and provisions hereof, the Lessor shall be responsible for any & all routine maintenance required by the Leased Equipment during the term of this agreement.
(c) Lessor warrants to Lessee that Equipment and its accessories released from Lessor will be free from defects in material and workmanship that prevent the Equipment from functioning in accordance with its specifications.
(d) Lessor warrants to Lessee that installation services provided by Lessor or its authorized subcontractors will be free from defects in workmanship.
(e) Warranty claims must be made by notifying Lessor in writing promptly after Lessee learns of the facts supporting a warranty claim. Subject to Section 12 (Exclusions) and the provisions of Lessor’s then-current applicable warranty policy, Lessor will, at its discretion, either repair or replace any noncomplying Equipment with an Equipment of equivalent functionality, and, if applicable, remedy any defects in the installation of the Device.
(f) THE REMEDIES IN THIS SECTION ARE LESSOR’S ONLY OBLIGATION AND LESSEE’S ONLY REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER.
LESSEE’S REPRESENTATIONS AND WARRANTIES.
The Lessee hereby represents and warrants to the Lessor as follows:
(a) Each item of Equipment is being leased for use in the conduct of the Lessee’s business.
(b) If, after the Effective Date, the Equipment does not operate properly, or is unsatisfactory for any faulty manufactured reason, the Lessee shall make any claim on account thereof against the Lessor. Lessee has the right to request equipment replacement
(c) The execution, delivery, and performance of this Lease do not violate any law or governmental rule, regulation, or order applicable to the Lessee.
(d) LIABILITY FOR LOSS AND DAMAGE. If the Equipment is damaged or lost while in the Lessee’s possession, the Lessee shall be responsible for such damage or loss and shall pay to the Lessor the value of the lost or damaged Equipment. The value of the Equipment shall be the fair market value of the Equipment on the date of such damage or loss.
On receipt of any such payment, the Lessor shall, to the extent of the amount paid, assign to the Lessee the rights with replacement to the damaged or lost Equipment, together with all of the Lessor’s interest in the Equipment.
(a) Defects or damage resulting from use of the Product in other than its normal and customary manner;
(b) Defects or damage from misuse, accident or neglect;
(c) Defects or damage from improper operation, maintenance, installation, adjustment or any alteration or modification of any kind;
(d) Products disassembled or repaired in such a manner as to adversely affect performance or prevent adequate inspection and testing to verify any claim;
(e) Products with labels removed or illegible serial numbers;
(f) Defects or damage due to spills of or immersion in food or liquid;
(g) Scratches on all plastic surfaces and externally exposed parts resulting from normal use;
(h) Damage resulting from normal wear and tear; and/or
CONSEQUENTIAL AND SPECIAL DAMAGES.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFITS, ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST THE OTHER PARTY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS BEING BROUGHT AGAINST THE OTHER. THIS LIMITATION ON DAMAGES AND CLAIMS IS INTENDED TO APPLY TO ANY AND ALL CLAIMS OF EITHER PARTY WITHOUT REGARD TO WHICH OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR PROVEN INEFFECTIVE.
LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR PERSONAL INJURY, PROPERTY OR EQUIPMENT DAMAGE EXCEPT PERSONAL INJURY, PROPERTY OR EQUIPMENT DAMAGE DIRECTLY CAUSED BY THE WILLFUL, UNLAWFUL OR NEGLIGENT ACT OR OMISSION OF A PARTY, ITS EMPLOYEES, AGENTS AND REPRESENTATIVES.
THE CUMULATIVE LIABILITY OF LESSOR TO LESSEE FOR ALL CLAIMS WHATSOEVER RELATED TO THE LEASE, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL RENT DUE IN TOTAL FOR THE THEN CURRENT YEAR OF THE LEASE. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO ANY AND ALL CLAIMS OF LESSEE, WITHOUT REGARD TO WHICH OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
TAXES AND FEES.
During the Term, the Lessee shall be responsible for 1) all applicable taxes and 2) early termination fees on equipment leased. Lessee also agrees to pay any additional interest and charges due to insufficient funds applied to Lessee’s account.
The occurrence of any of the following events (each an “Event of Default”) shall constitute a default of this Lease
(a) The failure to make a required payment under this Lease as and when due, including but not limited to Rent, interest charges, sums due as an indemnity, excess item expenses, or other charges;
(b) The breach or violation by the Lessee of any term, covenant, promise, agreement, representation, or warranty of this Lease;
(c) The insolvency or bankruptcy of the Lessee;
(d) Any default, breach, or violation of or under any debenture, bond, or evidence of indebtedness of the Lessee; or
(e) Subjection of any of the Lessee’s property to any levy, seizure, assignment, application or sale for or by any creditor or government agency.
RIGHTS OF LESSOR ON DEFAULT.
On the occurrence of any Event of Default under Section 14, the Lessor shall have the right, with notice, to terminate this Lease and take possession of the Equipment, in addition to any other rights afforded to the Lessor by law. The Lessee shall not be released from paying damages sustained by the Lessor on such termination. If on any termination of this Lease the Lessee fails or refuses to deliver the Equipment to the Lessor, the Lessor shall have the right to enter the Lessee’s premises and retake possession of the Equipment without legal process. The Lessee releases any claim or right of action for trespass or damages caused by the Lessor’s entry and repossession.
If the Lessee fails to pay when due Rent, or any other charges or amounts payable by the Lessee to the Lessor hereunder, the Lessee shall be charged interest on such unpaid sums at the rate of 10% per month. Interest shall be calculated from the due date of such amount to the actual payment date. Lessor has the right to immediately cancel the Lease in the event Lessee misses two consecutive months of Rent.
TERMINATION OR SUSPENSION OF SERVICE.
(a) Termination and/or Suspension by Lessor. Lessor reserves the right to change, limit, terminate, modify or temporarily or permanently cease providing the Service or any part of it with or without prior notice.
(b) Deletion of Data upon Termination. Lessee agrees that if Lessee’s service is terminated for any reason, Lessor has the right to immediately delete all data, files and other information stored in or Lessee’s account without further notice to Lessee.
(c) Return of Equipment upon Termination. If Lessee’s Service is terminated for any reason prior to the end of the first year of service, Lessee must return the Equipment to Lessor within 30 days or Lessee will be charged for the Equipment. Failure to return any Equipment received from Lessor, or returning Equipment in a damaged condition (subject only to reasonable wear and tear), will result in the imposition of an Equipment fee that may be substantial.
The Lessee shall indemnify the Lessor against all losses, damages, claims, suits, actions, costs, expenses, obligations, or disbursements, including legal expenses, incurred by the Lessor in any way connected to the Lessee’s use or possession of the Equipment during the Term.
RETURN OF EQUIPMENT.
At the end of the Term, unless the Lessee opts to renew the Lease, the Lessee shall be obligated to return the Equipment within 30 days to the Lessor at the Lessee’s expense.
LESSOR’S RIGHT OF INSPECTION.
The Lessor shall have the right, on prior written notice to the Lessee, to inspect the Equipment during the Lessee’s normal business hours.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing for effectiveness.
Lessee will not assign or subcontract the Lease any interest therein or any right therein without the prior written consent of Lessor. Nothing herein shall prevent Lessor from assigning the Lease to any affiliate or subsidiary or to any entity that acquires all or substantially all of Lessor’s assets or securities.
Any dispute regarding this Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia (without regard to its conflict of laws’ provisions). The parties agree that they submit to the personal jurisdiction of the competent courts of the Commonwealth of Virginia in Richmond, Virginia and the courts of the United States sitting in the Eastern District of Virginia (Richmond Division), in any controversy or claim arising out of the sale contract. In the event that litigation results from or arises out of this Lease or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
Whenever possible, each provision of this Lease, will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Lease is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Lease will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
This Lease, together with Exhibit A and any and all other subsequently added schedules and exhibits, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior understandings, both written and oral, between the Parties.
Headings used in this Lease are provided for convenience only and shall not be used to construe meaning or intent.
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