OMNICHARGE EQUIPMENT LEASE POLICY
By purchasing the product from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”, “Terms”), including those additional terms and conditions and policies referenced herein.
- PROPERTY LEASED; TITLE:
- Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the personal property, together with all replacements, parts, repairs, additions, attachments and accessories incorporated therein (individually called a “Unit” and collectively called the “Equipment”) described in each Equipment Lease Schedule executed from time-to-time pursuant to this Master Lease..
- It is expressly understood that the Equipment is, and shall at all times remain, personal property of the Lessor. Lessee shall have no right, title or interest in the Equipment except as expressly provided herein. If requested by Lessor, Lessee will obtain, prior to delivery of any Unit, a certificate satisfactory to Lessor from all parties with a real property interest in the premises where the Equipment shall be located, waiving any claim with respect to the Equipment. If Lessor supplies Lessee with labels, plates or other markings stating that the Equipment is owned by Lessor, Lessee shall attach the same in a prominent place on the Equipment.
- TERM; RENT:
- This Master Lease shall commence on the date set forth above and shall continue so long as any Schedule remains in effect. Each Schedule shall set forth the basic term of the Schedule (“Basic Term”), the periodic rent for each Unit (“Monthly Rent”), the delivery date of each Unit (“Delivery Date”), the commencement date (“Commencement Date”), the delivery location of each Unit (“Equipment Location”) and all other additional terms. The Basic Term for a Schedule shall begin on the Commencement Date and shall continue thereafter for the number of months specified therein. As to each Unit, the term for each Schedule (“Initial Term”) shall begin on the Delivery Date of such Unit, and shall continue throughout the expiration of the Basic Term. The Delivery Date shall be the earlier of (i) the date such Unit is installed and operational for purposes of the Schedule at the Equipment Location, or (ii) 7 days after Lessor has made such Unit available for delivery to Lessee, except, that if the company designated by Lessee to install such Unit shall notify Lessee that it is unable to install such Unit due solely to the condition of such Unit, then the Delivery Date shall be as set forth in subclause (i) herein. The Commencement Date shall be the first day of the calendar month following the latest Delivery Date of any Unit, provided, however, if such Delivery Date falls on the first day of the month, the Commencement Date shall be such Delivery Date.
- Lessee shall pay to Lessor the sum of (a) the Monthly Rent, payable in advance on the Commencement Date and on the first day of each month thereafter during the Initial Term or any extension thereof, and (b) an amount equal to 1/30th of the Monthly Rent for each Unit times the number of days which have elapsed from the Delivery Date of such Unit to the Commencement Date, which amount shall be paid on the Commencement Date. Monthly Rent for each Unit shall be as specified in the Schedule, and shall be payable at Lessor’s address set forth above, or at such other address as Lessor may designate in writing, without further notice or demand therefore.
- As security for the prompt and full payment of rent, and the faithful and timely performance of all provisions of this Lease, and any extensions or renewals thereof, Lessee shall pledge and deposit with Lessor the security amount set forth in the section shown as “Security Deposit” on each respective Schedule. In the event any default shall be made in the performance of any of Lessee’s obligations under this Lease, Lessor shall have the right, but shall not be obligated, to apply said security to the curing of such default. Within 15 days after Lessor mails notice to Lessee that Lessor has applied any portion of the Security Deposit to the curing of any default, Lessee shall restore said Security Deposit to the full amount set forth in the Schedules.
- NET LEASE:
Each Schedule executed hereunder shall constitute a net lease and Lessee agrees that its obligation to pay all Monthly Rent and other sums payable hereunder (“Rent”; “Rent” and “Monthly Rent” are sometimes referred to herein together as “Rent”), shall be absolute and unconditional and shall not be subject to any abatement, reduction, set-off, defense, counterclaim or recoupment (“Abatements”) whatsoever, including without limitation, Abatements due to any past, present or future claims arising under this Master Lease, any Schedule or otherwise of Lessee against Lessor or any assignee of Lessor (“Assignee”), or against the manufacturer or seller of any Unit or against any other person or entity.
Lessee represents and warrants that: (a) it has selected each Unit based on its own judgment and expressly disclaims any reliance upon statements made by Lessor, and (b) as of the Delivery Date, as between Lessee and Lessor, Lessee shall have unconditionally accepted such Unit.
- WARRANTIES; DISCLAIMER OF WARRANTIES:
- Lessor warrants that (a) so long as no Event of Default has occurred and is continuing hereunder, (i) Lessee shall have the right of quiet and peaceful use, possession and enjoyment of the Equipment, subject to and in accordance with the provisions of this Master Lease, and (ii) notwithstanding any assignment, transfer, or grant of security interest by Lessor, neither Lessor nor any Assignee shall interfere with Lessee’s said right of quiet enjoyment of the Equipment, and (b) as of the Delivery Date, (i) Lessor shall have title to the Equipment or the right to lease the Equipment to Lessee, and (ii) the Equipment shall be eligible for the manufacturer’s standard maintenance agreement.
- LESSOR MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE DESIGN OR CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS OR CAPACITY OR DURABILITY FOR ANY PARTICULAR PURPOSE, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF THE EQUIPMENT OR CONFORMITY OF THE EQUIPMENT TO THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE ORDER OR ORDERS RELATING THERETO, AND LESSOR EXPRESSLY DISCLAIMS THE SAME, AND, AS TO LESSOR, LESSEE LEASES THE EQUIPMENT “AS IS”. LESSOR SHALL HAVE NO LIABILITY TO LESSEE FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, OR BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH, ARISING IN STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. Notwithstanding the foregoing, provided no Event of Default shall have occurred or be continuing hereunder, Lessee shall be entitled to the benefit of any applicable manufacturer’s warranties and such warranties are hereby assigned by Lessor for the benefit of Lessee, to the extent assignable. Upon Lessee’s request and at the sole expense of Lessee, Lessor shall provide reasonable assistance to Lessee in enforcing any such warranties. As to new Equipment, Lessee acknowledges that Lessee ordered the Equipment from the supplier thereof, and either (a) Lessee received a copy of the contract by which Lessor acquired the Equipment, or (b) Lessor has informed Lessee in writing of (i) the identity of the supplier, (ii) that Lessee may have rights under said contract and may be entitled, under the version of Uniform Commercial Code Article 2A (“UCC 2A”) as in effect in the state specified in Section 28, to the benefit of warranties provided to Lessor by said supplier, and (iii) that Lessee may and should contact the supplier to receive an accurate and complete description of such rights including any disclaimers or limitations on them or of the remedies thereunder. Lessee makes this acknowledgement that each such Schedule shall qualify as and be a “finance lease” under UCC 2A. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY SECTIONS 2A-401 AND 2A-402, AND SECTIONS 2A-508 THROUGH 2A-522 OF THE UCC, PROVIDED HOWEVER, THAT THE FOREGOING WAIVER WILL IN NO EVENT IMPAIR OR DIMINISH ANY RIGHT OR REMEDY OTHERWISE CONFERRED UPON LESSEE HEREUNDER.
- USE; MAINTENANCE; INSPECTION:
- Lessee shall comply with all laws, regulations and orders of any governmental branch or agency which relate to the use, possession or operation of the Equipment, and shall use the Equipment in the regular course of its business only, within its normal capacity, without abuse.
- Lessee shall pay all delivery, transportation, rigging, unpacking and repacking, drayage, handling and insurance charges on the Equipment upon delivery to Lessee and upon redelivery to Lessor upon the expiration or earlier termination of the Initial Term or any extension thereof, to such destination as is specified by Lessor within the continental United States of America (“Return Location”). Lessee shall furnish appropriate delivery facilities for the Equipment.
- Lessee, at its own expense, shall maintain the Equipment in good operating condition, repair and appearance, and protect the same from deterioration other than normal wear and tear, and shall enter into, and keep in force a maintenance agreement with the manufacturer of the Equipment. Lessee shall cause the manufacturer to keep the Equipment in good and efficient working order, less normal wear and tear, in full compliance and in accordance with the provisions of such maintenance agreement and shall furnish evidence of such agreement to the Lessor upon request. During Lessee’s normal business hours, Lessee shall provide the manufacturer’s field engineering representatives with access to the Equipment to install engineering changes necessary to keep the Equipment at currently announced engineering change levels. Upon return of any Unit, Lessee shall provide Lessor evidence from the manufacturer stating the Equipment is at currently announced engineering change levels and is qualified for the manufacturer’s maintenance agreement.
- During Lessee’s normal business hours, upon prior written notice to Lessee and subject to Lessee’s reasonable security procedures, Lessee shall permit Lessor or its designee to inspect the Equipment, Lessee’s equipment log and maintenance records.
- DAMAGE; DESTRUCTION OR LOSS:
- Upon delivery of the Equipment to Lessee until the Equipment is redelivered to the Lessor, Lessee shall bear the entire risk of loss, damage, or destruction with respect to the Equipment resulting from any cause whatsoever.
- If any Unit becomes damaged, partially damaged or damaged beyond repair, lost, stolen, destroyed or permanently rendered unfit, or in the event of any condemnation or requisition of title or use of any Unit by any governmental authority (any such occurrence being hereinafter referred to as an “Event of Loss”), then Lessee shall promptly notify Lessor and shall do either of the following within thirty (30) days after the occurrence of an Event of Loss:
- At its expense, promptly repair the affected Unit to its original capacity and condition or replace the affected Unit with a newer unit of identical make, model, configuration, capacity and condition, in good repair, free and clear of all Liens, in which case any such replacement unit shall become the property of Lessor and for all purposes of this Master Lease shall be deemed to be the Unit which it replaced; or
- Terminate the Schedule with respect to the affected Unit and pay to Lessor on the next payment date, an amount equal to (i) if specified in the Schedule, the Casualty Value set forth therein
- SURRENDER OF EQUIPMENT:
Upon the expiration or earlier termination of any Schedule with respect to any Unit, Lessee shall, unless Lessee has paid Lessor in cash the Casualty Value of the Unit plus any accrued Rent and any other payments due, at Lessee’s expense, deinstall, repackage and return the Equipment to Lessor to the Return Location, in the condition described in Section 6 hereof. Lessee shall bear the risk of damage or loss until delivery of the Equipment to the Return Location.
- ASSIGNMENT OR SUBLEASE BY LESSEE:
LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF ALL OR ANY UNIT WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
As to any assignment or sublease permitted hereunder, the following additional conditions shall apply:
9.1. Equipment shall not be relocated outside of the United States of America;
9.2. Lessee shall give to Lessor prior written notice of the location of the Equipment and the identity of the lessee thereof (“Subsequent Lessee”) thirty (30) days prior to delivery of the Equipment at Subsequent Lessee’s location;
9.3. No sublease or assignment shall in any way discharge or diminish any of Lessee’s obligations to Lessor under the Master Lease or any Schedule thereto;
9.4. Any sublease or assignment shall be expressly subject and subordinate to the terms and conditions of this Master Lease and the applicable Schedule, the terms and conditions thereof shall be subject to Lessor’s reasonable approval, and Lessee shall assign its rights thereunder to Lessor and Assignee as additional collateral and security for the performance of Lessee’s obligations hereunder; and
9.5. Lessee shall grant to the Lessor the right to submit and match the last proposal for the sublease or assignment of the Equipment and to submit and match the last proposal for the financing or lease of any equipment which is to replace Equipment.
Lessee shall not move or permit to be moved any Equipment from the Equipment Location without the prior written consent of Lessor, which consent shall not be unreasonably withheld; provided, however, in no event shall any Equipment be moved to a location outside the United States of America. Risk of loss and all costs and expenses incurred in connection with any movement of Equipment shall be the responsibility of Lessee.
Lessee and Lessor acknowledge that the Equipment may contain or include a description of certain software (“Software”) in which Lessor and Lessee have no ownership or other proprietary rights. Where required by the Software owner, manufacturer or distributor, Lessee shall enter into a license or other agreement for the use of such Software. Any Software agreement shall be separate and distinct from this Master Lease and any Schedule, and Lessor and Assignee shall not have any obligations thereunder, but shall have the right to require Lessee to terminate Lessee’s use of the Software if an Event of Default shall occur and shall be continuing hereunder. In the event Rent specified in a Schedule includes an amount attributable to the financing by Lessor of Lessee’s fee for use of Software, Lessee agrees that such amount shall be deemed Rent and subject to all the provisions of this Master Lease.
- LESSOR’S RIGHT TO CURE:
If Lessee fails to perform any obligations hereunder, then Lessor, in addition to all of its rights and remedies hereunder, may perform the same, but shall not be obligated to do so, at the cost and expense of Lessee. In such an event, Lessee shall promptly reimburse Lessor for any such costs and expenses incurred by Lessor together with interest thereon at the Late Payment Rate from the date incurred to the date reimbursement is made. All payments and advances made by the Lessor shall be deemed Rent.