TERMS AND CONDITIONS OF LEASE

 

Partner has agreed to lease certain equipment from Axcient (the “Equipment”) as indicated in an order being placed online at Axcient’s portal (the “Order”). These Terms and Conditions of Lease and the Order (collectively, the “Lease”), set forth the terms and conditions applicable to the lease of such Equipment.  References below to “you,” “your” and similar expressions refer to the Partner and to “us,” “we,” “our” and similar expressions refer to Axcient.

 

  1. COMMENCEMENT OF LEASE; RENTAL PAYMENTS; LEASE TERM . You agree to lease from us the Equipment and remit to us the monthly rental payments (the “Rental Payments”) and applicable taxes for the full Lease Term, defined below. The monthly Rental Payments were agreed to by you as part of the Order for the Equipment, and are due and payable on the first day of each calendar month during the Lease Term. The Lease Term begins on the date that you receive the Equipment and shall continue for thirty six (36) full calendar months thereafter. You are required to make 36 monthly Rental Payments during the Lease Term. Once you agree to the Order, you may not cancel the Lease during the Lease Term. Rental Payments are due whether or not you receive an invoice.

 

  1. TAXES. You agree to pay us, when invoiced, all sales and use taxes, personal property taxes and other similar charges imposed relative to this Lease, the Rental Payments or the Equipment. If you are exempt from any such taxes, you must notify us in writing and provide us with sufficient documentation evidencing such exemption.

 

  1. NET LEASE. This Lease is a net lease and your payment obligations hereunder are absolute and unconditional and are not subject to cancellation, abatement, reduction, recoupment, defense or setoff for any reason whatsoever.

 

  1. OWNERSHIP. We (or our financing source) will retain all title to the Equipment unless and until you exercise the Purchase Option available to you at the end of the Lease Term. To secure your obligations to us under this Lease, you grant us a first priority security interest in the Equipment and all related proceeds. You irrevocably grant us the power to prepare, sign on your behalf (if applicable), and file, electronically or otherwise, a financing statement and any amendment thereto or continuation thereof relating to the Equipment, and containing any other information required by the applicable Uniform Commercial Code. At our request, you will attach identifying labels supplied by us showing our interest in a prominent position on each unit of Equipment.

 

  1. MAINTENANCE. You will, at your own expense, (a) keep the Equipment in good repair, condition and working order, ordinary wear and tear excepted, free of all claims, liens and encumbrances of any kind or nature, (b) not move the Equipment from the equipment location as set forth in the Order without our prior written consent, (c) use the Equipment solely for commercial purposes in the manner for which it is intended and in compliance with all applicable laws and manufacturer requirements or recommendations, (d) perform all service and maintenance requirements described in the operator’s and instrument manuals provided by the manufacturer and keep the Equipment eligible for any manufacturer’s warranty certification, and (e) give us reasonable access to inspect the Equipment and its maintenance and other records. All additions, upgrades, replacement parts and attachments will become part of the Equipment unless they can be easily removed without damage to the original Equipment. You will not attach any of the Equipment to any real estate. Upon our reasonable request and at your cost, you will get each person with an interest in the real estate where the Equipment is located to waive any rights they may have in the Equipment.

 

  1. DISCLAIMER OF WARRANTIES. You have selected the Equipment. You acknowledge that the supplier or manufacturer of the Equipment and their respective representatives are not our agents and are not authorized to modify the terms of this Lease. You are aware of the name of the manufacturer or supplier of each item of Equipment and you will contact the manufacturer or supplier for a description of your warranty rights. You agree to settle any dispute you may have regarding performance of the Equipment with the manufacturer or supplier of the Equipment. WE ARE LEASING THE EQUIPMENT TO YOU “AS-IS”. WE HAVE NOT MADE AND DO NOT MAKE ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE EQUIPMENT INCLUDING, WITHOUT LIMITATION, ITS DESIGN, MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. WE SHALL HAVE NO LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATING TO THE EQUIPMENT OR THIS LEASE. WE WILL NOT BE LIABLE FOR SPECIFIC PERFORMANCE OF THIS LEASE OR FOR ANY LOSSES, DAMAGES, DELAY OR FAILURE TO DELIVER THE EQUIPMENT. You agree to waive all rights and remedies conferred upon a lessee by Article 2A (Sections 508-522) of the Uniform Commercial Code. To the extent permitted by applicable law, you also hereby waive any rights now or hereafter conferred by statute or otherwise that may limit or modify any of our rights or remedies under this Lease, including any rights you may have which require us to (a) sell any Equipment to mitigate damages or (b) provide you with notices of default, intent to accelerate amounts becoming due or acceleration of such amounts. Unless you are in default under this Lease, you may at your own expense enforce all warranties and other rights directly against the manufacturer.

 

  1. INDEMNITY. You are responsible for, and agree to defend and indemnity us against, all losses, damages, claims, injuries and attorneys’ fees incurred or asserted by any person that relate to the Equipment. We reserve the right to control the defense and to select or approve defense counsel. This indemnity survives the expiration or termination of this Lease.

 

  1. LOSS OR DAMAGE. If any item of Equipment is lost, stolen or damaged, you will (and Rental Payments will continue to accrue without abatement), at your option and cost, either (a) repair the item or replace the item with a comparable item reasonably acceptable to us (and if a comparable item is obtained, you will transfer ownership of such item to us by executing a transfer document prepared by us and such item shall become the Equipment hereunder), or (b) pay us a sum equal to (1) all Rental Payments and other amounts then due and payable under this Lease, and (2) the present value of (i) all Rental Payments to become due during the remainder of the Lease Term, and (ii) the Purchase Option amount set forth in this Lease, each discounted at (x) 4% per annum (the total due under this clause (b) is referred to as the “Net Book Value”). We will then transfer to you all our right, title and interest in the Equipment “AS-IS, WHERE-IS” WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. Insurance proceeds will be applied toward repair or replacement of the Equipment or payment hereunder, as applicable, as determined by us.

 

  1. INSURANCE. You are responsible for loss and damage to the Equipment from any cause whatsoever on and after delivery thereof. You agree, at your cost to: (a) keep the Equipment insured against all risks of physical loss or damage for its full replacement value, naming us as loss payee; and (b) maintain public liability insurance, covering personal injury and property damage with coverage of least $1,000,000, naming us as additional insured. Prior to commencement of this Lease and at any time upon our request, you must provide us with a certificate of insurance evidencing such coverage.
  2. DEFAULT. An Event of Default will occur if: (a) we do not receive any Rental Payment or other payment within 10 days of its due date, (b) you do not perform any of your other obligations under this Lease, and such failure continues for 10 days after we notify you of it, (c) any representation you have made in this Lease shall prove to have been false or misleading in any material respect (d) you become insolvent, are liquidated or dissolved, stop doing business or assign your rights or property for the benefit of creditors, (e) a petition is filed by or against you under any bankruptcy or insolvency law, (f) if you are a sole proprietorship, you die or have a guardian appointed, or (g) you default on any other agreement between you and us (or our affiliates).

 

  1. REMEDIES. If an Event of Default occurs, we may, in our sole discretion, do any or all of the following: (a) cancel or otherwise terminate this Lease or any other Lease or agreement between you and us, (b) require you to immediately pay us, as compensation for loss of our bargain and not as a penalty, a sum equal to the Net Book Value, (c) require you to return the Equipment in accordance with Section 13, (d) repossess the Equipment without court order and you will not make any claims against us (or our agent) for damages or trespass or any other reason if we take such action, and (e) exercise any other right or remedy available at law or in equity. You agree to pay all of our costs of enforcing our rights against you, including attorneys’ fees. We may, but will have no obligation to, sell or otherwise dispose of the Equipment, with or without notice to you, at a public or private sale, and without any duty to account to you with respect to such action or inaction or for any proceeds with respect thereto. You agree that (a) if notice of sale is required by law, five days advance notice will constitute reasonable notice, (b) we may apply the proceeds of any sale or other disposition of the Equipment (after deducting all costs and expenses related to the repossession, sale or other disposition) to the amounts you owe us, (c) you will remain responsible for any balance which may remain after we apply such net proceeds, and (d) we will retain all rights and remedies even if we do not choose to enforce them at the time of your default.

 

  1. END OF LEASE OPTIONS. If you are not in default, you will have the option at the end of the Lease Term to (a) return the Equipment to us in accordance with Section 13, or (b) on written notice to us given at least 60 days prior to the end of the Lease Term, purchase all but not less than all of the Equipment for a purchase price equal to the monthly Rental Payment multiplied by three (“the “Option Purchase Price”) (and all applicable taxes). Upon payment of such Option Purchase Price and applicable taxes, we will transfer the title to the Equipment to you “AS IS, WHERE IS” WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER. IF YOU FAIL TO EXERCISE THE PURCHASE OPTION, YOU MUST RETURN THE EQUIPMENT TO US IN ACCORDANCE WITH SECTION 13..

 

  1. RETURN OF EQUIPMENT. If (a) an Event of Default occurs and we require you to return the Equipment, or (b) you do not purchase the Equipment at the end of the Lease Term, at your cost and risk you will promptly (i) place the Equipment in good order and condition (except for ordinary wear and tear from normal use), (ii) cause the Equipment to be disassembled, deinstalled, inspected, tested and crated in accordance with the manufacturer’s recommendations and any and all local, state and federal regulatory requirements then in effect, and (iii) immediately return the Equipment, freight and insurance prepaid, at your risk to any location and aboard any carrier we may designate in the continental United States. Any such Equipment will be accompanied by all accessories originally included with the Equipment, qualifies (if applicable) for continued maintenance under a manufacturer’s service and maintenance contract. IF YOU DO NOT RETURN THE EQUIPMENT TO US WITHIN 20 DAYS AFTER THE END OF THE LEASE TERM, YOU SHALL BE IN MATERIAL BREACH OF YOUR OBLIGATIONS UNDER THIS SECTION 13 AND AGREE TO PAY US LIQUIDATED DAMAGES IN AN AMOUNT EQUAL TO THE MONTHLY RENTAL PAYMENT MULTIPLIED BY FOUR PLUS APPLICABLE TAXES (WHICH YOU AGREE IS A REASONABLE ESTIMATE OF OUR DAMAGES FROM YOUR MATERIAL BREACH). UPON PAYMENT OF SUCH AMOUNT, WE WILL TRANSFER TITLE TO THE EQUIPMENT TO YOU “AS IS, WHERE IS” WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER.

 

  1. ASSIGNMENT. You will not sell, assign or sub-lease the Equipment or your interest in this Lease, or file or permit a lien to be filed against the title to the Equipment. We may, without notifying you, (a) release any information we possess on you and this Lease to any prospective investor, participant or purchaser of this Lease, and (b) sell, assign, or transfer this Lease and our interests in the Equipment. You agree that the new owner or any of our assignees and transferees will have the same rights and benefits that we now have under this Lease but none of our obligations. The rights of the new owner or any of our assignees and transferees will not be subject to any claim, defense, or set-off that you may have against us.

 

  1. PAST DUE PAYMENTS. We may charge you a late charge equal to 10% of any late payment, but not more than the highest legal rate. Any Rental Payments and other payments not made when due will accrue interest at the lower of 18% per annum or the highest legal rate from their due date until paid.

 

  1. COMPLIANCE WITH LAWS. You understand that the Equipment may be purchased for cash for an amount equal to the purchase price thereof or it may be leased. By signing this Lease, you acknowledge that you have chosen to lease the Equipment from us for the Lease Term and agreed to remit Rental Payments and other sums to us. WE BOTH INTEND TO COMPLY WITH ALL APPLICABLE LAWS. IF IT IS DETERMINED THAT YOUR PAYMENTS UNDER THIS LEASE RESULT IN AN INTEREST PAYMENT HIGHER THAN ALLOWED BY APPLICABLE LAW, THEN ANY EXCESS INTEREST COLLECTED WILL BE APPLIED TO AMOUNTS THAT ARE LAWFULLY DUE AND OWING UNDER THIS LEASE OR WILL BE REFUNDED TO YOU. IN NO EVENT WILL YOU BE REQUIRED TO PAY ANY AMOUNTS IN EXCESS OF THE LEGAL AMOUNT.

 

  1. YOUR REPRESENTATIONS. You represent and warrant that (a) you have the lawful power and authority to enter into this Lease, (b) the individuals signing this Lease have been duly authorized to do so on your behalf, (e) by entering into this Lease you will not violate any law or other agreement to which you are a party, (d) you are not aware of anything that will have a material adverse effect on your ability to satisfy your obligations under this Lease, (e) all financial information you have provided and will provide to us is true, correct and complete and provides an accurate representation of your financial condition, and (I) the location of your chief executive office, state of incorporation or organization, exact legal name, place of residence and organizational identification number, as applicable, have been correctly identified to us.

 

  1. MISCELLANEOUS. You agree that during the Lease Term (a) you will promptly notify us in writing if there is a change in the name, state of incorporation or formation or organizational number (if any) of your business, or if there is a change in your ownership, (b) you will provide such financial information we may reasonably request, (c) you will take any action we reasonably request to protect our rights in the Equipment and this Lease, and (d) we may insert missing information or correct obvious errors or your legal name in this Lease without further notice to you. This Lease constitutes the entire agreement between you and us and supersedes any conflicting equipment purchase order or other written or oral agreement. Except as noted in clause (d) above, no modification of this Lease will be binding unless in writing and signed by you and us. Any claim you have against us must be made within one year after the event that caused it. TIME IS OF THE ESSENCE IN THIS LEASE. If a court finds any provision of this Lease to be unenforceable, the remaining terms will remain in effect. If you fail to comply with any provision of this Lease, we have the right but not the obligation to have such provision brought into compliance and all expenses we incurred in bring about such compliance will be considered additional rent hereunder, which is due within five (5) days after the date we send to you a written request for payment. All our and your written notices must be sent by certified or first class mail or recognized overnight delivery service, postage prepaid, to you at your address set forth in the Order or our address at: Axcient, 707 17th St. Suite 3900 Denver, CO 80202; Attention: Legal. At any time after this Lease is agreed to, you or we may change an address by giving notice to the other of the change. You hereby acknowledge and confirm that you have not received any tax, financial, accounting or legal advice from us, the manufacturer or supplier of the Equipment.

 

  1. The parties shall settle any dispute, claim or controversy arising out of this Lease, and including any dispute as to the enforceability of this arbitration provision, by arbitration in Denver, Colorado in accordance with the Commercial Arbitration rules of the American Arbitration Association. After a demand for arbitration, the parties shall attempt to agree upon a single arbitrator to arbitrate the dispute. If the parties do not agree upon an arbitrator within thirty (30) days of the applicable demand for arbitration, then the parties agree that the dispute shall be arbitrated before a single arbitrator appointed by the American Arbitration Association in accordance with its Commercial Arbitration Rules.  The arbitrator may award injunctive relief, actual damages, and attorneys’ fees and costs as part of the award, but shall have no authority to award any penalties or any special, consequential, punitive, or exemplary damages or to alter or modify any express provision of this Lease or to render any award which by its terms affects such a modification or alteration.  The award of the arbitrator shall be final and binding and may be entered as a judgment in any court of competent jurisdiction, including the courts referred to in Section 20 below.  The Parties consent to the jurisdiction of such courts referred to in Section 20 for such purpose. Notwithstanding the foregoing, nothing in this Section 19 shall preclude a party from seeking and obtaining injunctive relief in the courts referred to in Section 20, or in any other court having jurisdiction where Axcient is the party seeking the injunction, based upon a breach of this Lease or facts arising out of this Lease where Axcient does not have an adequate remedy at law.

 

  1. CHOICE OF LAW; JURISDICATION. THIS LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO. BOTH PARTIES CONSENT TO THE JURISDICTION AND VENUE OF FEDERAL AND STATE COURTS IN COLORADO FOR ALL DISPUTES ARISING UNDER THIS LEASE AND WAIVE ANY RIGHTS TO A JURY TRIAL IN ANY ACTION ARISING UNDER THIS LEASE.

 

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