License Payment Terms:
Rentee/Licensee agrees that the following License Payment Terms shall apply:
1.) Fees and Payment. Except as otherwise specified herein,
(a) all fees are based on the Agreement and not actual usage by the Client,
(b) quantities purchased cannot be decreased during the relevant term,
(c) any paid fees are non-refundable, and
(d) termination or cancellation of the License does not relieve Client of any payment obligations. Client agrees to pay the fees described in the quotation.
This Equipment Rental Agreement (this "Agreement"), is entered into between myComply US Inc., a Delaware Company ("Rentor") and the signatory Renteedesignated on the final page of this Agreement ("Rentee"), as of the Execution Date.
Preliminary Statement
Rentor is in the business of leasing the equipment as described in the quotation. Rentee desires to rent from Rentor, and Rentor desires to rent to Rentee, the equipment described in the quotation. Rentor and Rentee intend for the transactions under this Agreement to constitute a true rental under the UCC. Therefore, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement agree as follows:
ARTICLE I - RENTAL OF EQUIPMENT
Section 1.01 Rental. Rentor agrees to rent to Rentee, and Renteeagrees to rent from Rentor, the Equipment described in the quotation. The rental of any Item of Equipment is governed by the terms and conditions of this Agreement and any Amendments executed thereafter. If there is a conflict or inconsistency between the provisions of this Agreement and any Amendment, the terms of the Amendment govern.
Section 1.02 Website Access. In connection with the rent of Equipment contemplated hereby, Renteewill have access to a website myComply.net administered by Rentor. The use of the website shall be subject to the terms and conditions as stated on the website.
ARTICLE II - UCC TRUE RENT
Section 2.01 UCC True Rent. The parties intend that this Agreement constitutes a true rent under the UCC and not a Disguised Security Interest. Rentor has title to the Equipment at all times. Rentee acquires no ownership, title, property, right, equity, or interest in the Equipment other than its rent hold interest solely as Rentee subject to all the terms and conditions of this Agreement.
Section 2.02 Precautionary UCC-1 Financing Statement. Rentee authorizes Rentor to file precautionary UCC financing statements and other similar filings and recordings with respect thereto. Rentee agrees not to file any corrective or termination statements or partial releases with respect to any UCCs or other similar filings or recordings filed by Rentor in connection with any Item of Equipment except (i) if Rentor fails to file a corrective or termination statement or release on request from Rentee after the expiration or earlier termination of, or release from, any quotation of such Item or Items of Equipment pursuant to any applicable provision of the Agreement or (ii) if not permitted by clause (i), with Rentor's consent.
ARTICLE III - TERM OF AGREEMENT
Section 3.01 Term. The Term of this Agreement consists of the Initial Term and the Renewal Term, if any. A Renewal Term begins either if Rentee duly exercises its option to renew this Agreement or Rentee does not notify the Rentor of Rental completion under Section 17.01.
Section 3.02 Initial Term. The Initial Term is as set forth in the quotation, which may only be changed upon the written consent of both parties.
Section 3.03 Renewal Term. If Rentee duly exercises its option to renew this Agreement or the Rentor has not been notified of Rental completion under Section 17.01, the Renewal Term for all Equipment & Licensing commences on the day after the end of the Initial Term, and ends on the date agreed to by the parties. Renewals created through end-of-term invoicing will be invoiced at an amount equal to 3 months of the total Rental period.
ARTICLE IV - SECURITY DEPOSIT
No later than the Execution Date, Rentee shall deposit with Rentor the amount listed in quotation as security for payment of all rents and compliance with other obligations and covenants herein. Upon the termination of this Agreement, the amount not charged to Rentee from violations of this Agreement shall be returned to Rentee, along with a complete accounting of any reductions claimed by Rentor.
ARTICLE V - RENT
Section 5.01 Basic Rent. In consideration of Rentee's right to possess and use the Equipment during the Initial Term, Rentee shall pay Rent in accordance with the rent schedule listed in the attached quotation.
Section 5.02 Renewal Rent. If Rentee duly exercises its option to renew this Agreement under Section 17.01, Rentee shall pay Rent plus any increases thereof in accordance with the renewal rent schedule listed in the attached quotation ("Renewal Rent").
Section 5.03 Payment Mechanics.
(a) Rentee shall pay all amounts due under this Agreement on the applicable due date in US dollars by in the manner instructed by quotation, unless otherwise instructed by Rentor no later than 15 days before the payment is due.
(b) Rentee's obligation to pay amounts due under this Agreement apply whether or not any Subrent is in effect.
(c) Notwithstanding the provisions of Section 5.03(a), if any date on which a payment under this Agreement becomes due and payable is not a Business Day, then Rentee shall make such payment on the next succeeding Business Day. Provided Rentee makes such payment on such next succeeding Business Day, no interest accrues on the amount of such payment from and after such scheduled date.
Section 5.04 Late Payments. If Rentee does not pay any amount payable to Rentor under this Agreement on the due date, Rentee shall pay to Rentor an additional $50.00 for each day payment is overdue. Payment of any late charge does not excuse Rentee of any default under this Agreement.
ARTICLE VI - EXCLUSION OF WARRANTIES
RENTOR SUPPLIES THE EQUIPMENT UNDER THIS AGREEMENT “AS IS.” RENTOR, NOT BEING THE MANUFACTURER OF THE EQUIPMENT, MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY
(a) WARRANTY OF MERCHANTABILITY;
(b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR
(c) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. RENTOR SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, OR CONSEQUENTIAL LOSSES OR DAMAGES SUFFERED BY RENTEE OR ANY OTHER PERSON, AND RENTEE EXPRESSLY WAIVES ANY RIGHT TO HOLD RENTOR LIABLE FOR ANY CLAIMS, DEMANDS, AND LIABILITIES ARISING OF, OR IN
CONNECTION WITH, THE EQUIPMENT IN ANY CAPACITY. RENTEE HAS CONDUCTED A THOROUGH REVIEW OF THE EQUIPMENT, DEEMS IT TO BE IN GOOD WORKING ORDER AND CONDITION, AND IS SATISFIED THAT IT IS SUITABLE FOR RENTEE'S INTENDED PURPOSES.
ARTICLE VII - RENTEE's REPRESENTATIONS
Rentee represents to Rentor that the statements contained in this Article VII are true and correct as of the date hereof.
Section 7.01 Organization and Qualification of Rentee. Rentee is duly organized, validly existing, and in good standing under the laws of the state of its state of organization, and has full corporate power and authority to own, operate, or rent the properties and assets now owned, operated, or rented by it and to carry on its business as currently conducted. Rentee is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the rented of the Equipment makes such licensing or qualification necessary.
Section 7.02 Authority of Rentee. Rentee has full corporate power and authority to enter into this Agreement (including any future Amendments), to carry out its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby. The execution and delivery by Rentee of this Agreement, the performance by Rentee of its obligations hereunder and thereunder, and the consummation by Rentee of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Rentee. This Agreement has been duly executed and delivered by Rentee, and this Agreement constitutes a legal, valid, and
binding obligation of Rentee enforceable against Rentee in accordance with its terms.
Section 7.03 No Conflicts. The execution, delivery, and performance by Rentee of this Agreement, and the consummation of the transactions contemplated hereby, do not and will not:
(a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws, or other organizational documents of Rentee;
(b) conflict with or result in a violation or breach of any provision of any Law;
(c) require the consent of, notice to, or other action by any Person or, conflict with, result in a violation or breach of, or constitute a Default or an Event of Default; or
(d) result in the creation or imposition of any Lien other than Permitted Liens on any Item of Equipment.
Section 7.04 Legal Proceedings. There are no Actions pending or, to Rentee's Knowledge, threatened against or by Rentee that challenge or seek to prevent, enjoin, or otherwise delay the transactions contemplated by this Agreement. No event has occurred, or circumstances exist that may give rise to, or serve as a basis for, any such Action.
Section 7.05 Permits. All Permits required for Rentee to rented and use the Equipment have been obtained by Rentee and are valid and in full force and effect. All fees and charges with respect to such Permits as of the date hereof have been paid in full. No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse, or limitation of any Permit.
Section 7.06 Mechanic’s Lien. Rentee acknowledges and agrees that Rentor is a contractor and materialman, and that it shall have all of the rights afforded to it under New York Consolidated Laws, Lien Law, Section 3.
ARTICLE VIII - RENTEE'S COVENANTS
Rentee agrees that until all amounts payable under this Agreement (including any Amendment) have been paid in full and all other obligations hereunder and thereunder have been performed in full, Rentee shall comply with the following covenants.
Section 8.01 Compliance with Laws. Rentee shall comply with all Contractual Obligations and applicable Laws except to the extent that failure to comply therewith would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 8.02 Permits. Rentee shall maintain in full force and effect all Permits required for Renteeto rent and use each Item of Equipment in the manner contemplated under this Agreement.
Section 8.03 Taxes. Rentee shall pay, and indemnify and hold Rentor harmless from, all assessments, license fees, and sales, use, property, excise, and other taxes and charges (other than federal income taxes imposed on or measured by net income (however denominated)) imposed on or with respect to
(a) the Equipment or any part thereof arising out of or in connection with the shipment, possession, ownership, use, or operation of any Item of Equipment, or
(b) this Agreement or the consummation of the transactions contemplated herein.
Section 8.04 Liens. Except for Permitted Liens, Renteeshall keep the Equipment free and clear of all Liens.
Section 8.05 Subrentals. Rentee shall not enter into any subrental of any Item of Equipment ("Subrental"), except as approved in writing by Rentor, and provided:
(a) the Subrentee must be a Rentee Affiliate;
(b) the Subrentee is engaged in a business substantially similar to the Rentee's business ("Subrentee's Business");
(c) the term of any Subrental does not extend beyond the Initial Term, or Renewal Term, if applicable;
(d) the rights of any Subrentee is expressly subject and subordinate to all the terms of this Agreement;
(e) the terms of any Subrental do not permit any Subrentee to take any action not permitted to be taken by Rentee in this Agreement;
(f) the Subrental shall not relieve Rentee of its obligations under this Agreement, and Rentee shall remain primarily liable under this Agreement for the performance of all of the terms of this Agreement to the same extent as if such Subrental had not occurred.
ARTICLE IX - RENTEE'S USE OF EQUIPMENT
Section 9.01 Preparation of Location. On or prior to the Execution Date for each Item of Equipment, Rentee shall, at its expense, designate a site at the Location for the installation of such Equipment. Rentee shall grant access to the Location to allow Rentor, the Equipment manufacturer, and/or its designated representative to install each Item of Equipment. Rentee shall bear all installation charges, including third-party installation charges, in such amounts as set forth in quotation hereto.
Section 9.02 Labels. Rentee shall not allow the name of any Person to be placed on the Equipment. However, Rentee (or any Subrentee) may, with Rentor's prior written consent, place its customary insignia on the Equipment.
Section 9.03 Rentee's Possession. Rentee may not move any Item of Equipment from its Location without Rentor's prior written consent.
Section 9.04 Personal Property. Rentee shall not affix or attach any Item of Equipment to real property or any improvements. The parties intend that each Item of Equipment remains at all times personal property and not a fixture under applicable Law, even if the Item of Equipment, or any part thereof, may be or becomes affixed or attached to real property or any improvements.
Section 9.05 Operation. Rentee shall operate each Item of Equipment or require any Subrentee to operate any Item of subrented Equipment, exclusively in connection with its business, or Subrentee's Business, as the case may be.
ARTICLE X - MAINTENANCE
Section 10.01 Maintenance in General. Rentee, at its own expense, shall (or shall cause any Subrentee to) maintain, service, repair,and keep each Item of Equipment:
(a) in the same condition as when delivered to its Location, ordinary wear and tear excepted;
(b) in compliance with the Manufacturer's maintenance requirements, if any; and
(c) in compliance with Law.
Rentor shall provide maintenance only if such defect requiring maintenance existed at the time of delivery or installation or as result of reasonable wear and tear, and not as a result of Rentee's direct or indirect conduct.
ARTICLE XI - LOSS
Section 11.01 Risk of Loss. While the Equipment is rented under this Agreement, Rentee shall bear all risk of loss, damage, destruction, theft, and condemnation to or of such Item of Equipment from any cause whatsoever ("Loss"). Rentee shall notify Rentor in writing within ten days of any such Loss.
Section 11.02 Material Impairment. If Rentordetermines in its reasonable discretion that the Loss has materially impaired the Equipment, Rentee shall pay, on Rentor's demand, all Rent and other amounts due prior to the date of the Loss with respect to such Item of Equipment (the “Loss Payment”). This amount shall be determined on a pro-rata basis, depending on the amount of Equipment rented and the agreed-upon Rent.
This Agreement terminates with respect to any materially impaired Item of Equipment on receipt by Rentor of the corresponding Loss Payment. Upon such termination, Rentee shall return such Item of Equipment according to Rentor's instructions. Rentee is subrogated to all claims of Rentor, if any, against third parties, for damage to or loss of such Item of Equipment to the extent of the amount of Loss for the Item of Equipment.
Section 11.03 Non-material Impairment. If Rentor determines in its reasonable discretion that the Loss has not materially impaired the Equipment:
(a) this Agreement continues with respect to such Item of Equipment as though no Loss had occurred; and
(b) Rentee's shall, at its risk and expense, promptly repair or cause such Item of Equipment to be repaired to a condition acceptable to Rentor.
ARTICLE XII - INSURANCE
Section 12.01 Equipment Insurance. Rentee, at its own expense, shall (or shall cause any Subrentee to) provide and maintain for each Item of Equipment insurance against loss, theft, and damage ("Equipment Insurance") in:
(a) an insured amount the full replacement value of such Item of Equipment; and
(b) a form, and with companies, approved by Rentor, including, without limitation, the insurer's agreement to give Rentor 30 days prior written notice before cancellation or material change thereof.
Rentee shall name Rentor (or shall cause Rentor to be named) as an additional insured and loss payee on the Equipment Insurance.
Section 12.02 Liability Insurance. Rentee, at its own expense, shall (or shall cause any Subltentee to) provide and maintain comprehensive general liability insurance ("Liability Insurance"). Rentee shall name Rentor as an additional insured (but without imposing on Rentor any liability to pay the premiums for such insurance).
Section 12.03 Insurance Certificates. On or before the Execution Date and at any time Rentor may reasonably request, Rentee shall provide Rentor with a certificate of insurance evidencing the maintenance of the Equipment Insurance and Liability Insurance.
ARTICLE XIII - APPLICATION OF INSURANCE PROCEEDS
Section 13.01 Amounts Received By Rentor. Notwithstanding any payments Rentor receives as loss payee of the Equipment Insurance, Rentee shall remain liable to the Rentor for the amounts set forth in Equipment Insurance.
If Rentee is in Default, Rentor may hold any such proceeds as security for the obligations of Rentee under this Agreement and apply such amounts in its discretion against Rentee's obligations under this Agreement.
Section 13.02 Amounts Received By Rentee.
(a) If Rentee receives any proceeds under the Equipment Insurance, unless received with respect to a non-material impairment, it shall promptly forward such amounts to Rentor to be applied by Rentor under Section 15.01.
(b) If Rentee is in Default, and it receives any proceeds under the Equipment Insurance (regardless of whether the Equipment is materially impaired) or Liability Insurance, it shall promptly forward such amounts to Rentor as security for the obligations of Rentee under this Agreement. Such amounts shall be applied by Rentor against Rentee's obligations.
ARTICLE XIV - DEFAULT
Section 14.01 Events of Default. Each of the following events is an "Event of Default" under this Agreement, including all Amendments:
(a) if Rentee fails to pay when due any installment of Rent or any other amount under this Agreement;
(b) if Rentee defaults in the observance or performance of any other term, covenant, or condition of this Agreement, including any Amendment, on Rentee'spart to be observed or performed and Rentee fails to remedy such default within 30 days after notice by Rentor to Rentee of such default;
(c) if Rentee'sinterest or any portion thereof in this Agreement devolve on or pass to any person, whether by operation of law or otherwise;
(d) if Rentee:
(i) does not, or is unable to, or admits in writing its inability to, pay its debts as they become due;
(ii) commences or institutes any case, proceeding, or other action seeking relief on its behalf as debtor, or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to it or its debts under any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, or relief of debtors;
(iii) commences or institutes any case, proceeding, or other action seeking appointment of a receiver, trustee, custodian, or other similar official for it or for all or any substantial part of its property; or
(iv) makes a general assignment for the benefit of creditors;
(e) if a receiver, trustee, custodian, or other similar official is appointed for any substantial part of the assets of Rentee which appointment is not vacated or stayed within ninety (90) Business Days;
(f) if any case, proceeding, or other action is commenced or instituted against Rentee seeking to have an order for relief entered against it as debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to it or its debts under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, or relief of debtors;
(g) if any case, proceeding, or other action is commenced or instituted against Rentee seeking issuance of a warrant of attachment, execution, distraint, or similar process against it or all or any substantial part of its property which results in the entry of an order for any such relief which is not vacated, discharged, or stayed or bonded pending appeal within ninety (90) days from the
entry thereof;
(h) if Rentee sells, transfers, or disposes of all or substantially all of its assets or property of the business, or merges or consolidates with any other entity; or
(i) if any representation contained in ARTICLE VII is untrue as and when made.
Section 14.02 Remedies. If an Event of Default occurs, Rentor may, in its sole discretion, exercise one or more of the following remedies:
(a) declare this Agreement (including all, and not less than all, Amendments) in default;
(b) terminate in whole or in part this Agreement, including all Amendments;
(c) take possession of, or render unusable, any Item of Equipment wherever it may be located, without demand or notice, without any court order or other process of law, and without liability to Rentee for any damages occasioned by such action, and no such action shall constitute a termination of any Amendment;
(d) require Rentee to deliver any Item of Equipment at a location designated by Rentor; for each day that Rentee fails to return any Item, Rentor may demand an amount equal to the Rent, prorated on the basis of a thirty-day month, in effect immediately prior to such Default;
(e) proceed by court action to enforce performance by Rentee of this Agreement or any or all Amendments and/or to recover all damages and expenses incurred by Rentorby reason of any Event of Default; or
(f) exercise any other right or remedy available to Rentorat law or in equity
ARTICLE XV - INDEMNITY
(a) Indemnity. Rentee shall indemnify, defend, and hold harmless Rentorand its Affiliates and their respective Representatives (collectively, "Indemnitees") against any and all Damages incurred by Indemnitees, relating to any claim of a third party arising out of or relating to:
(b) Rentee's negligence, willful misconduct, or breach of this Agreement, whether intentional or unintentional;
(c) Rentee's failure to obey Manufacturer’s specifications for operation of the Equipment during the Term;
(d) any inaccuracy in or breach of any of the representations of Rentee contained in this Agreement; or
(e) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Rentee pursuant to this Agreement.
ARTICLE XVI - RENTOR'S PERFORMANCE OF RENTEE'S OBLIGATIONS
If an Event of Default has occurred and is continuing, Rentormay, in its sole discretion, make any payment or perform any obligation on behalf of Rentee or take any action that Rentor's deems reasonably necessary to maintain and preserve any or all Items of Equipment and Rentor's interests therein. Rentee shall not deem Rentor's action to be Rentor's waiver of any Default or Event of Default or release of Rentee. Rentee shall pay immediately on demand all sums so paid by Rentor , together with expenses (including legal fees and costs) incurred by Rentor in connection therewith.
ARTICLE XVII - END OF RENT OPTIONS
Section 17.01 Renewal. Rentee has the option to extend the Rental, Rentee shall, at the expiration of the Initial Term, renew this Agreement for the Renewal Term, as to all, and not less than all, of the Equipment. Rentee's intent to renew this Agreement must be received by Rentor, in writing, no later than ninety (90) days before the expiration of this Agreement. If no renewal intent is received, Rentor shall renew automatically at 3 months until completion notification is received.
Section 17.02 Renewal Rent. Rentee shall pay Rent during the Renewal Term as provided in Section 5.02. Rentee agrees that Rentormay revise the loss value of the Equipment to reflect the Fair Market Value of the Equipment as of the commencement of such Renewal Term. Except as set forth in this section, Rentee shall, during the Renewal Term, comply with all the terms and conditions of this Agreement.
(a) If Rentee elects to renew this Agreement under Section 17.01, Rentor shall cause, at Rentee's expense, an independent appraiser selected by Rentor to determine the Fair Market Value or the Fair Market Rent, whichever is applicable, of each Item of Equipment.
ARTICLE XVIII - RETURN OF EQUIPMENT
Section 18.01 Obligation to Return Equipment. Unless an equipment pickup is included in the rent charges or Rentee elects to renew this Agreement under Section 17.01, by providing notice of its election under XIX, Rentee shall return each Item of Equipment, freight prepaid, to such destination designated by Rentor, by delivering the Equipment on board such common carrier as Rentormay specify.
Section 18.02 Condition of Equipment upon Return. Rentee shall cause any Item of Equipment returned under this Agreement to:
(a) be free and clear of all Liens (other than RentorLiens) and rights of third parties, including Sublrentees;
(b) be in the same condition as when delivered to Rentee , ordinary wear and tear excepted;
(c) have all Rentee's and any SubRentee's insignia or markings removed or painted over and the areas where such markings were removed or painted over refurbished as necessary to blend with adjacent areas; and
(d) be in compliance with Law.
Section 18.03 Holdover. If by the expiration of the Term, Rentee does not return any Item of Equipment to Rentorin the condition and on the terms and conditions of this Article, Rentee shall continue to comply with all the terms and conditions of this Agreement and the applicable Amendment with respect to such Item of Equipment, including the obligation to pay 120% of the prorated daily Rent for each day from the expiration of the Term until the date on which Renteereturns such Item of Equipment to Rentorin the manner required under this Agreement ("Holdover Rent"). Rentee shall not construe anything contained in this Section, including Renteepayment of Holdover Rent, as Rentor's
(a) waiver of Rentee's failure to perform any obligation under this Agreement; or
(b) assentto the commencement of a Renewal Term (other than by Rentee's exercise of its Renewal Option under Section 17.01 at the end of the Initial Term).
ARTICLE XIX - MISCELLANEOUS
Section 19.01 Survival. Subject to the limitations and other provisions of this Agreement, the representations of Rentee contained in ARTICLE VIII survive indefinitely. All covenants and agreements of Rentee's contained herein survive after the Execution Date Indefinitely. Notwithstanding the foregoing, any claim by Rentor asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice prior to the expiration date of the applicable survival period (if any) is not thereafter barred by the expiration of the relevant representation and such claims survive until finally resolved.
Section 19.02 Notices. Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") in writing and addressed to the other party at its address set forth on this signature page of this Agreement (or to such other address that the receiving party may designate from time to time in accordance with this section). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only
(a) on receipt by the receiving party, and
(b) if the party giving the Notice has complied with the requirements of this Section.
Section 19.03 Interpretation. For purposes of this Agreement,
(a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation;"
(b) the word "or" is not exclusive; and
(c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. The quotation referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
Section 19.04 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Section 19.05 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Section 19.06 Entire Agreement. This Agreement, including and together with the Amendments and all related quotation, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Section 19.07 Amendment and Modification. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party to this Agreement.
Section 19.08 Waiver.
(a) No waiver under this Agreement is effective unless it is in writing, clearly identified as a waiver, and signed by an authorized representative of the party waiving its right.
(b) Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.
(c) None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:
(i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or
(ii) any act, omission, or course of dealing between the parties.
Section 19.09 Equitable Remedies. Each party to this Agreement hereby agrees that in the event of a breach or a threatened breach by such party of any such obligations, the other party to this Agreement will, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
Section 19.10 Assignment and Delegation. Rentee may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Rentor. No assignment or delegation relieves the assigning or delegating party of any of its obligations under this Agreement.
Section 19.11 Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective successors and assigns.
Section 19.12 No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. Section 19.13 Choice of Law. This Agreement, including all Amendments and exhibits attached hereto and thereto shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof.
Section 19.14 Arbitration. Each party irrevocably and unconditionally agrees that any dispute or controversy arising under the terms of this Agreement shall be settled exclusively by binding arbitration, as an alternative to civil litigation, conducted by a single arbitrator mutually acceptable to both parties. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
Section 19.15 Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under this Agreement, including any Amendments or exhibits attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any Amendments or exhibits attached to this Agreement, or the transactions contemplated hereby.
Section 19.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile or email is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Section 19.17 Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation:
(a) acts of God;
(b)flood, fire, earthquake, pandemic or explosion;
(c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest;
(d) government order or law;
(e) actions, embargoes, or blockades in effect on or after the date of this Agreement;
(f) action by any Governmental Authority; and
(g) national or regional emergency (each a "Force Majeure Event").
Section 19.18 Relationship of Parties. Nothing herein creates a joint venture or partnership between the parties to this Agreement or an employee/employer relationship. Neither party to this Agreement has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
ARTICLE XX - DEFINITIONS
Capitalized terms used in this Agreement have the meanings set forth in this Article XX.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any
nature, civil, criminal, administrative, regulatory, or otherwise, whether at law or in equity.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
"Agreement" means this Agreement, each Amendment, and all other agreements, documents, certificates, authorizations, and instruments executed in connection with the Agreement and
Amendments. “Amendment” means any subsequent additions to this Agreement.
"Basic Rent" means the rent to be paid by Rentee for any Item of Equipment in the amount specified in the corresponding quotation.
"Business Day" means any day except Saturday, Sunday or Statutory Holidays.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contractual Obligation" as to any Person, means any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound other than the obligations under this Agreement.
"Damages" mean losses, injury, death, damages, liabilities, claims, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including
reasonable attorneys' fees and the cost of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers.
"Default" means any of the events specified in Section 14.01, which constitutes an Event of Default or which, on the giving of notice, the lapse of time, or both pursuant to Section 14.01
would, unless cured or waived, become an Event of Default.
"Disguised Security Interest" means a sale of the equipment subject to a security interest under Article 9 of the UCC to secure the purchase price of the equipment.
"Equipment" means:
(a) the equipment more fully described in quotation;
(b) Parts or components thereof;
(c) ancillary equipment or devices furnished under this Agreement;
(d) all manuals and records (other than Rent records) with respect to such Equipment;
(e) all alterations, additions, and attachments thereof; and
(f) all Upgrades.
Except as otherwise set forth herein, at such time as replacement equipment shall be so substituted and rented under this Agreement, such replaced item of Equipment shall cease to
be Equipment under this Agreement.
"Event of Default" has the meaning set forth in Section 14.01.
“Execution Date” means the date on the signatory page of the quotation, from which point its terms are binding and enforceable.
"Fair Market Rent" of any Item of Equipment means the rent amount of the Equipment in an arm's-length transaction between an informed and willing Rentee and an informed and willing
Rentor in a free market, determined by an independent appraiser selected by Rentor, and assuming that the Equipment is unencumbered by any rent and is in the condition required under
Article XIII.
"Fair Market Value" of any Item of Equipment means the US Dollar purchase price of such Item of Equipment in an arm'slength transaction between an informed and willing buyer and an informed and willing seller in a free market, determined by an independent appraiser selected by Rentor, and assuming that such Item of Equipment is unencumbered by any rent and is in the condition required under Article XIV.
"GAAP" means generally accepted accounting principles in the United States of America as in effect from time to time.
"Governmental Authority" means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other nongovernmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.
"Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.
"Holdover Rent" has the meaning set forth in Section 18.03.
"Indemnitees" has the meaning set forth in ARTICLE XV(a).
"Initial Term" has the meaning set forth in Section 3.02.
"Item of Equipment" means an individual item of Equipment.
"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, other requirement, or rule of law of any Governmental Authority.
"Rentee" has the meaning set forth in the preamble.
"RenteeAffiliate" means an Affiliate of Rentee.
"Rentee's Knowledge" means the actual or constructive knowledge of any director or officer of Rentee, after due inquiry.
"Rentor" has the meaning set forth in the preamble.
"RentorLien" means any Lien on any Item of Equipment arising from any:
(a) breach by Rentor of this Agreement; or
(b) Taxes imposed against Rentorthat Renteeis not required to indemnify Rentor under this Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment (as security), deposit arrangement, encumbrance, lien (statutory or other), charge, or other security interest, or any preference, priority, or other security agreement or preferential arrangement of any kind or nature whatsoever having substantially the same economic effect as any of the foregoing (including, without limitation, any conditional sale or other title retention agreement and any capital rent).
"Location" is the site in which the Equipment must remain, as described in Schedule B.
"Loss" has the meaning set forth in Section 11.01.
"Loss Payment" has the meaning set forth in Section 11.02.
"Manufacturer" means the manufacturer of the Equipment set forth in the quotation.
“Material Adverse Effect" means a material adverse effect on:
(a) the business, assets, properties, liabilities (actual or contingent), operations, or condition (financial or otherwise) of Rentee, individually, or Rentee taken as a whole;
(b) the validity or enforceability of this Agreement;
(c) the rights or remedies of Rentor under this Agreement;
(d) the ability of Rentee to perform any of its payment obligations under this Agreement; or
(e) the value, remaining useful life, or utility of any Item of Equipment rented under this Agreement.
"Notice" has the meaning set forth in Section 19.02.
“Parts” means any components, instruments, accessories, and other equipment which may now or may now or from time to time be incorporated or installed in or attached to, or were provided
by the manufacturer with, any Item of Equipment.
"Permits" means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights obtained, or required to be obtained, from Governmental
Authorities.
"Permitted Lien" means:
(a) the rights of Rentorand Rentee under this Agreement;
(b) Rentor'sLiens;
(a) Liens imposed by law for Taxes not yet due or which are being contested in good faith and by appropriate proceedings if:
(i) adequate reserves with respect thereto are maintained in accordance with GAAP on the books of, and available to, Rentee;
(ii) neither such proceedings nor such Liens involve any material danger of the sale, forfeiture, loss, or loss of use of the Equipment or any part thereof, or any interest of Rentor therein or any risk of criminal liability of Rentor; and
(iii) Rentee has given Rentor prior written notice of Rentee's intent to contest any such Taxes, and Rentee has agreed to indemnify Rentor for any and all costs and expenses (including, without limitation, reasonable attorneys' fees) that Rentor may incur as a result of such contest;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's, and other similar Liens imposed by law, arising in the ordinary course of business, and securing obligations that are not overdue by more than 30 days or that are being contested in good faith and by appropriate proceedings if:
(i) adequate reserves with respect thereto are maintained in accordance with GAAP on the books of, and available to, Rentee;
(ii) neither such proceedings nor such Liens involve any material danger of the sale, forfeiture, loss, or loss of use of the Equipment or any part thereof, or any interest of Rentor therein or any material risk of material civil liability of Rentor; and
(iii) Rentee has given Rentor prior written notice of Rentee's intent to contest any such obligations giving rise to such Liens, and Rentee has agreed to indemnify Rentor for any and all
costs and expenses (including, without limitation, reasonable attorneys' fees) that Rentor may incur as a result of such contest;
(c) the rights of others under agreements or arrangements to the extent expressly permitted under this Agreement;
(d) any Lien against which Rentee causes to be provided a bond in such amount and under such terms and conditions as are satisfactory to Rentor;
(e) pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance, and other social security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts, rentalss, statutory obligations, surety and appeal bonds, performance bonds, and other obligations of a like nature, in each case in the ordinary course of business; or
(g) easements, zoning restrictions, rights-of-way, and similar encumbrances on real property imposed by law or arising in the ordinary course of business which, in the aggregate, are not material in amount and which do not secure any monetary obligations that materially detract from the value of the affected property or interfere materially with the ordinary conduct of business of Rentee;
(h) any other lien which is approved, in writing, by Rentor.
"Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, Governmental Authority, or any other entity.
"Renewal Rent" has the meaning set forth in Section 5.02.
"Renewal Term" has the meaning set forth in Section 5.03.
"Rent" means Basic Rent, Renewal Rent, and any late payments owed under ARTICLE V.
"Representative" means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants, and other agents of such Person.
"Required Upgrade" mean any Upgrade made under Error! Reference source not found.
"Stock" means the voting stock, membership interests, or similar equity interests of any Person.
"Subrental" has the meaning set forth in Section 8.05.
"Subrentee" means any Person that subrents any Item of Equipment or part thereof under Section 8.05.
"Subrentee's Business" has the meaning set forth in Section 8.05.
"Taxes" mean any and all present or future income, stamp, or other taxes, levies, imposts, duties, deductions, charges, fees, or withholdings imposed, levied, withheld, or assessed by any Governmental Authority, together with any interest, additions to tax, or penalties imposed thereon and with respect thereto.
"Tax Owner Loss Event" means any of the following with respect to any Item of Equipment:
(a) Rentor determines that it is not entitled to claim on its Federal income tax return all or any portion of the Tax Benefits;
(b) any Tax Benefit claimed on Rentor's Federal income tax return is disallowed or adjusted by the Internal Revenue Service; or
(c) any Tax Benefit is recomputed or recaptured.
"Term" has the meaning set forth in Section 3.01.
"UCC" means the Uniform Commercial Code as in effect
in the state of New York from time to time.
"Upgrades" means a Required Upgrade
Last Updated: September 15, 2022