The following Equipment Lease Terms and Conditions (the "Terms and Conditions") shall be deemed to be incorporated into any and all Vita Invoices, or Lease Agreements (individually and collectively, the "Agreement") for the lease of Equipment (defined in the Agreement) executed between Vita Inclinata Technologies, Inc. (the “Lessor”), and a party leasing Equipment from Lessor (the “Lessee”). By executing the Agreement, Lessee signifies its lease of the Equipment is to be bound by these Terms and Conditions in addition to the Agreement. In the event of any inconsistency between the provisions of these Terms and Conditions and any provision of the Agreement, the terms and provisions of the Agreement shall govern and control.
1. Operation. Lessee shall at its expense keep and maintain the Equipment in a good state of repair, normal wear and tear excepted, and shall use the Equipment only for its intended purpose and follow Lessor's instructions and manuals regarding the safe use and maintenance of the Equipment. Lessee shall use the Equipment in a careful and proper manner and shall comply with all national, state, municipal, and other laws, ordinances and regulations in anyway relating to the possession, use or maintenance of the Equipment.
2. Rent. In consideration of Lessee's right to possess and use the Equipment during the Term (as defined in Section 9), Lessee shall pay the rent at the rate specified in the Agreement ("Rent"). Unless otherwise stated in the Agreement, the Rent shall be payable in advance, and, if applicable, on the first day of each calendar month during the Term. Lessee shall pay all delivery and shipping costs to transport the Equipment to and from the Lessee’s designated delivery site. Lessee shall pay interest on all late payments at the lesser of the rate of 1.5% per month and the highest rate permissible under applicable law, calculated daily and compounded monthly. Lessee shall reimburse Lessor for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Payment of any late charge does not excuse Lessee of any default under these Terms and Conditions or the Agreement.
If by the expiration of the Term, Lessee does not return the Equipment to Lessor in the condition and on the terms and conditions of Section 5, Lessee shall continue to comply with all the terms and conditions of these Terms and Conditions and the Agreement, including the obligation to pay the prorated daily Rent for each day from the expiration of the Term until the date on which Lessee returns such Equipment to Lessor in the manner required under Section 5 ("Holdover Rent"). Lessee shall not construe anything contained in this Section, including Lessee's payment of Holdover Rent, as Lessor's (a) waiver of Lessee's failure to perform any obligation under these Terms and Conditions or the Agreement; or (b) assent to any renewal of the Agreement.
3. Limited Warranty. Lessor shall replace the Equipment with identical or similar Equipment if the Equipment fails to operate in accordance with the manufacturer's specifications and operation instructions. Such replacement shall be made as soon as practicable after Lessee returns the non-conforming Equipment. Lessee shall return all non-conforming Equipment at its expense and risk of loss to Lessor to the destination specified by Lessor. Products manufactured by a third party ("Third-Party Products") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Equipment. Third-Party Products are not covered by the above limited warranty.
The limited warranty above does not apply where the Equipment has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Lessor, or used with any Third-Party Product, hardware, software, or product that has not been previously approved in writing by Lessor.
OTHER THAN AS SET FORTH ABOVE, LESSOR MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) 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.
THE REMEDIES SET FORTH IN THIS Section 3 ARE LESSEE'S SOLE AND EXCLUSIVE REMEDIES AND LESSOR'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
4. Title and Risk of Loss. Title to the Equipment remains with Lessor throughout the Term, and Lessee shall acquire no right, title, or interest in the Equipment. Lessee shall not pledge or encumber the Equipment in any way. Lessee shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Equipment from any cause whatsoever ("Loss") until the Equipment has been returned to Lessor as specified in Section 5.1. Lessee shall notify Lessor in writing within 10 days of any such Loss. If Lessor determines in its sole discretion that a Loss has materially impaired the Equipment or its use, Lessee shall pay, upon Lessor's demand, the full value of the Equipment as determined by Lessor in its sole discretion.
5. Return of Equipment.
5.1 Obligation to Return Equipment. Lessee shall, at its risk and expense, no later than the expiration of the Term (a) deinstall, inspect, and properly pack the Equipment; and (b) return the Equipment, freight prepaid, to Lessor's designated facility by delivering the Equipment on board such carrier as Lessor may specify.
5.2 Condition of Equipment Upon Return. Lessee shall cause the Equipment returned for any reason under these Terms and Conditions or the Agreement to (a) be free and clear of all liens (other than liens of Lessor) and rights of third parties; (b) be in the same condition as when delivered to Lessee, including damage due to neglect, ordinary wear and tear excepted; (c) have all Lessee'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 applicable law.
6. Compliance with Law. Lessee shall (a) comply with all applicable laws, regulations, and ordinances and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms and Conditions and the Agreement.
7. Indemnification. Lessee shall indemnify, defend, and hold harmless Lessor and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the Agreement, and the cost of pursuing any insurance providers, relating to any claim of a third party arising out of or occurring in connection with the Equipment or Lessee's negligence, willful misconduct, or breach of these Terms and Conditions or the Agreement. Lessee shall not enter into any settlement without Lessor's prior written consent.
8. Insurance. During the Term, Lessee shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability insurance in a sum no less than $10,000,000.00 with financially sound and reputable insurers. Upon Lessor's request, Lessee shall provide Lessor with a certificate of insurance from Lessee's insurer evidencing the insurance coverage specified in these Terms and Conditions and the Agreement. Lessee shall provide Lessor with 14 days' advance written notice in the event of a cancellation or material change in Lessee's insurance policy. Except where prohibited by law, Lessee shall require its insurer to waive all rights of subrogation against Lessor's insurers and Lessor.
9. Term and Termination. The term of the Agreement commences on the date the Lessee receives delivery of the Equipment, and continues for the period specified in the Agreement, unless and until earlier terminated as provided under these Terms and Conditions (the "Term"). In addition to any remedies that may be provided in these Terms and Conditions and the Agreement, either Party may terminate the Agreement with immediate effect upon notice to the other Party, if the other Party: (i) fails to pay any amount when due under the Agreement and such failure continues for 30 days after the other Party's receipt of notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of these Terms and Conditions or the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If Lessee is in default of any of the terms and conditions of these Terms and Conditions or the Agreement, Lessor, and its agents, at Lessee's risk, cost, and expense may during normal business hours enter Lessee's premises where the Equipment is stored or used and recover the Equipment.
10. Confidential Information. All non-public, confidential, or proprietary information of Lessor, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Lessor to Lessee, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with these Terms and Conditions or the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized by Lessor in writing. Upon Lessor's request, Lessee shall promptly return all documents and other materials received from Lessor. Lessor shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Lessee at the time of disclosure; or (c) rightfully obtained by Lessee on a non-confidential basis from a third party.
11. Entire Agreement. These Terms and Conditions and the Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
12. Survival. Subject to the limitations and other provisions of these Terms and Conditions and the Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of the Agreement; and (b) any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the Agreement.
13. Notices. All notices given under these Terms and Conditions or the Agreement must be made in writing and sent either electronically or addressed to the relevant Party at the designated address of the relevant Party or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 13. A notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section 13.
14. Severability. If any term or provision of these Terms and Conditions or the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15. Amendments. No amendment to or modification of these Terms and Conditions or the Agreement is effective unless it is in writing, identified as an amendment to these Terms and Conditions and the Agreement and signed by an authorized representative of each Party.
16. Waiver. No waiver by any party of any of the provisions of these Terms and Conditions or the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms and Conditions and the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms and Conditions or the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Cumulative Remedies. All rights and remedies provided in these Terms and Conditions and the Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Lessee's rights under Section 3 are Lessee's exclusive remedies for the events specified therein.
18. Assignment; Successors and Assigns. Lessee shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms and Conditions or the Agreement without the prior written consent of Lessor. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Lessee of any of its obligations hereunder. Lessor may at any time assign, transfer, or subcontract any or all of its rights or obligations under these Terms and Conditions and the Agreement to any affiliate or to any person acquiring all or substantially all of Lessor's assets without Lessee's prior written consent. These Terms and Conditions and the Agreement are binding on and inures to the benefit of the Parties to these Terms and Conditions and the Agreement and their respective permitted successors and permitted assigns.
19. No Third-Party Beneficiaries. These Terms and Conditions and the Agreement benefits solely the Parties to these Terms and Conditions and the Agreement and their respective permitted successors and assigns and nothing in these Terms and Conditions and the 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 these Terms and Conditions and the Agreement.
20. Choice of Law and Choice of Forum. These Terms and Conditions and the Agreement and all matters arising out of or relating to these Terms and Conditions and the Agreement are governed by, and construed in accordance with, the laws of the State of Colorado, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to these Terms and Conditions and the Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Colorado, in each case located in the City and County of Denver, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
21. Limitation of Liability. LESSOR SHALL NOT BE LIABLE OR RESPONSIBLE TO LESSEE FOR ANY CLAIM, LOSS, DAMAGE, LIABILITY OR EXPENSE OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, CAUSED BY, ARISING OUT OF OR RELATING TO (1) THE LESSEE’S USE OF THE EQUIPMENT, OR THE INADEQUACY THEREOF FOR ANY PURPOSE, OR ANY DEFECT OR DEFICIENCY THEREIN, OR THE USE, OPERATION OR STORAGE THEREOF, OR THE INTERRUPTION OR LOSS OF THE SERVICE OR USE THEREOF, OR ARISING FROM ANY OTHER REASON OR CAUSE WHATSOEVER RELATING TO OR CONCERNING LESSEE’S USE OF THE EQUIPMENT; AND (2) ANY BREACH OF ANY PROVISION OF THESE TERMS AND CONDITIONS OR THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT LESSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL LESSOR'S AGGREGATE LIABILITY UNDER THESE TERMS AND CONDITIONS OR THE AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO LESSOR HEREUNDER.
22. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms and Conditions or the Agreement, for any failure or delay in fulfilling or performing any term of these Terms and Conditions and the Agreement (except for any obligations of Lessee to make payments to Lessor hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (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, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms and Conditions and the Agreement; (f) national or regional emergency; and (i) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 22, the other Party may thereafter terminate these Terms and Conditions and the Agreement upon 10 days' written notice.
