The following Power-by-Hour Rental Terms and Conditions (the "Terms and Conditions") govern the short-term, hourly rental of Equipment (defined below) by Vita Inclinata Technologies, Inc. (the "Lessor") to the party identified in the Rental Confirmation (the "Lessee"). The "Rental Confirmation" means the written communication (including by email) from Lessor to Lessee that identifies any of the following: the equipment to be rented (the "Equipment"), the location at which the Equipment will be delivered and used (the "Equipment Location"), the hourly rental rate, and the payment link to Lessor's third-party payment processor, together with each invoice or receipt issued by Lessor or its payment processor for the rental. These Terms and Conditions and the Rental Confirmation are, individually and collectively, the "Agreement." Lessee accepts, and agrees to be bound by, these Terms and Conditions by doing any of the following, whichever occurs first: (a) submitting payment card information through the payment link in the Rental Confirmation; (b) making any payment under the Agreement; or (c) accepting delivery of, or using, the Equipment. In the event of any inconsistency between the provisions of these Terms and Conditions and any provision of the Rental Confirmation, the Rental Confirmation 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. Lessee shall keep the Equipment at the Equipment Location at all times and shall not move the Equipment from the Equipment Location without Lessor's prior written consent. Lessee shall permit only its own employees who have completed any training required by Lessor under the Training Section to operate the Equipment, and shall not permit any other person to operate the Equipment.
2. Training. Lessor may require, in its sole discretion, that Lessee's personnel complete training provided by Lessor before operating the Equipment, and may condition delivery of the Equipment on completion of that training. Rent shall accrue at the Hourly Rate for all Billable Hours during training in the same manner as for any other use of the Equipment.
3. Hourly Rent. In consideration of Lessee's right to possess and use the Equipment during the Term (as defined in Section 12), Lessee shall pay rent at the hourly rate stated in the Rental Confirmation (the "Hourly Rate") for each Billable Hour ("Rent"). Rent accrues for each Billable Hour as provided in this Section and is charged daily as provided in the Payment Card and Daily Charges Section. Rent does not include sales, use, excise, or similar taxes, all of which Lessee shall pay. 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.
"Billable Hour" means each hour, or any portion of an hour, of Powered-On Time accrued during a Billing Day. "Powered-On Time" means all time during which the Equipment is powered on for any reason other than solely to charge its batteries, as recorded by the Equipment's onboard monitoring systems, regardless of whether the Equipment is being operated, is idle, or was left powered on inadvertently. Powered-On Time is measured by the actual accumulated time the Equipment is powered on during a Billing Day, and the total Powered-On Time for each Billing Day shall be rounded up to the next whole hour to determine the Billable Hours for that Billing Day. There is no minimum number of Billable Hours per Billing Day.
"Billing Day" means each period beginning at 4:01 p.m. and ending at 4:00 p.m. on the following day, Mountain Time.
Lessee acknowledges that the Equipment contains systems that record and transmit to Lessor the Equipment's power status, Powered-On Time, location, and operating data, and Lessee consents to Lessor's remote monitoring of the Equipment at all times during the Term. Lessor's records from those systems are the conclusive record of Billable Hours and Rent due, absent manifest error. Lessee must notify Lessor in writing of any dispute regarding a charge within two (2) business days after the charge is made; any charge not disputed within that period is final and accepted by Lessee.
If the Equipment is unable to transmit usage data to Lessor for any period, whether because of a loss of network connectivity or otherwise, the Equipment will continue to record Powered-On Time locally, and Lessor may charge Lessee, at the time the Equipment next transmits usage data to Lessor, for all Billable Hours accrued since the last Billing Day for which Lessor was able to charge Lessee.
Rent continues to accrue for all Billable Hours until Lessor has retaken physical possession of the Equipment, including after any notice of termination. If Lessee fails to make the Equipment available for retrieval when required under the Return and Retrieval of Equipment Section, or otherwise prevents or delays Lessor's retrieval of the Equipment, Lessee shall, in addition to Rent for all Billable Hours, reimburse Lessor for all costs Lessor incurs in locating and retrieving the Equipment. Lessee shall not construe anything contained in this Section, including Lessor's acceptance of any payment, as Lessor's (a) waiver of Lessee's failure to perform any obligation under the Agreement; or (b) assent to any extension of the Term.
4. Payment Card and Daily Charges. Before Lessor delivers the Equipment, Lessee shall provide a valid credit or debit card (the "Card") to Lessor's third-party payment processor through the payment link in the Rental Confirmation, and shall keep a valid Card on file with the payment processor throughout the Term. Lessee represents that it is authorized to use the Card for all charges under the Agreement. Lessee authorizes Lessor, directly or through its payment processor, to charge the Card, without further authorization or notice: (a) upon Lessee's submission of the Card, an amount equal to one (1) hour of Rent at the Hourly Rate, which is non-refundable and will be credited against the first Billable Hour; (b) following each Billing Day, all Rent accrued during that Billing Day; (c) any amounts billed under the Hourly Rent Section for periods in which the Equipment was unable to transmit usage data; and (d) any other amount due from Lessee under the Agreement, including amounts due under the Title and Risk of Loss Section and the Return and Retrieval of Equipment Section. Lessor does not itself receive or store Card numbers; Card information is held by the payment processor under its own terms. Lessee shall not initiate a chargeback or payment reversal of any charge that is valid under the Agreement, and shall reimburse Lessor for all costs, fees, and charges arising from any such chargeback or reversal.
If any charge to the Card is declined, reversed, or otherwise fails, Lessee shall, within twenty-four (24) hours after Lessor's notice of the failed charge (which Lessor may give by email or text message), pay the amount due or provide a replacement Card to the payment processor. If Lessee does not do so, Lessor may, without further notice, terminate the Agreement and retrieve the Equipment as provided in the Term and Termination Section, and Lessee remains liable for all amounts due under the Agreement.
5. 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. Lessee shall promptly notify Lessor of any such failure and shall make the Equipment available to Lessor at the Equipment Location for inspection and replacement. Such replacement shall be made as soon as practicable after Lessor verifies the failure. Lessor will credit Rent charged for Powered-On Time that Lessor determines was attributable solely to a verified failure of the Equipment. 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 5 ARE LESSEE'S SOLE AND EXCLUSIVE REMEDIES AND LESSOR'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
6. 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 8.1. Lessee bears that risk at all times from delivery of the Equipment until Lessor retakes physical possession of it, whether or not the Equipment is in use, whether the Loss occurs at the Equipment Location or elsewhere, and regardless of whether the Loss is caused by Lessee, its personnel, a third party, weather, or any other cause. Lessee shall notify Lessor in writing within twenty-four (24) hours of any Loss. If the Equipment is lost, stolen, destroyed, or damaged beyond economical repair, as determined by Lessor, Lessee shall pay Lessor, upon demand, an amount equal to Lessor's then-current published list price for new Equipment of the same model and configuration as of the date of the Loss (or, if Lessor no longer publishes a list price for that model, Lessor's then-current published list price for the most comparable model). For any other Loss, Lessee shall pay Lessor, upon demand, the cost of repair at Lessor's then-current rates for parts and labor. Lessee's obligations under this Section apply whether or not Lessee was using the Equipment when the Loss occurred.
7. Monitoring and Data. Lessor owns all data collected or generated by the Equipment during the Term, including usage, location, performance, and operating data, and may use that data for billing, for improving its products and services, and for any other lawful purpose. Lessee shall not disable, bypass, tamper with, or interfere with the Equipment's monitoring, power-detection, or communication systems, and any attempt to do so is a material breach of the Agreement.
8. Return and Retrieval of Equipment.
8.1 Retrieval by Lessor. Lessor will retrieve the Equipment from the Equipment Location upon expiration or termination of the Term. Lessee shall make the Equipment available to Lessor for retrieval at the Equipment Location, powered off and in the condition required by this Section, and shall give Lessor and its agents access to the Equipment Location for that purpose. Lessee grants Lessor and its agents the right to enter the Equipment Location, at any time and without prior notice, to inspect, service, or retrieve the Equipment, and Lessee shall obtain any consent of the owner or occupant of the Equipment Location needed for that access. Without limiting the foregoing, if the Equipment has not been powered on (other than solely to charge its batteries) for forty-eight (48) consecutive hours, Lessor may retrieve the Equipment at any time without notice, and the Term ends upon that retrieval. Lessee remains responsible for the Equipment, and for all Rent and other amounts due, until Lessor has retaken physical possession of the Equipment.
8.2 Condition of Equipment Upon Retrieval. Lessee shall cause the Equipment retrieved by Lessor 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.
9. 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.
10. 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.
11. 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, and property insurance covering the Equipment against all risks of loss or damage for not less than $200,000.00, in each case 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 7 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.
12. Term and Termination. The term of the Agreement commences when Lessor delivers the Equipment to the Equipment Location and Lessee takes possession of it, and continues, with no minimum or maximum duration, until Lessor retakes physical possession of the Equipment following expiration or termination as provided under these Terms and Conditions (the "Term"). Either Party may end the Term at any time, for any reason, by notice to the other Party (which may be given by email or text message), in which case Lessor will retrieve the Equipment as provided in the Return and Retrieval of Equipment Section. 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) in the case of Lessee, fails to pay any amount when due under the Agreement, including any failed charge to the Card that is not cured within twenty-four (24) hours as provided in the Payment Card and Daily Charges Section; (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 at any time, without further notice and without court process, enter the Equipment Location or any other premises where the Equipment is stored or used and recover the Equipment.
13. 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.
14. 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.
15. 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.
16. Notices. All notices given under these Terms and Conditions or the Agreement must be made in writing and sent either electronically (including by email or text message to the contact information provided by the relevant Party in connection with the Rental Confirmation) 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 16. 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 16.
17. 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.
18. 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; provided, however, that Lessor may revise these Terms and Conditions from time to time by posting a revised version, and the revised version will apply to any rental for which a Rental Confirmation is issued after the posting.
19. 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.
20. 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 5 are Lessee's exclusive remedies for the events specified therein.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 25, the other Party may thereafter terminate these Terms and Conditions and the Agreement upon 10 days' written notice.
