This Equipment Lease (Lease) is made effective the date your order is placed with EZLOGZ, Inc. (Effective Date), by and between EZLOGZ, INC, a Washington corporation (Lessor) and you (Lessee), relating to your use of the Services defined herein. Please read this Agreement carefully. Your use of the Services is expressly conditioned on your acceptance of this Agreement.
BY CLICKING THE “I AGREE” ICON BELOW, AND/OR BY USING THE DEVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LEASE AGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS LEASE AGREEMENT, DO NOT USE THE SERVICES AND EXIT IMMEDIATLEY BY CLICKING “I DO NOT AGREE” ICON BELOW.
Recital: Lessor desires to lease to Lessee and Lessee desires to lease from Lessor certain Equipment (as is defined in Section 1) on the terms and conditions set forth in this Lease and the accompany Software Subscription Agreement between the Parties.
For valid consideration received, the parties agree as follows:
Lessor shall lease to Lessee, and Lessee shall lease from Lessor, subject to the terms, covenants, and conditions of this Lease, the items of tangible personal property described as “ELD/AOBRD” Devices (Equipment). The term “Equipment” shall include all replacement parts but NO accessories, or alterations incorporated into or made to the tangible personal property. The term “Equipment” expressly does not include any necessary connection wires or other parts, however, all necessary items for connection of the Equipment are available for purchase from the Lessor at an additional cost of $34.99.
On execution the Lease shall become effective as of the Effective Date. Subject to earlier termination as provided below, this Lease shall remain in effect from month to month as long as Lessee maintains its Subscription to Lessor’s Software Service as set forth in the contemporaneously executed Software Services Agreement (for Month to Month, one Year or Two Years as chosen by Lessee). The Lease shall remain in place until Lessee provides Lessor with written notice thirty (30) days in advance of its intent to cancel the Software Subscription Agreement. Upon that cancellation the Lease will also be cancelled, and the Equipment shall be returned to Lessor within fifteen (15) days or Lessee will be charged $149.99 for the purchase of the Equipment. All returned equipment after cancellation shall be subject to a $17.99 restocking fee.
Commencing on the first day of the first month following the Effective Date and continuing each month during the term of this Lease, Lessee agrees to pay Lessor the amount due under the Software Subscription Agreement but no additional amounts will need to be paid pursuant to this Lease. The sums payable under this Lease shall not entitle Lessee to any equity interest in the Equipment.
Upon execution of the Lease, Lessee agrees to provide Lessor with a security deposit in the amount of $49.99 (the “Security Deposit”). Provided Lessee completes the Lease with no default and has made all payments owed, Lessor will return the Security Deposit to Lessee at the completion of the Lease. However, should Lessee default under the Lease or Subscription Service Agreement, or should Lessee owe any money to Lessor at the completion of the Lease for any reason, whatsoever, Lessee shall forfeit the Security Deposit and be charged the $149.99 fee for the purchase of the Equipment as set forth in Section 2 above.
Lessee’s obligation to pay all rent and other sums under this Lease and accompanying Software Subscription Agreement shall be absolute and unconditional and shall not be subject to abatement, reduction, setoff, defense, counterclaims, interruption, deferment, or recoupment for any reason whatsoever.
The Equipment shall be the exclusive property of Lessor, except for Lessee’s rights to use the Equipment in its normal business operations under this Lease. The Equipment is and shall remain personal property even if installed in or attached to real property. Lessee shall keep the Equipment at all times free and clear from all liens and encumbrances. Lessee shall give Lessor immediate notice of any attachment or other judicial process affecting any article of the Equipment. If requested by Lessor, Lessee will affix plates or markings on the Equipment and on any operating manuals and manufacturer’s instruction indicating the interests of Lessor and its assigns in them, and Lessee will not allow any other indicia of ownership or other interest in the Equipment to be placed on the Equipment. Lessee shall use the Equipment in a careful and proper manner and shall comply with all federal, state, and local laws. Aside from software alterations, additions, and improvements, Lessee shall not make any physical alterations or improvements to the Equipment.
Lessee shall keep the Equipment in good condition and, at its own cost and expense, make all repairs and replacements necessary for damage outside the scope of reasonable/foreseeable wear and tear. Such damage includes but is not limited to damage caused as a result of flooding, excessive dust or corrosion, clear/obvious mishandling of the Equipment. Lessor shall be responsible for repairs associated with reasonable/foreseeable wear and tear damage. Lessee shall be responsible for all shipping costs associated with repairs and replacements. All replacements shall immediately become the property of Lessor. USE OF ANY CONNECTIONS NOT PURCHASED FROM LESSOR AS SET FORTH IN SECTION 1 ABOVE WILL VOID ANY AND ALL WARRANTIES EXPRESS OR IMPLIED AND AS SUCH LESSOR WILL PROVIDE NO REPLACEMENTS IN THE EVENT OF DAMAGE OR MALFUNCTION AFTER THE USE OF NON-LESSOR PROVIDED CONNECTION WIRES.
Lessee, at its own cost and expense, shall insure the Equipment against burglary, theft, fire, vandalism, and every cause whatsoever for not less than the replacement cost of the Equipment, by an insurance carrier(s) acceptable to Lessor. At its expense Lessee shall further provide and maintain comprehensive public liability insurance against claims for bodily injury, death, and/or property damage arising out of the use, ownership, possession, or operation of the Equipment and obtain public liability insurance with minimum limits, in the form and with the insurance companies that shall be satisfactory to Lessor. All insurance policies shall name both Lessee and Lessor as insured, and copies of the policies and the receipts for the payment of premiums shall be furnished to Lessor. Each damage policy shall provide for the payment of all losses directly to Lessor. Each liability policy shall provide that all losses be paid on behalf of Lessee and Lessor as their respective interests appear. Each insurance company shall agree that it will give Lessor 30 days’ prior written notice of any alteration or cancellation of any policy.
Lessee shall at all times bear the entire risk of loss, theft, destruction, or damage, whether partial or complete and whether or not insured, of each article of the Equipment, and of any condemnation, confiscation, requisition, seizure, forfeiture, or other taking of title to or use of each article of Equipment, whether partial or complete, from any cause whatsoever (Loss or Damage). Lessee shall indemnify and defend Lessor and hold Lessor harmless from and against any and all Loss or Damage, until the article of Equipment shall have been returned to Lessor And received by Lessor in accordance with all terms and conditions of this Lease. No Loss or Damage shall release, impair, or otherwise affect Lessee’s obligation to pay rent or any other obligation of Lessee under this Lease. In the event of any Loss or Damage to any article of Equipment, Lessee shall notify Lessor in writing within five days after the occurrence of Loss or Damage, and SUBJECT TO THE LIMITATIONS IN SECTION 7 ABOVE, Lessee shall immediately, at Lessor’s option and at Lessee’s sole expense, (a) place the article of Equipment in good working order, condition, and repair, (b) replace the article of Equipment with like equipment in good working order, condition, and repair, having equivalent value and utility and with clear title in Lessor (which shall then be deemed substituted for the Article of Equipment for all purposes), or (c) pay to Lessor an amount equal to the replacement cost of the article of Equipment.
Lessee agrees that during the term, in addition to the rental payments and all other amounts provided to be paid, it will promptly pay all taxes, assessments, and other governmental charges (including penalties and interest) levied or assessed (a) on the interest of Lessee in the Equipment or on the use or operation of the Equipment or on the earnings of Lessee arising from the Equipment and (b) against Lessor on account of its acquisition or ownership of the Equipment, or the use or operation of the Equipment or the leasing to Lessee of the Equipment, or the monthly rent provided for, or the earnings of Lessor arising from the monthly rent; provided, however, that Lessee will not be responsible for any taxes based on the net income of Lessor or for any taxes based on gross income of Lessor. Lessee agrees to file, on behalf of Lessor and if permitted by the taxing authorities, all required personal property tax returns and reports concerning the Equipment with all appropriate governmental agencies.
Lessee shall indemnify and defend Lessor and its agents, employees, officers, and directors and hold them harmless from and against any and all claims, liabilities, losses, damages, and expenses, including, without limitation, all court costs and attorney and expert witness fees and costs, arising from or in connection with or based on (a) the possession, inspection, condition, operation, or use (by whomever operated or used) of any of the Equipment or (b) the performance or enforcement of any of the terms, or any noncompliance or nonperformance of any condition, of this Lease. Lessee shall satisfy, pay, and discharge any and all settlements, judgments, and fines that may be recovered against Lessor. Lessor shall give Lessee prompt written notice of any claim. The indemnities contained in this section shall survive the termination of this Lease.
As Lessee shall be responsible for all costs associated with shipping the Equipment, Lessor shall ship the Equipment to Lessee based on Lessee’s requests/instructions and at Lessee’s risk. Lessee will have seven (7) days from the date of delivery to inspect the Equipment for defects and nonconformance and to notify Lessor, in writing, of any defects, nonconformance, or rejection of the Equipment (other than defects or nonconformities due to damage, shortage, or errors in shipping that will be reported as set forth below). Claims for shipping damage, errors, or shortages must be made in writing to Lessor no more than ten (10) days after receipt of shipment. After this period, Lessee will be deemed to have irrevocably accepted the Equipment to be in good working condition and rejection of said period shall be deemed a breach of this Lease and may be construed as early termination of the Lease.
LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN OR CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, OR ITS FITNESS OR CAPACITY OR DURABILITY FOR ANY PARTICULAR PURPOSE, OR THE QUALITY OF THE MATERIALOR WORKMANSHIP OF THE EQUIPMENT, AND, AS TO LESSOR, LESSEE LEASES THE EQUIPMENT “AS IS.” Lessor shall have no liability for any damages, whether direct, indirect, general, special, incidental, exemplary, or consequential, incurred by Lessee as a result of any defect or malfunction of the Equipment.
At the end of the term of this Lease, Lessee shall at its own expense return the Equipment to Lessor at the location specified by Lessor, in as good condition as when received, except for reasonable wear and tear. Said return of the Equipment shall be completed within seven (7) days of the termination of the Lease or Lessee shall be charged $149.99 for the purchase of the Equipment. All returns will be subject to a restocking fee of $17.99 per Device. Failure to comply with this section will also result in Lessee’s forfeiture of the Security Deposit set forth in Section 4 above.
Lessee expressly covenants and agrees that it shall not assign, mortgage, hypothecate, or encumber this Lease or sublet or lend any of the Equipment or permit any of the Equipment to be used for the purpose of software alteration, addition, or improvement by anyone other than Lessee. No assignment or sublease by Lessee shall in any event relieve or release Lessee of or from any debt, duty, obligation, or liability under this Lease, and Lessee shall remain primarily liable under this Lease. Lessor, in its sole and absolute discretion, may sell, assign, transfer, pledge, hypothecate, grant security interests in, or otherwise encumber or dispose of this Lease or any interest in it, as a whole or in part, without notice to Lessee. Notwithstanding any assignment by Lessor, Lessor warrants that so long as Lessee is not in default under this Lease, Lessee shall quietly enjoy use of the Equipment subject to its terms and conditions and, as part of any assignment, the assignee shall agree that Lessee’s rights under the Lease in and to the Equipment shall not be disturbed so long as Lessee is not in default. Lessor shall notify Lessee in writing of any transfer of this Lease by Lessor, and Lessee agrees to acknowledge receipt of and comply with any notice given by Lessor in writing and to provide Lessor or it assignee with agreements, consent, conveyances, documents, and certificates that may be reasonably requested by Lessor or its assignee to effect, facilitate, or perfect any assignment by Lessor. Subject to the foregoing, this Lease shall inure to the benefit of and bind Lessor, Lessee, and their respective heirs, legatees, personal representatives, successors, and assigns.
Any of the following shall constitute a Default under this Lease:
On any Default under this Lease by Lessee, Lessor shall have the right, but shall not be obligated, to exercise at any time or from time to time any one or more of the following rights and remedies, any of which may be exercised by Lessor without notice to or demand on Lessee:
Lessor is authorized by Lessee, at Lessor’s expense, to file this Lease or any document or instrument as may be permitted by law showing the interest of Lessor in the Equipment, including filing financing statements and continuation statements pursuant to the Uniform Commercial Code. Lessee will promptly execute and deliver to Lessor any additional documents and assurances and take further action as Lessor may from time to time reasonably request in order to more effectively carry out the intent and purposes of this Lease and to establish and protect the rights, interests, and remedies intended to be created in favor of Lessor.
If Lessee fails promptly to perform any of its obligations under this Lease of accompany Software Subscription Agreement, Lessor, on written notice to Lessee, may (but shall not be obligated to and shall not incur any liability or obligation to Lessee or any third party for failure to) perform the same for the account of Lessee without waiving Lessee’s failure as a default. All sums paid or expenses or liabilities incurred by Lessor in such performance (including reasonable legal fees) shall be promptly reimbursed by Lessee on demand of Lessor, together with interest from the date paid by Lessor to the date reimbursed by Lessee at the annual rate of 18% or, if lower, the maximum rate that Lessor may lawfully charge.
Time is of the essence of this Lease.
This Lease may be amended only by an instrument in writing signed on behalf of each of Lessor and Lessee. No amendment, supplement, modification, or waiver of this Lease will be binding unless executed in writing by the party to be bound by it. No waiver of any of the provisions of this Lease will be deemed or will constitute a waiver of any other provision (whether or not similar), nor will the waiver constitute a continuing waiver unless otherwise expressly stated.
This Lease will be governed by and construed in accordance with the laws of the State of Washington without regard to its conflict-of-law principles.
This Lease shall inure to the benefit of and be binding on the parties and their respective heirs, successors, and assigns. Nothing in this Lease, express or implied, is intended to, or shall confer on, any person other than the parties to this Lease any rights, benefits, or remedies of any nature whatsoever under or by reason of this Lease.
If any one or more of the provisions of this Lease is for any reason held invalid, illegal, or unenforceable, the remaining provisions of this Lease will be unimpaired and will remain enforceable.
This Lease may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Lease may be executed and delivered by facsimile transmission or electronic mail, and a facsimile or electronic version of this Lease or of a signature of a party will be effective as an original.
BY CLICKING “I AGREE” AND/OR BY USING THE DEVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS AGREEMENT SHALL BE SUPERIOR TO, AND SUPERCEDE ANY CONFLICTING OR INCONSISTENT TERMS CONTAINED IN ANY OTHER DOCUMENTS PROVIDED TO THE LESSOR BY YOU, OTHER DOCUMENTS PROVIDED TO YOU BY THE LESSOR, OR AGREEMENTS PREVIOUSLY ENTERED INTO BY THE PARTIES. IF YOU DO NOT AGREE TO THE TERM OF THIS AGREEMENT, DO NOT INSTALL OR USE THE DEVICE AND/OR THE DATA, AND EXIT NOW BY CLICKING ON THE “I DO NOT AGREE” ICON BELOW.