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MSA+ Equipment Lease Agreement

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MSA+ Equipment Lease Agreement

This Equipment Lease Agreement (“Agreement”) is made between the MSA affiliate (“Lessor”), and company (“Lessee”) indicated on the MSA+ Master Lease Agreement (“Master Lease”).

This Agreement is effective as of the last dated signature by the parties. In consideration of the mutual covenants contained herein, the parties agree as follows:

  1. AGREEMENT. Lessee agrees to rent from Lessor, and Lessor agrees to rent to Lessee, on the terms and conditions contained in this Agreement, the equipment listed in the Master Lease (“Equipment”).
  2. TRUE LEASE. The parties intend this to be a true lease (and for the avoidance of doubt not a finance lease or a security interest). At all times Lessor has title to the Equipment. Lessee acquires no ownership, title, property, right, equity, or interest in the Equipment other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement. Notwithstanding the foregoing, the parties further intend and agree that, if this Agreement is recharacterized under U.S. law as a secured financing or a lease intended for security, this Agreement shall be deemed a security agreement and Section 1 hereof shall be deemed to grant Lessor by Lessee a lien on and first priority security interest in the Equipment and all proceeds thereof, to secure the payment of Lessee's obligations under this Agreement.
  3. NET LEASE. This is a net lease.
  4. TERM; RENTALS; HELL-OR-HIGH WATER LEASE. This Agreement is effective for the lease term (“Lease Term”) indicated on the Master Lease. For the Lease Term, Lessee agrees to pay to Lessor all rental amounts and other sums due hereunder, together with any other payment indicated on the Master Lease (“Rent”), without abatement, deduction, claim, counterclaim, withholding, reduction or set-off for any reason. Lessee’s obligation to make payment shall be absolutely and unconditional. Lessee shall pay Rent as set forth by Lessor in the Master Lease. Rent is exclusive of VAT and any other applicable taxes or duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time as prescribed by applicable law. Should Lessee fail to make timely payment, whether for Rent or any other payment obligation due under this Agreement, then, without limiting Lessor’s remedies under this Agreement, all payments due to be paid under this Lease, whether past, present, or future, shall be accelerated and immediately due and owing to Lessor. In addition, Lessee shall pay Lessor interest at the maximum rate permitted by applicable law, but in no event more than a rate of 1.5% per month, on any amount past due from the date Lessee is required to make any payment of Rent or other amount hereunder. Such interest shall be payable with respect to the period commencing on the date such payment is due through the date such payment is actually made. Lessee’s payment of any late charge shall not excuse Lessee from any default under this Agreement or any Appendix of the Master Lease. If indicated in the Master Lease, the Lessor may automatically debit the Rent from the Lessee’s nominated account. The parties agree to execute such documents as are required to set up such automatic debit arrangement.
  5. GOVERNMENT ENTITIES. Where lessee is a state or local government entity (“Government Customer”) and seeks to use a third-party service partner for processing payment (“Third-Party Billing Partner”), the Government Customer must obtain written approval for such arrangement from Lessor prior to the execution of this Agreement. Lessor retains the right to reject any Third-Party Billing Partner in its sole discretion. If Lessor approves, the Third-Party Billing Partner shall sign as a party to this Agreement solely for the purpose of guaranteeing all of Lessee’s payment obligations under the Agreement, which shall be joint and several with Lessee. For clarity, any Third-Party Billing Partner signing this Agreement shall not be considered Lessee under this Agreement for any other reason and shall have no enforcement rights hereunder.
  6. WARRANTY. Lessee shall be entitled to Lessor’s standard manufacturer’s warranty that accompanies the Equipment. The warranty period will be extended, as needed, to cover the Lease Term, as defined in the Master Lease. This warranty will be Lessee’s exclusive remedy for any breach of warranty claim under this Agreement and any applicable Appendices of the Master Lease. Lessor reserves the right the fulfill the warranty through replacement with devices of greater, equal, or comparable functionality to the Equipment.
  7. NO OTHER WARRANTIES BY LESSOR; MAINTENANCE COMPLIANCE WITH LAWS AND INSURANCE.
    1. Lessee agrees that Lessor is supplying the Equipment at Lessee’s request and that it is of a size, design, and capacity selected by Lessee. Lessee will be deemed to have accepted the Equipment as soon as it has been delivered and is operational. Except as provided in Section 6, LESSOR MAKES NO WARRANTY OR REPRESENTATON, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, QUALITY, DESIGN, CONDITION, CAPACITY, NON-INFRINGEMENT, TITLE, SUITABILITY, MERCHANTABILITY OR PERFORMANCE OF THE EQUIPMENT OR OF THE MATERIAL OR WORKMANSHIP THEREOF, OTHER THAN SUCH WARRANTIES AS CANNOT BE EXCLUDED BY LAW. LESSEE ACCORDINGLY AGREES NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST THE LESSOR BASED THEREON. LESSEE FURTHER AGREES, REGARDLESS OF CAUSE, NOT TO ASSERT ANY CLAIM WHATSOEVER AGAINST THE LESSOR FOR LOSS OF ANTICIPATORY PROFITS OR CONSEQUENTIAL LOSS ORDAMAGES, FOR ANY REASON RELATED TO THIS AGREEMENT. LESSOR MAKES NO WARRANTY OF ANY KIND THAT THE EQUIPMENT, OR ANY RELATED ACCESSORY, COMPONENT, SOFTWARE, OR OTHER PORTION OF THE MSA+ PROGRAM, WILL MEET LESSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
    2. No verbal commitment, guarantee, promise, condition, representation, or warranty shall be binding upon Lessor; all prior conversations, leases or representation related hereto and/or to the Equipment are integrated herein, and no modification hereof shall be binding unless in writing signed by Lessor. Lessee agrees, at its own cost and expense, (i) to pay all charges and expenses in connection with the operation of each item of Equipment; (ii) to comply with all governmental laws, ordinances, regulations, requirements and rules with respect to the use, maintenance and operation of each item of Equipment; (iii) to maintain at all times general liability insurance (including products and completed operations), property damage, and all risk property coverage including without limitation coverage for damage or destruction by fire, theft, or accident for the full replacement cost of the Equipment, in an amount (and with deductibles) reasonably satisfactory to Lessor, protecting Lessor’s interest as it may appear, and naming Lessor as loss payee as to property insurance and additional insured as to liability insurance with subrogation waived and to deliver to Lessor evidence of such insurance coverage prior to the first day of the term of this Agreement and, thereafter, within ten (10) days of the expiration of any insurance; (iv) to maintain at all times insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as the Lessor may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and (v) insurance against such other or further risks relating to the Equipment as may be required by law, together with such other insurance as the Lessor may from time to time consider reasonably necessary and advise to the Lessee in writing. All insurance policies shall provide that no modification or cancellation thereof shall be effective as to Lessor without thirty (30) days prior written notice to Lessor, and Lessee guarantees to keep the Equipment in good condition, reasonable wear and tear excepted.
    3. If Lessee self-insures against any liability or property exposure or Lessee’s insurance otherwise does not cover the loss, then Lessee agrees to fully indemnify Lessor against any loss pursuant to this Agreement. Failure of Lessee to maintain requisite insurance shall not cause any remedy available to Lessor to fail, and Lessee shall indemnify and hold harmless Lessor from and against any claim, damage, expense, loss, or cost (including attorneys’ fees) resulting or related to Lessee’s failure to maintain requisite insurance. Lessee shall be responsible for paying any deductibles due on any claims under such insurance policies. In the event of any claim arising under such insurance policies, Lessee shall give immediate written notice to the Lessor. If Lessee fails to effect or maintain any of these insurances required under this Agreement, Lessor shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Lessee. Lessee shall, on demand, supply copies of the relevant insurance policies or other insurance confirmation acceptable to the Lessor and proof of premium payment to the Lessor to confirm the insurance arrangements.
    4. The Equipment shall be kept by Lessee (i) subject to inspection by Lessor at reasonable times and manner and for such purposes, allow Lessor to enter onto Facilities at which the Equipment may be located, (ii) at locations, facilities, services areas, or work sites (“Facilities”) of Lessee (or the Facilities of Lessee’s customers, where Lessee is a channel partner of Lessor) which Equipment shall be kept in the possession of Lessee’s personnel or Lessee’s designated individuals, and used only for the purposes for which the Equipment is designed, (iii) free of all security interests of any kind whatever, liens, encumbrances and other claims, except (1) those of persons claiming solely against Lessor but not Lessee on account of obligations which Lessee is not required by this Agreement to discharge, (2) liens of current taxes not delinquent and for which Lessee is in the process of notifying Lessor, (3) marked with the Lessor’s identification marks or numbers and, if requested by Lessor, conspicuously labeled with labels supplied by Lessor to disclose Lessor’s interest in the Equipment, and (4) in good and efficient working order, condition and repair, reasonable wear and tear expected. Lessee will, within five (5) days of receiving notice thereof, promptly notify Lessor in writing of any mortgage, pledge, lien, attachment, charge, encumbrance or right of others which has arisen with respect to the Equipment.
    5. Mandatory Modifications. Lessee, at its sole expense, shall make any alteration or modification to the Equipment, including without limitation the replacement or addition of any component, that is:
      1. required or supplied by the Lessor or manufacturer; or
      2. necessary to comply with applicable laws, rules, regulations, or specifications, and Lessee shall notify Lessor within five (5) days of learning that an alteration or modification is required.
  8. NEW EQUIPMENT VERISON. Should Lessor release a new version of the Equipment, Lessee has the option, on or after the first six (6) months of the Lease Term, to approach Lessor for a new Equipment Rental Agreement at market rate pricing for that new version for the same Lease Term as provided herein and pay an upgrade fee. Any upgraded version of the Equipment shall be subject to the terms and conditions of this Agreement.
  9. QUIET ENJOYMENT AND DELIVERY.
    1. Where no Event of Default has occurred, and excluding any emergency product recall or similar event, Lessee shall and may quietly have, hold and enjoy the Equipment and every part thereof leased hereunder for the Lease Term, as such Lease Term may be extended hereunder, free from disturbance by Lessor or its agents, employees, successors or assigns, or by anyone (whether the holder of a lien or otherwise) claiming solely by, through or under Lessor.
    2. If Lessee is a private entity, Lessee hereby warrants and represents to Lessor, and its respective successors and assigns: (i) that it has full capacity and authority to enter into and perform its obligations under this Agreement; (ii) that no consent or approval of any trustee or holder of any indebtedness or obligation, and no consent or approval of, or taking of any other action with respect to, any governmental authority, is necessary for execution, delivery or performance of this Agreement; (iii) that this Agreement is legal, valid, binding, and enforceable against the Lessee in accordance with its terms, subject to enforcement limitations imposed by rules of equity or by bankruptcy or similar laws; (iv) where applicable, Lessee is a corporation validly existing and in good standing under the laws of the jurisdiction of its incorporation and the jurisdiction(s) where the Equipment will be located and has adequate corporate power to enter into and perform this Agreement; (v) that the information provided by Lessee in any application to lease the Equipment which is provided by Lessee to Lessor or its agent is true and correct.
    3. If Lessee is a government or quasi-government entity, Lessee represents, covenants and warranties, and as requested by Lessor, will deliver a statement to the effect that: (i) Lessee is a fully constituted political subdivision or agency of the State (or Province) of the Equipment Location, as defined in the Master Lease; (ii) the execution, delivery and performance by the Lessee of this lease have been duly authorized by all necessary action on the part of the Lessee; and (iii) this Lease constitutes a legal, valid and binding obligation of the Lessee enforceable in accordance with its terms. Lessee agrees that (i) it will do or cause to be done all things necessary to preserve and keep the Lease in full force and effect; (ii) it has complied with all bidding requirements where necessary and by due notification presented this Agreement for approval and adoption as a valid obligation on its part; and (iii) it has sufficient appropriations or other funds available to pay all amounts due hereunder for the Lease Term.
    4. Delivery shall be made by the Lessor. The Lessor shall use all reasonable endeavors to effect delivery by the agreed delivery date. The risk of loss, theft, damage, or destruction of the Equipment shall pass to the Lessee on delivery. The Lessee shall procure that a duly authorized representative of the Lessee shall be present at the delivery of the Equipment. Acceptance of delivery by such representative shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. If required by the Lessor, the Lessee's duly authorized representative shall sign a receipt confirming such acceptance. To facilitate delivery, the Lessee shall at its sole expense provide all requisite materials, facilities, access, and suitable working conditions to enable Delivery to be carried out safely and expeditiously. If the Lessee fails to accept delivery of the Equipment on the delivery date, then, except where such failure is caused by the Lessor's failure to comply with its obligations under this Agreement: (i) the Equipment shall be deemed to have been delivered at 9.00 am on the delivery date; and (ii) the Lessor shall store the Equipment until delivery takes place, and charge the Lessee for all related costs and expenses (including insurance).
  10. DESTRUCTION, LOSS, DAMAGE, MODIFICATION or SUBSTITUTION OF EQUIPMENT.
    1. Lessee shall use the Equipment exclusively for its business, in accordance with the manufacturer’s intended use, with due care to prevent injury to any person or property, and in conformity with all applicable laws, ordinances, rules, regulations and other requirements of any insurer or governmental body and with all requirements of the Lessor or other manufacturer with respect to the use, maintenance and operation of the Equipment. Lessee shall not modify any Equipment without the prior written consent of Lessor. Any permitted modifications not removed prior to the return of the Equipment to Lessor shall become the property of Lessor. Lessee shall pay for any damage to the Equipment resulting from its modifications or its removal of such modifications prior to returning the Equipment. It is the intention and understanding of both Lessor and Lessee that the Equipment shall be and at all times remain separately identifiable personal property.
    2. Lessee shall be responsible for all non-warranty related costs, expenses and obligations of every kind and nature, including replacement parts, incurred in connection with the use, maintenance, servicing, repair, or operation of the Equipment which may arise or be payable during the Lease Term of such Equipment, and shall keep the Equipment in as good repair, condition and working order, normal wear and tear excepted, as when delivered to Lessee. To avoid doubt, title in any and all replacement parts shall vest in Lessor.
    3. Lessee has obtained all permits, licenses, certifications, and authorizations required for Lessee to lease and use the Equipment and all such permits, license, certifications, and authorization 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 such Permit.
    4. Lessee assumes and shall bear the entire risk of partial or complete loss, theft, damage, destruction, condemnation, requisition, taking by eminent domain or other interruption or termination of use of the Equipment from any cause whatsoever, whether or not insured against, from the date of delivery of the Equipment until the Equipment is returned to and received by Lessor. Lessee shall immediately notify Lessor of any such event, and Lessor shall be entitled to the proceeds of any claim or right of Lessor or Lessee against any third party on account of the foregoing events. Lessor is entitled to be reimbursed by Lessee for all costs and expenses, including court costs and legal fees, incurred in connection with enforcing or realizing upon any such claim or right to proceeds.
    5. In the event of theft, loss, condemnation, or destruction of any Equipment, Lessee shall pay a one-time replacement fee in the amount detailed at Equipment Lease Exhibit 1, which represents the reasonable and estimable value of a lost or stolen device. In the event of damage or modification to the equipment, the Lessee shall pay for repairs to the equipment at prevailing repair rates in addition to the rental fees incurred. If Lessee substitutes or swaps any of the originally supplied equipment, accessories, or components parts with other used, worn or otherwise non-originally supplied items, the Lessee shall pay the full replacement price for all substituted or swapped items in addition to the rental fees incurred. Title to all such substitutes or swaps shall vest in the Lessor. Lessor shall not be obligated to undertake, by litigation or otherwise, the collection of any claim against any person for loss or damage of the Equipment. The total or partial loss of use or possession thereof to Lessee shall not release or relieve Lessee from the duty to pay the rental fees due under this Agreement.
  11. CLEANING, SANITIZING & DECONTAMINATION OF EQUIPMENT. All rental equipment being returned must be cleaned, sanitized, or decontaminated as necessary to prevent exposure of any person handling the returned equipment to health hazards in handling material, and in accordance with Lessor instructions, if any. A Certificate of Decontamination must accompany any equipment being returned that has been exposed to a hazardous substance. All applicable laws and regulations shall apply. Lessee agrees to pay additional charges if required to clean, sanitize, remove added stickers, or otherwise return the equipment to the same condition as it was when rented.
  12. RETURN OF EQUIPMENT. Within thirty (30) days upon the earlier of expiration or earlier termination of (i) this Agreement or (ii) the Lease Term, the Lessee shall return the Equipment to Lessor in the same condition as received, reasonable wear and tear excepted, and in the condition required by Section 11. Lessee shall permit the Equipment to be inspected by agent(s) of Lessor, if Lessor so requests, and shall cause the Equipment to be (a) repaired, if necessary, so as to place the Equipment in the foregoing condition, (b) crated, and (c) shipped by truck or other normal ground transportation to such address as Lessor may designate. Lessor shall pay all expenses arising from any Lessor inspection, and Lessee shall pay all expenses arising from the above clauses (a), (b) and (c) of this Section 12. Should Lessee continue to possess the Equipment after it is due to be returned to Lessor, Lessee shall continue to pay Rent on a month-to-month basis on the terms of this Agreement until the Equipment is returned, plus any costs or expenses incurred by Lessor due to the Equipment holdover.
  13. TAXES. Sales Tax is additional to the Rent. Lessee agrees to pay all applicable taxes due upon the rental fees and upon additional goods or services that may be sold or provided as part of this Agreement. For clarification, Lessor shall pay any property tax associated with the Equipment, in reliance upon reporting from Lessee regarding the location of the Equipment. Where Lessee is a channel partner of Lessor, Lessee is responsible to report on the current location of the Equipment at the Facilities of Lessee’s customers. Lessee shall defend, indemnify, and hold harmless Lessor from and against any claim, loss, or damage (including attorneys’ fees) incurred or brought against Lessor due to a violation of this Section 13.
  14. SHIPPING. Shipping charges are additional to the Rent. Lessee agrees to pay applicable shipping charges for MSA to ship the rented equipment to the desired shipping address. Lessee also agrees to pay shipping charges for returning the Equipment to the designated MSA rental center, per Section 12.
  15. RIGHT OF INSPECTION AND IDENTIFICATION OF EQUIPMENT. Lessee will at all times protect and defend, at its own cost and expense, the title and interest of Lessor from and against all claims, liens, and legal processes of creditors of the Lessee and keep all the Equipment, and Lessee’s interest therein, free and clear from all such claims, liens and processes. Lessee shall not grant or permit any lien on the Equipment except in favor of Lessor. Lessee shall maintain all Equipment-related information in a manner consistent with industry practice (but in no event less than reasonable practices and a reasonable degree of care), comprehensiveness, and accuracy, and as required by applicable law, rule, or regulation. Upon Lessor’s reasonable request, Lessee shall promptly furnish to Lessor such Equipment-related information.
  16. DEFAULT. An “Event of Default” shall occur if:
    1. Lessee fails to pay when due any installment of Rent as set forth on the Master Lease, or any payment owed under the SaaS Agreement;
    2. Lessee ceases doing business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar arrangement under any present or future statute, law or regulation or files an answer admitting the material allegations of a petition filed against it in any such proceeding, consents to or acquiesces in the appointment of a trustee, receiver, or liquidator of it or of all or any substantial part of its assets or properties, or if it or its shareholders shall take any action looking to its dissolution or liquidation;
    3. within forty-five (45) days after the commencement of any proceedings against Lessee seeking reorganization, arrangement, readjustment, liquidation, dissolution, or similar relief under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within forty-five (45) days after the appointment without Lessee’s consent or acquiescence of any trustee, receiver or liquidator of it or of all or any substantial part of its assets and properties, such appointment shall not be vacated;
    4. any loss, theft, damage, destruction, sale, assignment, transfer, loss of possession, lien, or encumbrances of or on the Equipment or any interest in this Agreement;
    5. any failure by Lessee to maintain insurance on the Equipment and supply evidence thereof as required in this Agreement;
    6. any levy against or seizure or attachment of, the Equipment or any interest in this Agreement;
    7. any use of the Equipment in violation of this Agreement; or
    8. any default by Lessee under any other obligation to, or agreement with Lessor, including without limitation, this Agreement (including the Master Lease and SaaS Agreement).

Upon the occurrence of an Event of Default, Lessor shall have all the rights and remedies provided by applicable law and by this Agreement, and Lessor may, in its sole discretion, exercise one or more of the following remedies: (a) declare this Agreement, including the Master Lease and SaaS Agreement, in default; (b) terminate in whole or in part this Agreement, including the Master Lease and SaaS Agreement; (c) take possession of, or render unusable, the Equipment and/or any related SaaS, without demand or notice, without any court order or other process of law, and without liability to Lessee for any damages occasioned by such action; (d) declare all unpaid rentals and other sums due and to become due, whether under this Agreement, the Master Lease, or the SaaS Agreement, immediately due and payable; (e) proceed by appropriate court action or actions or other proceedings either at law or in equity to enforce performance by Lessee of any and all covenants of this Agreement and to recover damages for the breach thereof; (f) demand that Lessee deliver the Equipment immediately to Lessor at Lessee’s expense at such place as Lessor may designate; (g) use the cloud connectivity feature of the Equipment to shut down the Equipment or certain features thereof, such that the Equipment cannot be used by Lessee; and/or (h) without notice, liability or legal process, enter by itself and/or its agents into any premises of or under control or jurisdiction of Lessee or any agent of Lessee where the Equipment may be or is believed to be, and repossess all or any item thereof, disconnecting and separating all thereof from any other property and using all force necessary or permitted by applicable law so to do. Upon the occurrence of an Event of Default, Lessee hereby expressly waives all further rights to possession of the Equipment and all claims for injuries suffered through or loss caused by such repossession or lack of access. Lessee shall be responsible for all expenses of retaking, repairing, holding or the like, including Lessor’s reasonable attorney’s fees and expenses. The provisions of this paragraph shall be without prejudice to any rights given to the Lessor by such statute to prove any amounts allowed thereby.

Notwithstanding that this is a rental agreement and title to the Equipment is always in Lessor, Lessor may nevertheless at its option elect to exercise those rights and remedies of a secured party under the Uniform Commercial Code. Further, if Lessee is in default of any of its obligations under this Agreement or an Event of Default has occurred, Lessor may, in its sole discretion, make any payment or perform any obligation on behalf of Lessee or take any action that Lessor in Lessor's sole discretion deems necessary to maintain and preserve the Equipment and Lessor's interests therein. Lessor's payment, performance of such obligation, or taking of such action shall not be a waiver by Lessor of any default or Event of Default or a release of Lessee by Lessor. Lessee shall pay immediately on demand to Lessor all sums so paid by Lessor and any expenses (including legal fees and costs) incurred by Lessor in connection with Lessor's payment, performance of such obligation, or taking of such action.

17. INDEMNITY; LIMITATION OF LIABILITY. Lessor shall not be liable to Lessee for and Lessee shall indemnify in full and save Lessor harmless from and against any and all costs, liabilities, losses, damages, expense, causes of action, suits, claims or judgments (including attorneys’ fees and legal costs and penalties), loss of profit, loss of reputation suffered or incurred by Lessor arising out of or in connection with all liability loss or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by Lessee or its officers, employees, agents and contractors, and Lessee shall indemnify any failure by the Lessee to comply with the terms of this Agreement.

Lessor shall not be liable to Lessee for any and all liability arising from or caused directly or indirectly by: (a) Lessee’s failure to promptly perform any of its obligations under this Agreement, or (b) subject to the paragraph below, injury to person or property resulting from or based upon the actual or alleged use or operation of any or all of the Equipment, or (c) inadequacy of the Equipment, or any part thereof, for any purpose or any deficiency or defect therein or the use or maintenance thereof or any repairs, servicing or adjustments thereto or any delay in providing or failure to provide any thereof or any interruption or loss of service or use thereof for any loss of business.

Where Lessee is located in the United Kingdom, nothing in this Agreement limits any liability which cannot legally be limited including liability for (a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) breach of section 8 of the Supply of Goods and Services Act; or (d) any matter in respect of which it would be unlawful for the Parties to exclude or restrict liability.

NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN, LESSOR’S AND ITS AFFILIATES' TOTAL LIABILITY FOR ALL CLAIMS, WHETHER BASED ON BREACH OF CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, INDEMNITY, OR OTHERWISE, RELATING TO THE EQUIPMENT SHALL NOT EXCEED THE AMOUNTS PAID BY LESSEE FOR SUCH EQUIPMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO SUCH CLAIM. LESSOR SHALL HAVE NO LIABILITY OR INDEMNIFICATION OBLIGATION RESULTING FROM LESSEE’S NEGLIGENCE, MISUSE OF THE EQUIPMENT, OR FAILURE TO FOLLOW MANUFACTURER’S INSTRUCTIONS.

NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL LESSOR BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, INDEMNITY, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT (A) SUCH DAMAGES WERE FORESEEABLE, AND (B) LESSOR HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

18. ASSIGNMENT, NOTICES, REMEDIES AND WAIVERS. Without the prior written consent of Lessor, in its absolute discretion, the Lessee shall not assign this Agreement or its interests hereunder (including but not limited to any sublease of the Equipment, except where (i) Lessor has deemed Lessee, in its sole discretion and as evidenced by a written distribution agreement, as an authorized MSA Channel Partner able to sub-lease the Equipment, and (ii) such Lessee has flowed down the provisions of this Lease to sub-lessee, using language substantially similar to that found in the Master Lease.). Any purported assignment in violation of this Section 18 shall be null and void, and failure of Lessee to flow down these Lease provisions shall be an Event of Default. Any MSA Channel Partner that enters into a sub-lease as authorized above does so at its own risk and shall pay Rent and other sums due as a Lessee under this Agreement at all times, regardless of whether it receives payment or not from a sublessee, and such MSA Channel Partners understands and agrees that Lessor shall have no liability associated with any sublease.

All notices shall be either (i) delivered in person to an officer of the Lessor or Lessee; (ii) mailed certified mail; or (iii) sent by recognized overnight mail service to Lessor or Lessee, as applicable, at its respective address shown on the Master Lease or at such other address as Lessor or Lessee notifies the other Party in accordance with this Section. Notice shall take effect, where delivered by hand, at the time of delivery, in the case of a certified mail or overnight courier, at the time of delivery or at 9:00 am (local time in the country of the addressee) on the second business day after the time and date of posting.

No remedy of Lessor under this Agreement shall be exclusive of any other remedy under this Agreement or by law or in equity provided, but each shall be cumulative and in addition to every other remedy.

No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

19. FURTHER ASSURANCES. Lessee shall execute and deliver to Lessor, upon Lessor’s request, such other instruments, documents, and assurances as Lessor deems necessary or advisable for the confirmation or perfection of this Agreement and Lessor’s rights under this Agreement.
20. GOVERNING LAW; DISPUTE RESOLUTION.

Unless Lessee is located in one of the jurisdictions identified below, this Agreement is governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provisions. Unless Lessee is located in one of the jurisdictions identified below, any dispute in connection with this Agreement shall be resolved in the State or Federal Courts of the Commonwealth of Pennsylvania, each Party submitting to the exclusive jurisdiction and venue of such court. Both parties waive any rights to remove any action to a court located outside of Allegheny County, Pennsylvania. The Parties agree that this contract is not a contract for the sale of goods, and the United Nations Convention on Contracts for the Sale of Goods (“CISG”) shall not apply.

Where Lessee is located in the United Kingdom (“UK Lessee”), this Agreement shall be governed by and construed in accordance with, the laws of England and Wales, excluding the CISG. For any UK Lessee, any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London, UK. The language to be used in the arbitral proceedings shall be English. Notwithstanding the above arbitration provision, and at Lessor’s option, any payment disputes regarding outstanding Rent under Section 4 of the Agreement may be referred to and finally resolved by the courts of London, UK instead of arbitration.

21. AGREEMENT IRREVOCABILITY. This Agreement is irrevocable for its full term and for the aggregate Rent described above. The Rent shall not abate by reason of termination of Lessee’s right of possession and/or the taking of possession by the Lessor or for any other reason. A cancellation or termination hereunder shall occur only upon written notice by Lessor to Lessee, or repossession as provided above, and only with respect to such items of Equipment as Lessor specifically elects to cancel or terminate by such notice or repossession. Except as to any such item of Equipment with respect to which there is a cancellation or termination, this Agreement shall remain in full force and effect and Lessee shall be and remain liable for the full performance of all its obligations.

In the event Lessee is a municipal or other government authority, Lessee reasonably believes that funds can be obtained sufficient to pay Rent during the Lease Term and hereby covenants that it will do all things lawfully within its power to obtain, maintain and properly request and pursue funds from which the Rent may be made, including making provisions for such payments to the extent necessary in each budget submitted for the purpose of obtaining funding, using its bona fide best efforts to have such portion of the budget approved and exhausting all available and administrative reviews and appeals in the event such portion of the budget is not approved. It is Lessee’s intent to pay Rent for the full Lease Term if funds are legally available therefor and, in that regard, Lessee represents the use of the Equipment is essential to its proper, efficient, and economic operation.

In the event Lessee is located in the United States and is a municipal or other government authority and no funds or insufficient funds are appropriated and budgeted or are otherwise available by any means whatsoever in any fiscal period for Rent due under this Lease, then the Lessee will immediately notify the Lessor or its assignee of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to Lessee of any kind whatsoever, except as to the portions of Rent herein agreed for which funds shall have been appropriated and budgeted or are otherwise available. In the event of such termination, Lessee agrees to peaceably surrender possession of the Equipment to Lessor or its assignee on the date of such termination, packed for shipment in accordance with manufacturer specifications and freight (and duties, where applicable) prepaid and insured to any location in the continental United States designated by Lessor. Lessor will have all legal and equitable rights and remedies to take possession of the Equipment.

22. SURVIVAL, ENTIRE AGREEMENT, MODIFICATIONS IN WRITING. Sections 1-5, 6, and 9-27 shall survive termination or expiration of this Agreement. This Agreement, along with the Master Lease, SaaS Agreement, and if applicable the Device Protection Agreement, shall constitute the entire agreement between the parties hereto with respect to the Equipment, and supersedes any proposal, terms sheet or other communication between the parties and may not be contradicted by oral or written communication, whether prior or contemporaneous. Any change or modification hereto and any related agreement must be in writing and signed by the parties hereto, and nothing in this Agreement shall be changed by course of dealing, course of trade, etc. In the event this Agreement is executed buy more than one Lessee, the obligations of each shall be joint and several.
23. COUNTERPARTS; E-SIGNATURE. This Agreement, and any writing the subject matter or content of which is, or relates to, or arises out of, this Agreement, may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the Parties. This signed Agreement or counterparts may be exchanged electronically or stored electronically as a photocopy (such as in .pdf format). The Parties agree that electronically exchanged or stored copies will be enforceable as original documents, including as relevant in accordance with the Electronic Signatures in Global and National Commerce Act (“E-Sign Act”), Title 15, United States Code, Sections 7001, et seq., the Uniform Electronic Transaction Act (“UETA”), and any applicable state law. The Parties consent to the use of electronic and/or digital signatures (including but not limited to a digital “click-thru”) for the execution of this Agreement and further agree that the use of such electronic and/or digital signatures will be binding, enforceable and admissible into evidence in any dispute regarding this Agreement. The Agreement does not take effect until it has been executed by both Parties.
24. INDEPENDENT CONTRACTOR. The parties are independent contractors to one another. Lessor is not, and shall not be deemed to be, an agent, employee, or representative of Lessee, for any purpose whatsoever.
25. SEVERABILITY. If this Agreement or any provision or a part provision hereof is deemed by a final court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect or in any jurisdiction, that provision or part-provision will be deemed not to form part of this Agreement and such invalidity, illegality or unenforceability of this Agreement will not affect the remainder of the provisions or part-provisions of this Agreement. Upon such determination that any term, provision or part of a provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
26. HEADINGS, INTERPRETATION. Whenever the context of this Agreement requires, the singular number includes the plural. Section headings contained herein are solely for the convenience of the parties and are not an aid in the interpretation of the instrument. This Agreement shall be deemed mutually written and executed by the parties; nothing shall be construed as against the drafter. Time is of the essence of this Agreement and its provisions. The wording, “including” means “including without limitation” unless specifically noted otherwise.
27. FORCE MAJEURE. Except for Lessee’s obligations to make payment hereunder, in no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including materials shortages, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
28. THIRD PARTY RIGHTS. This Agreement is for the benefit of the Parties and their successors and permitted assigns and does not confer any rights or benefits on any third party, including any employee or contractor of a Party, any client of a Party, or any employee of a client of a Party. The rights of the Parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any person that is not a party to this Agreement.

IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.


LESSOR:

________________________________________________________

By: __________________________________________________

Title: __________________________________________________


LESSEE:

________________________________________________________

By: __________________________________________________

Title: __________________________________________________



EXHIBIT 1

REPLACEMENT PRICE FOR LOST, STOLEN, OR DESTROYED EQUIPMENT

Product

USD Replacement Price (per device)

ALTAIR io 4

$ 600

ALTAIR io DOCK Test Stand

$ 550

ALTAIR io DOCK Cylinder Holder

$ 350

ALTAIR io CHARGE

$ 125

ALTAIR 4XR

$ 450

ALTAIR 5X - Mono Display

$ 850

ALTAIR 5X - Color Display

$ 1,000

ALTAIR 5X IR - Mono Display

$ 1,100

ALTAIR 5X IR - Color Display

$ 1,200

ALTAIR 5X PID - Mono Display

$ 1,300

ALTAIR 5X PID - Color Display

$ 1,400

ALTAIR

$ 90

ALTAIR 2X, 2XT, 2XP

$ 150

GALAXY GX2 Test Stand

$ 800

GALAXY GX2 Cylinder Holder

$ 400

Multi Unit Charger

$ 250

ALTAIR Pump Probe

$ 400