RECITALS

In consideration of the lease payments, covenants, and agreements herein contained, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Lessor hereby leases to Lessee, and Lessee takes from Lessor, the Hardware described herein on the conditions stated herein.

OPERATIVE PROVISIONS

1. Agreement

In consideration of the following covenants and conditions, Lessor hereby leases to Lessee, and Lessee hereby leases and hires from Lessor, all hardware, equipment, and other property described in the Hardware Schedule attached to, incorporated into, or otherwise referencing this Agreement (the “Hardware Schedule”). All hardware, equipment, and other property described in the Hardware Schedule are hereinafter collectively called the “Hardware.”

2. Term of Agreement; Renewal

The term of this Agreement shall commence on the Effective Date and shall continue thereafter for the initial term stated in the Hardware Schedule or applicable order (the “Term”), unless sooner terminated or extended as herein provided.

Provided Lessee is not in default hereunder pursuant to Section 14, Lessor hereby grants to Lessee the option to renew the Agreement for the renewal periods (if any) described in the Hardware Schedule or applicable order (each a “Renewal Option”). To exercise a Renewal Option, Lessee must provide Lessor with written notice on or before sixty (60) days prior to the expiration of the then-current term, unless the Hardware Schedule or applicable order states a different notice period. The Lease Payment shall continue as set forth in Section 3 below for the Term and each exercised Renewal Option, unless the Parties agree otherwise in writing.

3.  Lease Payments

Lessee agrees to pay to Lessor during the Term of this Agreement, including any Renewal Options, the monthly lease payment amount stated in the Hardware Schedule or applicable order (each, a “Lease Payment”).

Each Lease Payment shall be payable to Lessor on or before the first (1st) day of each month in immediately available funds in a manner determined by Lessor. If the first day of the month falls on a day that is not a business day, then the Lease Payment shall be due on the first business day following the first day of the month. All Lease Payments shall be due and payable in full, without notice or demand. Lessee waives all existing and future claims and agrees to pay the Lease Payments and other amounts under this Agreement when due regardless of any offset or claim which may be asserted by Lessee or on Lessee’s behalf.

4. Security Deposit (If Applicable)

If a security deposit is required under the Hardware Schedule or applicable order, then concurrently with the signing of this Agreement and prior to taking possession of the Hardware, Lessee shall deposit with Lessor the security deposit amount stated therein, as security for the performance by Lessee of the terms under this Agreement and for any loss or damage to the Hardware during the Term.

Lessor may comingle the security deposit with other funds of Lessor, and no interest will be payable to Lessee upon such security deposit. Lessor may use part or all of the security deposit to replace any Hardware unit(s) or to repair any damage to any Hardware unit(s) during the Term, whereupon, upon written notice from Lessor, Lessee shall restore the amount of the security deposit to its original amount. However, Lessor is not limited to the security deposit amount and Lessee remains liable for any balance.

Lessee shall have no right to apply or deduct any portion of any security deposit from any month’s Lease Payment. Lessee shall not use or apply any such security deposit at any time in lieu of payment of a Lease Payment. If Lessee breaches any terms or conditions of this Agreement, Lessee shall forfeit any deposit, as permitted by law.

5. Use of Hardware

Lessee shall inspect the Hardware within for

• Lessor will install/configure the Hardware as described in the Hardware Schedule. Lessee will be responsible for providing reasonable access, power, cabling pathways, rack space (if applicable), and suitable environmental and network conditions.
• If at any time Lessor supplies Lessee with labels, plates, or other markings stating that the Hardware is owned by Lessor, Lessee shall affix and keep such labels, plates, or other markings in a prominent place on the Hardware. Lessee shall not alter, disfigure, or cover up any such marks of identification displayed on the Hardware.
• No marking of any kind shall be placed on any piece of Hardware by Lessee except with the prior written consent of Lessor. Any such marking placed on a piece of Hardware by Lessee shall be removed at Lessee’s expense on or before the expiration or earlier termination of the Term for such piece of Hardware. Lessee shall, at Lessee’s expense and to Lessor’s satisfaction, place and maintain on each piece of Hardware any identifying marks required by Lessor.
• Lessee may not move, modify, repair, reconfigure, open or alter any piece of Hardware without Lessor’s prior written consent.
• Lessee shall operate each piece of Hardware exclusively in connection with its business. Lessee shall not operate or permit the operation of any piece of Hardware in an unsafe or improper manner.
• Lessee shall use the Hardware in accordance with any special conditions, restrictions on use, or any other condition specified by Lessor.
• Lessee shall educate and train its employees, managers, agents, and contractors on the property care and use of the Hardware. Lessee shall permit the Hardware to be operated only by competent and qualified employees, agents, or contractors of Lessee, and shall ensure that the Hardware is not subject to careless or needlessly rough usage.
• Lessee assumes and shall bear the entire risk of loss, theft, destruction, or damage of or to any part of the Hardware from any cause whatsoever, whether or not covered by insurance, and no such loss shall release Lessee of its obligation under this Agreement.
• Lessee shall keep the Hardware free and clear of all levies, liens, and encumbrances, and shall pay when due all license fees, registration fees, assessments, charges, and taxes (municipal, state, and federal) which may now or hereafter be imposed upon the ownership, leasing, renting, sale, possession, or use of the Hardware, excluding, however, all taxes on or measured by Lessee’s or Lessor’s income.

6. Maintenance and Replacement of Hardware

• If maintenance services are included under the Hardware Schedule or applicable order, Lessor will use commercially reasonable efforts to maintain the Hardware in working order, including repair or replacement as Lessor deems necessary. Lessor’s employees and agents shall have the right to access Lessee’s premises to inspect the Hardware on reasonable notice and during regular business hours.
• Lessor may substitute functionally equivalent or better equipment due to availability, lifecycle, or vendor changes, provided it does not materially reduce agreed functionality.
• Lessor is not responsible for failures or issues caused by Lessee’s misuse, abuse, negligence, unauthorized changes, environmental conditions outside manufacturer specifications, or third-party services/circuits. Any corrective work or services undertaken by Lessor may be billed time-and-materials.
• Lessor shall not be liable for loss of profit or other consequential damages resulting from the theft, destruction, or disrepair of the Hardware, and there shall be no abatement of Lease Payments on account of any such theft, destruction, or disrepair, unless otherwise determined in writing in Lessor’s sole discretion.

7. Acceptance of Hardware

Lessee shall inspect the Hardware within forty-eight (48) hours after receipt thereof. Unless Lessee gives written notice to Lessor, within said period, specifying any defect in or other proper objection to the Hardware, Lessee agrees that it shall be conclusively presumed, as between Lessor and Lessee, that Lessee has fully inspected and acknowledged that the Hardware is in good condition and repair, and that Lessee is satisfied with and has accepted the Hardware in such good condition and repair.

8. Surrender and Return of Hardware

If Lessee does not exercise any applicable purchase option (if offered), upon the expiration or earlier termination of this Agreement with respect to any item of the Hardware, Lessee shall return the same to Lessor in good repair, condition, and working order, ordinary wear and tear resulting from proper use thereof alone excepted, in the following manner as may be specified by Lessor:

• By delivering such item of Hardware at Lessee’s cost and expense to such place as Lessor shall specify within the city or county in which the same was delivered to Lessee or to which same was moved with the written consent of Lessor; or
• By loading such item of Hardware at Lessee’s cost and expense on board such carrier as Lessor shall specify and shipping the same, freight collect, to the destination designated by Lessor.

Unless Lessor specifies otherwise in writing, Lessee will return the Hardware within ten (10) business days after the effective termination/expiration date.

9. Failure to Return; Flat Fees

• If Lessee fails to return any unit of Hardware by the deadline set forth in Section 8, Lessee will pay Lessor, upon invoice, the following flat fee amounts (as applicable):
• all reasonable costs incurred by Lessor to retrieve the applicable Hardware unit(s) (including labor, shipping, travel, and third-party courier/recovery fees); and
• the full replacement cost of any Hardware unit(s) that is not returned or is returned damaged beyond reasonable wear and tear (replacement cost determined by Lessor based on new or refurbished equivalent, in Lessor’s reasonable discretion).
• Payment of retrieval and/or replacement costs does not waive any other rights or remedies available under this Agreement due to Lessee’s breach.

10. Purchase Option (If Applicable)

If a purchase option is offered under the Hardware Schedule or applicable order:

• Provided that Lessee is not in default pursuant to Section 14, Lessee shall have the option at the conclusion of the initial Term, or, if Lessee exercises a Renewal Option, the last occurring renewal term, to purchase all and no less than all the Hardware under this Agreement (the “Purchase Option”). No less than sixty (60) days prior to the expiration date of the applicable term, Lessee shall notify Lessor in writing in accordance with Section 20(j) of Lessee’s intention to exercise the Purchase Option. If Lessee fails to notify Lessor within the required timeframe, the Purchase Option shall expire and Lessee shall have no further right to purchase the Hardware under this Agreement.
• The purchase price (the “Purchase Price”) shall be as stated in the Hardware Schedule or applicable order, and payable on or before the expiration date of the applicable term.
• Upon payment of the Purchase Price and any other amounts then due and owing, Lessor shall transfer the Hardware to Lessee, as is, where is, without recourse, representation, or warranty of any kind, express or implied. Lessor may provide a bill of sale upon request.

11. Insurance (If Applicable)

If insurance requirements are stated in the Hardware Schedule or applicable order, Lessee will maintain, at its sole cost and expense, the insurance coverages and endorsements specified therein during the Term and until all Hardware is returned (or replacement cost is paid). Failure to maintain required insurance is a material breach. To the extent permitted by law, Lessor may (but is not obligated to) procure such insurance and bill Lessee for the cost plus an administrative fee.

12. Warranties

LESSOR MAKES NO WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION 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.

13. Indemnity

Lessee shall indemnify, defend, and hold harmless Lessor, its successors and assigns, and its affiliates and their successors and assigns and the respective directors, officers, managers, members, employees, consultants, financial advisors, counsel, accountants, and other agents of Lessor, its successors and assigns, Lessor’s affiliates, and their successors and assigns (collectively, “Indemnitees”) against any and all losses, injury, death, damages, liabilities, claims, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatsoever kind and nature, including attorneys’ fees and the cost of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers incurred by Indemnitees relating to, arising out of, or in connection with the transactions contemplated by this Agreement, including without limitation:

• the selection, design, manufacture, delivery, purchase, acceptance, or rejection of any Hardware unit(s) or the ownership of any Hardware unit(s);
• the lease, possession, maintenance, use, condition, repair, return, disposition, operation, storage, or transportation of any Hardware unit(s), any parts, or any modifications thereto (including, without limitation, latent and other defects, whether or not discoverable by Lessor or Lessee);
• any inaccuracy in or breach of any of the representations of Lessee contained in this Agreement;
• any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Lessee pursuant to this Agreement; and
• any assertion of the infringement of patent, trade secret, trademark, copyright, or other intellectual property rights of third parties.

14. Default

• Lessee shall be in default under this Agreement if Lessee shall:
  • fail to pay any Lease Payments or any other amount required under this Agreement within ten (10) days after the same becomes due and payable;
  • fail to perform or observe according to its terms any covenant contained in this Agreement, or any other instrument or document executed in connection with this Agreement;
  • become insolvent, cease business as a going concern, make an assignment for the benefit of creditors, or cause or permit a petition for receiver or in bankruptcy to be filed by or against Lessee (including a petition for reorganization); or
  • commit or fail to commit any act that jeopardizes the rights of Lessor or causes Lessor to deem itself insecure as to its rights.
• Lessor shall be in default under this Agreement if Lessor shall fail to perform or observe according to its terms any covenant contained in this Agreement, or any other instrument or document executed in connection with this Agreement.

15. Remedies Upon Default

• If a Party is in default under this Agreement, the other Party, with or without notice to the defaulting Party, shall have the right to exercise any one or more of the following remedies:
  • to terminate this Agreement as to any or all Hardware unit(s);
  • to pursue any other remedy at law or in equity.
• In addition to the remedies listed in Section 15(a), if Lessee is in default under this Agreement, Lessor, with or without notice to Lessee, shall have the right to exercise any one or more of the following remedies:
  • to declare the entire amount of Lease Payments for the current Term immediately due and payable as to any or all Hardware unit(s), without notice or demand to Lessee;
  • to sue for and recover all Lease Payments and other payments then accrued or thereafter accruing, with respect to any or all Hardware unit(s);
  • to take possession of any or all Hardware unit(s), without demand or notice, wherever same may be located, without any court order or other process of law. Lessee hereby waives any and all damages occasioned by such taking of possession unless caused by Lessor’s gross negligence or willful misconduct. Any said taking of possession shall not constitute a termination of this Agreement as to any or all Hardware unit(s), unless Lessor expressly so notifies Lessee in writing;
  • to sell any or all Hardware unit(s) at public or private sale, with or without notice to Lessee or advertisement, or otherwise dispose of, hold, use, operate, lease to others, or keep idle such Hardware unit(s), and without any duty to account to Lessee for such action or inaction or for any proceeds with respect thereto, and apply the net proceeds thereof (after deducting all expenses, including legal fees and costs, incurred in connection therewith) to the amounts owed to Lessor under this Agreement; provided, however, that Lessee shall remain liable to Lessor for any deficiency that remains after any sale or lease of such Hardware unit(s).
• Notwithstanding any repossession, or other action which Lessor may take, Lessee shall be and remain liable for the full performance of all obligations on the part of Lessee to be performed under this Agreement.
• No right or remedy herein conferred upon or reserved to a Party under this Agreement is exclusive of any other right or remedy herein or by law or equity provided or permitted; but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise and may be enforced concurrently therewith or from time to time.
• In no event, however, shall these remedies be exercised in such a manner that Lessor recovers more than the balance of the unpaid Lease Payments for the current Term and any other amounts payable by Lessee to Lessor hereunder, plus the fair market value which the Hardware would have at the end of the initial term of the Agreement.

16. Bankruptcy

Neither this Agreement nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by a Party hereto, or such an action is commenced against said Party and is not dismissed within sixty (60) days after the commencement thereof, or if said Party is adjudged insolvent, or if said Party makes any assignment for the benefit of its creditors, or if a writ of attachment or execution is levied on any of the Hardware unit(s) and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed, in any proceeding or action to which said Party is a Party, with authority to take possession or control of any of the Hardware unit(s), the non-filing Party shall have and may exercise any one or more of the remedies set forth in Section 15 hereof; and this Agreement shall, at the option of the non-filing Party, on notice to the filing Party and/or any court-appointed trustee, immediately terminate and shall not be treated as an asset of the filing Party after the exercise of said option.

17. Ownership

The Hardware is, and shall at all times be and remain, the sole and exclusive property of Lessor, except as expressly set forth in this Agreement; and Lessee shall have no right, title, or interest therein or thereto except as expressly set forth in this Agreement.

18. Service Charge and Interest (If Applicable)

If late fees and/or interest are stated in the Hardware Schedule or applicable order, then Lessee shall pay such late fees and/or interest as stated therein, to the extent permitted by applicable law, together with any expenses incurred in collecting the late payment (including attorneys’ fees and costs).

19. Claims

Lessor hereby appoints and constitutes Lessee as its agent and attorney-in-fact during the term of this Agreement to assert and enforce, at the sole cost and expense of Lessor, whatever claims and rights Lessor may have as owner of the Hardware against any vendors, manufacturers, suppliers, or contractors in respect thereof.

20. General Provisions

• Waiver or Forbearance.
  • No delay or omission in the exercise of any right or remedy of Lessor on any default of Lessee shall impair such right or remedy or be construed as a waiver. Any waiver of Lessor of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement.
  • No waiver by Lessor of any breach by Lessee of any obligations, agreements, or covenants hereunder shall be a waiver of any subsequent breach of any other obligation, agreement, or covenant.
  •  Nor shall any forbearance by Lessor to seek any remedy for any breach by Lessee be a waiver by Lessor of its rights and remedies with respect to such or any subsequent breach.
• Costs and Expenses of Enforcement. In the event of the failure of either Party hereto to comply with any provisions of this Agreement, the defaulting Party shall pay any and all costs and expenses, including reasonable attorneys’ fees arising out of or resulting from such default, or in obtaining possession of any Hardware unit(s), or in pursuing any remedy hereunder, or by the laws of the State of Delaware, whether such remedy is pursued by filing suit or otherwise.
• Severability. If any condition, covenant, or other provision herein contained is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect any other covenant or condition herein contained. If such condition, covenant, or other provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.
• Entire Agreement. This Agreement contains the complete and exclusive statement of the agreement between Lessor and Lessee relating to the Agreement and the Hardware, and cannot be amended, altered or changed except by a written instrument signed by the Parties. This Agreement shall not constitute a contract until accepted in writing by an authorized representative of Lessor. Any representation or statement made by Lessor or Lessee not stated herein shall not be binding.
• Amendments. This Agreement may be modified only by a writing signed by the Parties in interest at the time of the modification.
• Covenants and Conditions. Each provision of this Agreement performable by Lessee shall be deemed to be both a covenant and a condition.
• Binding Effect. Subject to any provisions hereof restricting assignment or subletting by Lessee, this Agreement shall bind the Parties, their personal representatives, successors, and assigns; provided that this provision shall not be construed as permitting assignment, substitution, delegation, or other transfer of rights or obligations by Lessee except with the prior written consent of Lessor.
• Assignment. Without the prior written consent of Lessor, Lessee shall not: (a) assign, transfer, pledge, or hypothecate this Agreement, the Hardware or any part thereof, or any interest therein to any person or entity; or (b) sublet the Hardware or any part thereof or permit the Hardware or any part thereof to be used by anyone other than Lessee or Lessee’s employees. Consent to any of the foregoing prohibited acts applies only to the instance for which it is given and is not a consent to any subsequent like act.
• Captions. Captions are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
• Notices. All notices, statements, demands, requests, consents, or approvals hereunder by either Party to the other shall be in writing and shall be sufficiently given and served upon the other Party. Among other methods of service, any notice relating to this Agreement or rights or remedies hereunder may be served by certified United States mail, postage prepaid, addressed to the receiving Party at the notice address on file with the sending Party (or such other address as a Party may designate by notice). Notice given by mail shall be deemed delivered three (3) days following date of deposit for mailing.
• Time. Time is of the essence of each term, provision, and covenant of this Agreement.
• Exhibits / Schedules. The Hardware Schedule and any other schedules or exhibits that reference this Agreement are incorporated herein by reference and are binding upon the Parties.
• Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
• Gender and Number. The singular number includes the plural whenever the context so indicates. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes corporation, partnership, or other legal entity when the context so requires. The word “person” means person or persons or other entity or entities or any combination of persons and entities; and whenever the word Lessor is used herein, it shall include all assignees of Lessor. If there is more than one Lessee named in this Agreement, the liability of each shall be joint and several.
• Offset. Lessee hereby waives any and all existing and future claims and offsets against any Lease Payment or other payment due hereunder, and agrees to pay the Lease Payment and other amounts hereunder regardless of any offset or claim which may be asserted by Lessee or on its behalf.
• Electronic Signatures. Signatures delivered by electronic means (including PDF and e-signature platforms) are intended to be binding and treated as originals, to the fullest extent permitted under applicable law, including the U.S. federal ESIGN Act of 2000, as amended.
• Additional Documents. At Lessor’s request, Lessee shall execute and deliver to Lessor such documents as Lessor shall deem necessary or desirable for the purpose of recording or filing.
• Governing Law; Venue. The law of the State of Delaware shall govern all questions concerning the construction, validity, interpretation, and enforceability of this Agreement, and the performance of the obligations imposed by this Agreement. Each Party agrees that any legal action arising in whole or in part under or in connection with this Agreement shall be brought only in the state courts located in New Castle County, Delaware or the United States District Court for the District of Delaware. Each Party waives any claim that venue should properly lie in any other location.