the Equipment as of the date of this Agreement to secure your obligations to us under this Agreement, and you authorize us to file on your behalf such documentation as we may feel advisable to evidence or perfect such security interest.
7.Return or Purchase of Equipment at End of Term. Upon the completion of the Lease Term or any extension thereof and provided no default has occurred and is continuing you will have the option to (a) return the Equipment to us; (b) purchase the Equipment from us for its then fair market value, calculated as a percentage of the aggregate monthly lease payments in accordance with the following: If the Lease Term is forty-eight (48) months or more, the purchase option as a percentage of the aggregate monthly lease charges shall be ten percent (10% If the Lease Term is thirty-six (36) to forty- seven (47) months, the purchase option as a percentage of the aggregate monthly lease payments shall be fifteen percent (15% If the Lease Term is twenty-four (24) to thirty-five (35) months, the purchase option as a percentage of the aggregate monthly lease payments shall be twenty percent (20%); or (c) after the final monthly lease payment has been received by us, the Agreement will revert to a month by month rental at the existing monthly lease charge. If you do not want to continue to lease the Equipment, then you will be obligated to provide us with 60 -day written notice prior to the conclusion of the then current Term to terminate and return the Equipment to us. An upgrade of the leased equipment shall generate a $50 administrative charge. You agree that all equipment returns shall be to 365 W. Passaic Street, Ste. 225, Rochelle Park, NJ, 07662, and be done in a manner that can be tracked and shall have the Lease Number referenced on the return packaging. You understand and agree that equipment returned with excessive wear and tear will possibly result in you being charged the then fair market value of the equipment, or a fee to cover the excess wear and tear.
8.Limitation on Liability. We are not liable for any loss, damage or expense of any kind or nature caused directly or indirectly by the Equipment, including any damage or injury to persons or property caused by the Equipment. We are not liable for the use or maintenance of the Equipment, its failure to operate, any repairs or service to it, or by any interruption of service or loss of use of the Equipment or resulting loss of business. Our liability arising out of or in any way connected with this Agreement shall not exceed the aggregate lease amount paid to us for the particular Equipment involved. In no event shall we be liable for any indirect, incidental, special or consequential damages. The remedies available to you under this Agreement are your sole and exclusive remedies.
9.Non-Consumer Finance Lease. (a) You agree that it is the intent of both parties that this lease qualify as a statutory finance lease under Article 2A of the Uniform Commercial Code (“UCC”) and, to the extent permitted by applicable law, you waive any right you may have under Sections 2A-303 and 2A-508 through 2A-522 of the UCC. (b) You agree that you will only use the Equipment for commercial purposes and will not use the Equipment for any personal family or household purposes. As such, you agree that neither you nor any guarantor is a “consumer” with respect to this Agreement, and that this Agreement shall not be construed as a consumer transaction or as a “consumer lease”.
10.Indemnification. You shall indemnify and hold us and our affiliates, and our and their respective managers, employees and agents harmless from and against any and all losses, liabilities, damages and expenses, (including attorneys’ fees) resulting from (a) the selection, delivery, operation, use, condition, maintenance liens against, or return of the Equipment or (b) any breach by you of any of your obligations under this Agreement.
11.Default; Remedies. (a) If any debit of your bank account initiated by us is rejected when due, or if you otherwise fail to pay us any amounts due hereunder when due, or if you default in any respect in the performance or observance of any obligation or provision of this Agreement, any such event shall be a default hereunder. (b) Upon the occurrence of any default, we may at our option, without notice, (i) terminate this Agreement, repossess the Equipment and proceed in any lawful manner against you for collection of all charges that have accrued and are due and payable; accelerate and declare immediately due and payable all monthly lease charges for the remainder of the Term together with the fair market value of the Equipment (as determined by us), not as a penalty but as liquidated damages for our loss of the bargain. Upon any such termination for default, we may proceed in any lawful manner to obtain satisfaction of the amounts owed to us and, if applicable, our recovery of the Equipment, including entering onto your premises to recover the Equipment. In any case, you shall also pay us our costs of collection, court costs and reasonable attorneys’ fees, as well as applicable shipping, repair and refurbishing costs of recovered Equipment. You agree that we shall be entitled to recover any amounts due to us under this Agreement by charging your bank account or any other funds of yours that come into our possession or control, or within the possession or control of our affiliates, alliances or joint ventures, or by setting off amounts that you owe to us against any amounts we may owe to you, in any case without notifying you prior to doing so. Without limiting the foregoing, you agree that we are entitled to recover amounts owed to us under this Agreement by obtaining directly from any third- party service provider with which you have entered into a Merchant Agreement any funds held or available as settlement or security for payment under the terms of the Merchant Agreement, including funds available under the “Reserve Account; Security Interest” section of the Merchant Agreement, if applicable.
12.Assignment. You may not assign or transfer this Agreement or any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent. For purposes of this Agreement, any transfer of voting control of you or your parent shall be considered an assignment or transfer hereof. We may assign or transfer this Agreement and our rights and obligations hereunder, in whole or in part, to any third party without your consent. If we agree, in our sole discretion, to allow an assignment or transfer of this Agreement by you, you will be assessed a transfer and assumption fee of $150. This Agreement shall be binding upon, an inure to the benefit of, successors and permitted assigns of the parties hereto.
13.Lease Guaranty. All indebtedness that exists now or arises after the execution of this Agreement between you and any guarantor is hereby subordinated to all of your present and future obligations, and those of your guarantor, to us, and no payment shall be made or accepted on such indebtedness due to you from a guarantor until the obligations due to us are paid and satisfied in full.
14.Governing Law; Venue; Miscellaneous. THIS AGREEMENT SHALL BE GOVERNED BY AND WILL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW JERSEY (WITHOUT APPLYING ITS CONFLICTS OF LAWS PRINCIPLESYOU CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN NEW JERSEY IN ACTION OR PROCEEDING RELATING TO THIS AGREEMENT. YOU WAIVE ANY OBJECTION BASED UPON IMPROPER VENUE AND/OR FORUM NON CONVENIENS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. THE PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO A JURY TRIAL IN
ANY SUCH ACTION OR PROCEEDING. If any part of this Agreement is not enforceable, the remaining provisions will remain valid and enforceable.
15. Notices. All notices other than routine administrative communications must be in writing, and sent to you at your address set forth above or to us at 23970 Highway 59 North, Kingwood, Texas, 77339 (or such other address as a party may by written notice designate to the other) and shall be deemed to have been given if sent by mail or courier, upon the earlier of two business days after mailing or when actually received or, in the case of courier, when delivered. The customer service toll free number is 855-727-1210.
16. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to its subject matter, supersedes any previous agreements and understandings and can be changed only by a written agreement signed by all parties. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. A facsimile or other copy of this Agreement shall be the equivalent of an original for all purposes. You agree this document may be signed electronically pursuant to the Electronic Signatures in Global and National Commerce Act and other applicable law.