TECHNOLOGY AS A SERVICE (TAAS) PROGRAM MASTER LEASE AGREEMENT

Transcription

1 Final TECHNOLOGY AS A SERVICE (TAAS) PROGRAM MASTER LEASE AGREEMENT THIS TAAS PROGRAM MASTER LEASE AGREEMENT ( Agreement ) is made between LiftForward, Inc. ( LiftForward ) and the undersigned customer ( Customer ) on the later of the two signature dates below. For valuable consideration, the parties agree as follows. 1. LEASE. LiftForward will lease to Customer, and Customer will lease from LiftForward, certain computer hardware and accessories, including certain operating system software installed thereon, but excluding any additional software (e.g Office365 or other productivity software) that is installed thereon (the Equipment ) described in each Equipment schedule signed by Customer and LiftForward (each, a Schedule ). Each Schedule incorporates the terms of this Agreement, each of which will constitute a separate lease (a Lease ). The items set forth on each Schedule shall each be purchased by Customer from Microsoft Corporation or its Affiliates (collectively Microsoft ) pursuant to a purchase agreement, a true and complete copy of which shall be provided to LiftForward by Customer (a Purchase Agreement ). LiftForward makes no representations or warranties with respect to the Equipment or any other services or benefits provided under a Purchase Agreement. Nothing in this Agreement invalidates or changes any licenses, end user agreements that may come with or apply to Equipment or any component or software included with any Equipment. 2. Assignment and Assumption. Concurrently with the effectiveness of any Schedule and the related Lease, Customer hereby assigns all of Customer s right, title and interest in and to the Equipment set forth on the related Schedule to LiftForward. Such Equipment shall be free and clear of any liens or encumbrances as of the time of such assignment and following such assignment LiftForward shall hold good and valid title to such Equipment. Concurrently with the effectiveness of any Schedule and the related Lease, LiftForward shall also hereby assume, and shall thereafter be solely responsible for discharging, Customer s payment obligations relating to the Equipment under the related Purchase Agreement. For the avoidance of doubt: (A) LiftForward shall not assume any other rights or obligations of Customer under the Purchase Agreement other than the specific payment obligations referenced in the prior sentence and (B) Customer shall not assign, and shall remain the beneficiary of, any other rights with respect to any services or other intangible benefits provided by Microsoft under the Purchase Agreement. 3. PAYMENTS. Customer will pay to LiftForward the lease payments (as specified in the corresponding Schedule) and all other sums when due and payable under a Lease in a manner acceptable to LiftForward. Payments may be applied by LiftForward first to delinquency charges and other such charges due under such Lease, then to lease payments, and then to any other liabilities due and owing under such Lease or under any other agreement, in any order and manner selected by LiftForward. 4. TAXES. Customer will pay all sales, use, rental, property, excise, gross receipts, withholding and other taxes, charges and fees upon or with respect to the Equipment or the possession, ownership, leasing, use or operation, control or maintenance thereof (or any lease payments or receipts hereunder), by any governmental entity or taxing authority, whether due before or after the end of the term shown on the corresponding Schedule. Customer s obligations under this Section will survive the expiration or termination of this Agreement and any Lease. 5. OWNERSHIP, USE, MAINTENANCE AND REPAIR. During the term of each Lease, LiftForward shall own the Equipment and Customer shall have the right to use the Equipment under the terms of the Lease. Customer grants LiftForward a precautionary security interest in all Equipment and all products and proceeds thereof to secure all of Customer s obligations under the Lease in the event the Lease is deemed to be a secured transaction. So long as Customer is not in default of Customer s obligations, LiftForward hereby assigns to Customer all LiftForward s rights under any manufacturer or supplier warranties. Customer must keep the Equipment free of liens and notify LiftForward immediately if any tax or other lien is placed on the Equipment in breach of the foregoing requirement. Customer will: (rev. 7/15)

2 (a) keep the Equipment in Customer s exclusive control and possession;; (b) USE THE EQUIPMENT ONLY FOR BUSINESS PURPOSES, AND NOT FOR PERSONAL, HOUSEHOLD OR FAMILY PURPOSES;; (c) use the Equipment in conformity with all insurance requirements, manufacturer s instructions and manuals;; (d) keep the Equipment repaired and maintained in good working order and as required by the manufacturer s warranty and Equipment manuals;; (e) maintain accurate and complete records of all repairs and maintenance to the Equipment;; and (f) give LiftForward reasonable access to inspect the Equipment and its maintenance and other records. Customer will not make any alterations, additions or improvements to the Equipment which are permanent or which detract from its economic value or functional utility, except as may be required by law. The Equipment must remain in the United States at all times. If Customer fails to comply with any provision of any Lease, LiftForward may take any actions it deems necessary to effect such compliance and all expenses incurred by LiftForward will constitute additional expenses under the Lease, due to LiftForward within five days after notice is sent to Customer requesting payment. LiftForward effecting such compliance will not be a waiver of Customer s default. 6. INDEMNITY. CUSTOMER IS RESPONSIBLE FOR ALL LOSSES, DAMAGES, CLAIMS, INJURIES, LIABILITIES AND ATTORNEYS FEES AND COSTS, INCLUDING WITHOUT LIMITATION, THOSE INCURRED IN CONNECTION WITH RESPONDING TO SUBPOENAS, THIRD PARTY OR OTHERWISE ( CLAIMS ), WHETHER BASED ON A THEORY OF STRICT LIABILITY OR OTHERWISE, INCURRED, CAUSED OR ASSERTED BY ANY PERSON, IN ANY MANNER RELATING TO THE EQUIPMENT. CUSTOMER WILL DEFEND AND INDEMNIFY LIFTFORWARD AGAINST ALL CLAIMS, ALTHOUGH LIFTFORWARD RESERVES THE RIGHT TO CONTROL THE DEFENSE AND TO SELECT OR APPROVE DEFENSE COUNSEL AT CUSTOMER S EXPENSE. THIS INDEMNITY CONTINUES BEYOND THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND ANY LEASE AND MAY BE ENFORCED BY, AND IS FOR THE BENEFIT OF LIFTFORWARD AND ITS SUCCESSORS, ASSIGNS, AFFILIATES, BENEFICIARIES AND ALL OF LIFTFORWARD S AND SUCH AFFILIATES, BENEFICIARIES, SUCCESSORS AND ASSIGNS RESPECTIVE DIRECTORS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AGENTS, PREDECESSORS, ATTORNEYS-IN-FACT AND LAWYERS. 7. PREPAYMENT;; EARLY TERMINATION. Customer has the right to prepay in full, but not in part, all of Customer s obligations under a Lease (the Prepayment ) prior to the end of the scheduled term. Any such Prepayment shall be made in the amount of the then corresponding Prepayment Amount. The Prepayment Amount shall be an amount equal to: (a) all lease payments and all other sums due but unpaid under the Lease, plus (b) all lease payments to become due during the remainder of the term, plus (c) the termination fee (as specified in the corresponding Schedule). Upon LiftForward s receipt of the Prepayment Amount, Customer shall become the owner of the Equipment (but not any software included therein, which shall remain subject to the terms of the applicable license). In the alternative, Customer may terminate the Lease prior to the end of the scheduled term by paying LiftForward the Prepayment Amount and returning the Equipment to LiftForward within 30 days. 8. LOSS OR DAMAGE. Customer assumes all risks of loss, theft, damage to or destruction of the Equipment. If any item of Equipment is lost, stolen or damaged (reasonable wear and tear excepted) Customer will immediately notify LiftForward in writing and, at Customer s option and cost, within 30 days after such event, either: (a) promptly repair the item to LiftForward s satisfaction or replace the item with a comparable item acceptable to LiftForward (and notify LiftForward immediately of the serial number of such replaced item);; or (b) pay LiftForward the Prepayment Amount. 9. UNCONDITIONAL OBLIGATION. Except as expressly provided in Section 7, Customer s obligation to pay lease payments and other amounts due under such Lease is absolute and unconditional. Customer shall not be entitled to any abatement or reductions of, or set-offs against, the lease payments or other amounts due LiftForward. Customer s obligations will not be affected by reason of any defect in or damage to, or loss of possession, use or destruction of any Equipment. 10. DEFAULT. Any of the following events shall constitute a default under this Agreement: (a) Customer fails to remit to LiftForward any payment within thirty (30) days of the due date;; (b) Customer fails to return the Equipment to LiftForward within 30 days after termination of the Lease, 2

3 whether at the end of the scheduled lease term (in the event Customer affirmatively declines any automatic renewal available under the Lease) or upon early termination, (c) Customer breaches any other obligation under any Lease or related document and fails to correct such violation within ten days following notice;; (d) Customer becomes insolvent, is liquidated or dissolved, transfer substantially all of Customer s stock or assets, stops doing business or assigns Customer s rights or property for the benefit of creditors, or a petition is filed by or against Customer under any bankruptcy or insolvency law;; (e) Customer defaults under any other agreement with LiftForward or any of its affiliates;; (e) any Equipment is illegally used;; (f) there is any merger, consolidation or change in controlling ownership of Customer, or if Customer is a sole proprietorship, Customer dies or has a guardian appointed;; or (g) any of the preceding events occurs with respect to any guarantor of any Lease or any guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of any Lease. 11. REMEDIES. In the event of default, LiftForward may, in its sole discretion (a) terminate any or all of the Leases and declare any or all amounts due under this Agreement and under the Leases to be immediately due and payable, all without notice of any kind to Customer;; (b) declare any other agreements between LiftForward in default;; (c) require Customer to immediately return all of the Equipment;; (d) enter the property where the Equipment is located and peaceably, with or without legal process, repossess or disable the Equipment;; (e) lease or sell the Equipment or any portion thereof;; (f) charge Customer interest on all amounts due LiftForward from the due date until date of payment at the rate of 1.5% per month, but in no event more than the lawful maximum rate;; and (g) charge Customer for expenses incurred in connection with the enforcement of LiftForward s remedies including, without limitation, repossession, repair and collection costs, attorneys fees and court costs. The foregoing remedies are cumulative, are in addition to any other remedies provided for by law or equity, and may be exercised concurrently or separately. LiftForward may apply the proceeds of any recovery in the following order of priority: (i) to pay all of LiftForward s costs, charges and expenses related to the default;; then (ii) to the extent not previously paid by Customer to LiftForward, to pay LiftForward all sums due from Customer under this Agreement. To the extent permitted by applicable law, LiftForward may retain any surplus. Any failure or delay by LiftForward to exercise any right will not operate as a waiver of any other right or future right. To the extent permitted by applicable law, Customer waives any rights now or hereafter conferred by statute or otherwise that may limit or modify any of LiftForward s rights or remedies under this Lease, including any rights Customer may have which require LiftForward to sell any Equipment to mitigate damages or provide Customer with notices of default, intent to accelerate amounts becoming due or acceleration of such amounts. 12. ASSIGNMENT. Customer may not assign or dispose of any rights or obligations under the Lease or transfer, assign or sub-lease the Equipment, without LiftForward s prior written consent. LiftForward may, without notifying Customer, assign any or all of LiftForward s interest in the Lease or LiftForward s interest in the Equipment. If LiftForward does make an assignment of the Lease, LiftForward s assignee will have all of LiftForward s rights under the Lease, but none of LiftForward s obligations, unless expressly assumed by the assignee. If Customer receives written notice of an assignment from LiftForward, Customer will pay all lease payments and other amounts payable under any assigned Lease to such assignee or as instructed by LiftForward. Customer agrees not to assert against LiftForward s assignee claims, offsets or defenses Customer may have against LiftForward. 13. Consent to Contact. Without limiting any other rights LiftForward (or any person or entity acting on LiftForward s behalf or service the Lease for LiftForward) may have, I consent to LiftForward (and/or any person or entity acting on LiftForward s behalf or servicing the Lease for LiftForward) communicating with me in connection with the consideration of my application or the administration of the Lease (including, for certainty, the circulation of invoices, in the event of a missed payment and in connection with any enforcement by LiftForward) in compliance with applicable laws, using any telephone number, address, or other contact information that I provided when applying for credit from LiftForward, or using any telephone number, address, or other contact information that I provide in the future, or using any telephone number, address, or other contact information that the persons listed in my application as references provide to LiftForward (and/or any person or entity acting on LiftForward s behalf or servicing the Lease for LiftForward) now or in the future. LiftForward (and/or any person or entity acting on LiftForward s behalf or servicing the Lease for LiftForward) may 3

4 communicate with me using any current or future means of communication, including but not limited to: automated telephone dialing equipment;; artificial or pre-recorded voice messages;; telephone or other electronic facsimile machine;; SMS or text messages;; and directed to me at a mobile telephone service, or otherwise directed to me. I acknowledge that I am in an existing business relationship with LiftForward and that such communications are informational communications and are not made for the purpose of telemarketing, solicitation, offer of further financing opportunities or promotion of LiftForward (any/or any person or entity acting on LiftForward s behalf or servicing the Lease for LiftForward). LiftForward (and/or any person or entity acting on LiftForward s behalf or servicing the Lease for LiftForward) may use such means of communication even if I will incur costs to receive such telephone messages, telephone calls, SMS or text messages, s, or other means. 14. Personal Guarantee. Every Guarantor (listed below) agrees to unconditionally, absolutely and irrevocably personally guarantee payment of all amounts due (including all present and future debts and liabilities) under the terms of this Agreement and Lease and the performance of Borrower of its obligations under this Agreement. In the event of a default under this Agreement, Guarantor agrees to pay the total outstanding balance under this Agreement (including any fees, charges and interests) upon demand and to perform the obligations under the terms of this Agreement, without requiring LiftForward to proceed first to enforce payment against the Borrower. Each Guarantor agrees that if any amounts are for any reason whatsoever not paid or performed under the above guarantee, such Guarantor will, as a separate and distinct obligation, indemnify and save harmless LiftForward from and against all losses resulting from the failure of such Guarantor to pay such payment or perform such obligation. Each Guarantor agrees that if any amounts are for any reason whatsoever are not paid or performed under the above guarantee or LiftForward is not indemnified for any reason whatsoever under the indemnity contained above, such obligations will, as a separate and distinct obligation, be performed by such Guarantor as primary obligor. The Guarantor waives all notices regarding the Agreement or this guarantee, and agrees that this guarantee shall remain in full force and effect until the Agreement has terminated and all amounts due have been paid in full. Guarantor agrees that LiftForward may report the personal liability of Guarantor for indebtedness and obligations under this Agreement and the status of the Lease to credit bureaus and others who may lawfully receive such information. The Guarantor agrees that his or her personal credit history may be used in making credit decisions, and authorizes LiftForward to obtain consumer reports on the Guarantor from time to time. 15. MISCELLANEOUS. Notices must be in writing and will be deemed given 3 days after mailing to Customer s (or LiftForward s) business address. Customer authorizes LiftForward or its agent to prepare and file UCC financing statements and any amendments or continuation relating to the Equipment. Any claim Customer has against LiftForward must be made within one year after the event which caused it. If a court finds any provision of a Lease to be unenforceable, all other terms will remain in effect and enforceable. Customer authorizes LiftForward to insert or correct missing or incorrect information on a Lease, including Customer s proper legal name, serial numbers and any other information describing the Equipment. CUSTOMER HEREBY ACKNOWLEDGES AND CONFIRMS THAT CUSTOMER HAS NOT RECEIVED ANY LEGAL, TAX, FINANCIAL OR ACCOUNTING ADVICE FROM LIFTFORWARD. Restrictive endorsements on checks Customer sends to LiftForward will not reduce Customer s obligations. LiftForward may charge Customer a return check or non-sufficient funds charge in accordance with LiftForward s policy, which is returned by the bank for any reason (not to exceed the maximum amount permitted by law). Customer will notify LiftForward at least 60 days in advance of any proposed change in Customer s legal name or Customer s state of incorporation or formation. All written communication concerning disputed amounts, including any check or other payment instrument that (i) indicates that the written payment constitutes payment in full or is tendered as full satisfaction of a disputed amount or (ii) is tendered with other conditions must be mailed or delivered to LiftForward at the address for billing inquiries shown on the related Schedule and not to the payment address. LiftForward and Customer intend to comply with all applicable laws. LiftForward will not charge or collect any amounts in excess of those allowed by applicable law. Any part of this Agreement or any Lease that could, but for this Section, be read under any circumstance to allow for a charge higher than that allowable under any applicable legal limit, is limited and modified by this Section to limit the amounts chargeable under the Lease to the maximum amount allowed under the legal limit. Any amount received 4

5 by LiftForward in excess of that legally allowed will be applied by LiftForward to the payment of amounts legally owed under the Lease, or refunded to Customer. THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES. YOU EXPRESSLY AGREE THAT THIS AGREEMENT IS A "TRANSFERABLE RECORD" FOR ALL PURPOSES UNDER THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT OF THE UNITED STATES OF AMERICA AND THE UNIFORM ELECTRONIC TRANSACTIONS ACT OF THE UNITED STATES OF AMERICA. BOTH PARTIES WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR ANY LEASE. THIS AGREEMENT AND EACH LEASE WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, AND ANY LEGAL ACTION OR PROCEEDING SHALL BE BROUGHT EXCLUSIVELY IN THE FEDERAL OR STATE COURTS SITTING IN SACRAMENTO, CALIFORNIA. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER CALIFORNIA LAW. LIFTFORWARD, INC. CUSTOMER: Address: Address: 5

6 Guarantors Guarantor: Address: 6

7 EQUIPMENT SCHEDULE NO.. This Equipment Schedule (this Schedule ) is attached to and made a part of the TaaS Program Master Lease Agreement ( Master Agreement ) made by and between LiftForward, Inc. ( LiftForward ) and the undersigned customer ( Customer ). The terms and conditions of the Master Agreement are incorporated into this Schedule, and together, this Schedule and the Master Agreement as it relates to this Schedule, constitute a lease ( Lease ) between LiftForward and Customer for the Equipment described in this Schedule. A. EQUIPMENT. Pursuant to the terms of the Master Agreement and this Schedule, LiftForward will lease to Customer the Equipment listed below: B. FINANCIAL TERMS. 1. Total Lease Amount: 2. Term (No. of Months): ;; provided that if Customer fails to return the Equipment within 30 days following the expiration of the term the Lease shall automatically renew for consecutive monthly periods and Customer shall owe the applicable Lease Payment for each such additional period. 3. Effective. 4. Lease Start. 5: Purchase Order Number:. 6. Lease Payment: (plus applicable taxes during any renewal period as determined by LiftForward in its sole discretion) 7. Frequency of Lease Payment: Monthly (in Arrears) 8. Termination Fee: $99.00 per Surface unit, inclusive of the related accessories as set forth in the table above 9. Initial Tax Fees (if applicable): (payable immediately upon execution of this Schedule) C. PAYMENT TERMS AND FEES. All payments will be automatically withdrawn or drafted on each Lease Payment Date from your account identified during the application process. 1. Late Payment Fees will be imposed where Borrower fails to pay any Scheduled Payment Amount on any Scheduled Repayment Date. Where the Scheduled Payment Amount is (i) less than $100, a $15 late payment fee shall be applied, (ii) equal to or greater 7

8 than $100 but less than $250, a $29 late payment fee shall be applied and (iii) equal to or greater than $250, a $39 late payment fee will be applied. 2. Not Sufficient Funds Fee in the amount of $29.00 will be imposed if the ACH draft is refused or your bank or financial institution returns a payment instrument unpaid, or refuses to honor your direct debit, or we cannot process such payment, for any reason. You will incur this Not Sufficient Funds Fee even if your payment is later honored by your bank or financial institution upon subsequent presentment. 3. Miscellaneous Fees in the following amounts shall be applied to the amount outstanding under the Credit Facility: research $15.00 per hour and copies of billing $4.00 per copy. ALL TERMS AND CONDITIONS ON THIS SCHEDULE ARE BINDING UPON THE PARTIES HERETO. To the extent of any conflict or inconsistency between this Schedule and the Master Agreement, this Schedule will prevail, but only with respect to the Lease created hereunder. This Schedule is not binding or effective with respect to the Master Agreement or Equipment until executed on behalf of LiftForward and Customer by authorized representatives. The obligations of Customer, if there are more than one of them, are joint and several. IN WITNESS WHEREOF, LiftForward and Customer have caused this Schedule to be executed by their duly authorized representatives effective as of the later of the two signature dates below. LIFTFORWARD, INC. CUSTOMER: 8

9 Guarantors Guarantor: Address: 9