THIS EQUIPMENT LEASE AGREEMENT (this “Lease”) is made and effective when confirming an order (the “Order”) during the ordering process, by and between Hot Pixel, LLC (“Lessor”) and the customer (“Lessee”). By confirming an Order, Lessee agrees to be bound by these terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth, the parties hereto agree as follows:
LEASE.
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the equipment (the “Equipment”) described in the Order.
TERM.
The term of this Lease shall commence on the day of the first attempt by the carrier to deliver the item, and expire on the last day of the lease as stated in the Order. The equipment must be return shipped to Lessor during business hours on the last day of the lease. In the event the last day is a Saturday, Sunday or postal holiday, a shipping extension to the next working day is granted.
SHIPPING.
Lessee is responsible for costs of shipping the Equipment to Lessee’s premises and back to Lessor. Lessor will send Lessee an email at the email address Lessee has provided when Equipment is shipped. Lessor will send Lessee an email at the email address Lessee has provided when Equipment leased by Lessee is returned. Lessor cannot guarantee when an order will arrive. Consider any shipping or transit time offered by Lessor or other parties only as an estimate. Lessee is encouraged to order in a timely fashion to avoid delays caused by shipping or product availability. Both the outbound (from Lessor to Lessee’s premises) and inbound (from Lessee back to Lessor) shipping charges for the Order will be paid in advance and in full. Use of shipping or delivery methods other than those arranged for or specified by Lessor constitutes a violation of these terms. Such violation may result in the application of penalties/late fees as applicable.
LEASE PAYMENTS.
The lease payments for the Equipment shall be paid in advance in full.
CANCELLATIONS.
Cancellations are made by contacting us via phone or e-mail and are subject to the following terms: (1) Cancellation by Lessee of 1 week or more before lease period is about to commence will result in no charge and (2) Cancellation by Lessee of 1 week or less before lease period is about to commence will result in charge equal to the prorated charge associated with 4 days of the lease. Lessor will promptly confirm with Lessee via email cancellations received by Lessor. Such confirmations will indicate the effective date of cancellation. If Lessee does not promptly receive a cancellation confirmation from Lessor, then it is Lessee’s responsibility to contact Lessor in order to confirm that Lessee’s cancellation notice was received by Lessor.
USE.
Lessee shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal, police and other laws, ordinances and regulations in any way relating to the possession, use, or maintenance of the Equipment.
RESTRICTIONS.
The Equipment has been re-engineered by Lessor in order to provide certain unique infrared photographic functionality (the “Special Engineering”). Such Special Engineering is the confidential information of Lessor and, as a condition to Lessor’s agreeing to lease the Equipment to Lessee, Lessee agrees (i) not to open, tamper with, examine or attempt to reverse engineer, the Special Engineering, or to allow or facilitate in any manner any third party to do any of the same, (ii) not to use, except in conjunction with permitted uses of the Equipment, the Special Engineering, (iii) not to disclose to any third party any information or aspect of the Special Engineering, and (iv) not to use the Special Engineering in any manner to compete with, or assist a third party to compete with, Lessor. Upon return of the Equipment, if Lessor determines that impermissible tampering has occurred, for instance, if certain labels designed to prevent and evidence tampering indicate that tampering has occurred, then Lessor, may at its option, retain the full value of the deposit provided by Lessee, and return the Equipment, at Lessee’s expense, to Lessee. If Lessor chooses this option, then Lessee will own the Equipment, provided that the confidentiality restrictions set forth in this Section will continue to apply. Additionally, Lessee acknowledges that a breach of the confidentiality restrictions set forth in this Section would result in irreparable harm to Lessor, not compensable by monetary damages. Accordingly, upon such a breach, Lessor shall be permitted to seek injunctive and other equitable relief.
RIGHT TO LEASE.
Lessor warrants that Lessor has the right to lease the Equipment, as provided in this Lease.
ORDER ACCEPTANCE POLICY.
Your receipt of an electronic or other form of order confirmation does not signify Lessor’s acceptance of Lessee’s Order, nor does it constitute confirmation of Lessor’s offer to lease. Lessor reserves the right at any time after receipt of Lessee’s Order to accept or decline or cancel Lessee’s Order for any reason.
OWNERSHIP.
The Equipment is, and shall at all times be and remain, the sole and exclusive property of Lessor; and the Lessee shall have no right, title or interest therein or thereto except as expressly set forth in this Lease.
REPAIRS.
Lessor shall keep the Equipment in good repair, condition and working order and shall furnish any and all parts, mechanisms and devices required to keep the Equipment in good mechanical working order. Lessee shall not in any way repair or materially alter the physical or otherwise makeup of the Equipment.
LOST, DAMAGED, OR UNRETURNED EQUIPMENT.
Lessee hereby assumes and shall bear the entire risk of loss and damage to the Equipment from any and every cause. Lessee shall not in any manner tamper with, disassemble or reverse engineer Equipment, and Lessee shall be fully responsible for all expenses and costs resulting from such actions required to return the Equipment to its original condition. No loss or damage to the Equipment or any part thereof shall impair any obligation of Lessee under this Lease which shall continue in full force and effect through the term of the Lease.
In the event of damage of any kind to the Equipment, Lessee agrees to allow Lessor to charge Lessee’s credit card for the full cost of repair of said damaged Equipment. Lessor expressly reserves the right to choose the repair method and venue, within reasonable market value terms. Lessee and Lessor agree to be bound, legally and otherwise, by the report of Lessor’s chosen repair venue as to the cause of the damage to the Equipment.
In the unlikely event that the Equipment appears damaged when Lessee receives Equipment via shipment contractor, Lessee must notify Lessor immediately within twenty-four hours of receiving the shipment.
In the event of default, or a lost or unreturned item, Lessor reserves the right to pursue civil and criminal remedies against Lessee, including, but not limited to, taking immediate possession of the Equipment; obtaining, by Lessee’s credit card or otherwise, from Lessee the cost of the full retail price of a comparable substitute of Equipment and late fees assessed prior to deeming the Lessee in default or the Equipment lost or unreturned; notifying a collections agency, which immediately results in additional attorneys’ and collection fees being charged to Lessor; filing of criminal charges; employing “skip tracer,” private investigator, or repossession agency to collect the Equipment or goods sufficient to repay the value of the Equipment; and/or pursue any and all legal remedies against Lessee. These remedies are not exclusive. In the event of litigation to recover any such damages, Lessee is held responsible for all legal fees and costs incurred by Lessor.
Lessor is deemed to be in “default” if for any reason payment to Lessee is not delivered, is disputed, or is otherwise interrupted.
Equipment is deemed to be “lost” or “unreturned” when Lessee has failed to ship leased Equipment to Lessor within seven (7) days of expiration of the lease term. If Lessee returns Equipment, in undamaged state, to Lessor within thirty (30) days of expiration of the lease term, the charge to Lessee’s credit card for the price of a comparable substitute will be refunded to Lessee by Lessor and a late fee will be charged to Lessee’s credit card. Late returns are subject to a fee of twice the prorated per day lease charge at time of the lease per day. Returning an item late without notifying us first may cause Loss of Use fees to be applied in addition to the late fees. The amount of the Loss of Use fees will be calculated on a case-by-case basis.
OUT-OF-STOCK PRODUCTS AND MULTIPLE PRODUCT ORDERS.
Lessor will ship product as it becomes available. There may be times when the product Lessee ordered is out-of-stock which will delay fulfilling Lessee’s Order. Lessor makes no guarantees as to availability of Equipment. Any estimate of availability provided by Lessor is based on the assumption that each customer returns Equipment within prescribed term period. Lessor will keep Lessee informed of any products that Lessee has ordered that are out-of-stock and unavailable for immediate shipment. Lessee may cancel the Order at any time prior to shipping.
For a multiple product order, Lessor will make every attempt to ship all products contained in the Order at the same time. Products that are unavailable at the time of shipping will be shipped as they become available, unless Lessee notifies Lessor of their alternate wishes to this end. Lessee will only be charged for products contained in a given shipment, plus any applicable shipping charges. Lessee will only be charged for shipping at the rate quoted on Lessee’s Order. The entirety of this shipping charge may be applied to the first product(s) shipped on a multiple shipment order.
SURRENDER.
Upon the expiration or earlier termination of this Lease, Lessee shall return the Equipment to Lessor in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted, by delivering the Equipment at Lessee’s cost and expense via the shipping method of Lessor’s choice. Ordinary wear and tear is to be determined at the discretion of Lessor within the confines of the reasonably common and ordinary meanings of those terms. Lessee will be responsible for proper packaging of the return shipment using shipping and packaging materials as provided by Lessor in the order shipment. Prior to returning Equipment, it is Lessee’s responsibility to read and comply with Lessor’s Equipment return procedures posted on Lessor’s website.
Lessor’s acceptance of the Equipment upon return by Lessee shall not represent Lessor’s determination as to condition of Equipment upon return. Lessor reserves the right to accept Equipment upon return by Lessee and make determinations regarding the condition of the Equipment within a reasonable amount of time. Lessor’s determination as to the condition of the Equipment upon return by Lessee is binding under this Section and Section “Lost, Damaged, or Unreturned Equipment”.
TAXES.
Lessee shall keep the equipment free and clear of all levies, liens and encumbrances. Lessee, or Lessor at Lessee’s expense, shall report, pay and discharge when due all license and registration fees, assessments, sales, use and property taxes, gross receipts, taxes arising out of receipts from use or operation of the Equipment, and other taxes, fees and governmental charges similar or dissimilar to the foregoing, together with any penalties or interest thereon, imposed by any state, federal or local government or any agency, or department thereof, upon the Equipment or the purchase, use, operation or leasing of the Equipment or otherwise in any manner with respect thereto and whether or not the same shall be assessed against or in the name of Lessor or Lessee. However, Lessee shall not be required to pay or discharge any such tax or assessment so long as it shall, in good faith and by appropriate legal proceedings, contest the validity thereof in any reasonable manner which will not affect or endanger the title and interest of Lessor to the Equipment; provided, Lessee shall reimburse Lessor for any damages or expenses resulting from such failure to pay or discharge.
LIMITATION OF LIABILITY.
THE CONTENTS OF THE LESSOR’S WEBSITE, AND THE EQUIPMENT LESSOR DELIVERS ARE PROVIDED “AS IS.” LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT EQUIPMENT’S ACCURACY OR FUNCTIONALITY. LESSOR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE LESSOR’S WEBSITE, FOR ANY FAILURES, DELAYS, OR INTERRUPTIONS IN THE DELIVERY OF EQUIPMENT, FOR ANY LOSSES OR DAMAGES ARISING FROM THE USE OF THE EQUIPMENT. TO THE FULL EXTENT PERMISSIBLE BY LAW, LESSOR DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES ABOUT THE EQUIPMENT LESSOR DELIVERS, INCLUDING, FOR EXAMPLE, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, LESSOR DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE VIA THE LESSOR’S WEBSITE IS ACCURATE, COMPLETE, OR CURRENT. PRICE AND AVAILABILITY INFORMATION IS SUBJECT TO CHANGE WITHOUT NOTICE.
IN NO EVENT SHALL LESSOR BE LIABLE TO LESSEE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY EQUIPMENT OR THE INFORMATION ON LESSOR’S WEBSITE. WHILE LESSOR WILL MAKE A REASONABLE EFFORT TO RETURN ANY NON-LESSOR PROPERTY IT RECEIVES, LESSOR WILL NOT BE LIABLE FOR ANY LOSSES OF OR DAMAGE TO SUCH PROPERTY. THE LIABILITY OF LESSOR UNDER THIS LEASE SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY LESSEE TO LESSOR FOR THE EQUIPMENT.
INDEMNITY.
Lessee shall indemnify and save harmless Lessor against all loss, damage, expense and penalty, including reasonable attorneys’ fees, arising from, related to, or connected with any action on account of any injury to person or property of any character occasioned by the operation, handling or transportation of the leased Equipment during the term or while the Equipment is in the possession or control of Lessee.
DEFAULT.
If Lessee fails to observe, keep or perform any other provision of this Lease required to be observed, kept or performed by Lessee, Lessor shall have the right to exercise any one or more of the following remedies: (A) To declare the entire amount of payments hereunder immediately due and payable without notice or demand to Lessee, (B) To immediately take possession of Equipment without notice or demand to Lessee, (C) To sue for and recover all lease payments, and other payments, including lost lease income, then accrued or thereafter accruing, (D) To terminate this Lease, and (E) To pursue any other remedy at law or in equity. Notwithstanding any repossession or any other action which Lessor may take, Lessee shall be and remain liable for full performance of all obligations to be performed under this Lease. All of Lessor’s remedies are cumulative, and may be exercised concurrently or separately.
BANKRUPTCY.
Neither this Lease nor any interest therein is assignable or transferable by operation of law. If any proceeding under the Bankruptcy Act, as amended, is commenced by or against the Lessee, or if the Lessee is adjudged insolvent, or if Lessee makes any assignment for the benefit of his creditors, or if a writ of attachment or execution is levied on the Equipment and is not released or satisfied within ten (10) days thereafter, or if a receiver is appointed in any proceeding or action to which the Lessee is a party with authority to take possession or control of the Equipment, Lessor shall have and may exercise any one or more of the remedies set forth in Section “Surrender.” above; and this Lease shall, at the option of the Lessor, without notice, immediately terminate and shall not be treated as an asset of Lessee after the exercise of said option.
TYPOGRAPHICAL ERRORS.
In the event a product is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, Lessor shall have the right to refuse or cancel any Orders placed for product listed at the incorrect price. Lessor shall have the right to refuse or cancel any such Orders whether or not the Order has been confirmed and Lessee’s credit card charged. If Lessee’s credit card has already been charged for the purchase and Lessee’s Order is canceled, Lessor shall immediately issue a credit to Lessee’s credit card account in the amount of the incorrect price.
GOVERNING LAW; JURISDICTION.
This Lease shall be construed and enforced according to laws of the State of Washington. Lessee and Lessor agree that applicable federal and state courts located in Snohomish County, Washington, shall have exclusive jurisdiction over any dispute between Lessee and Lessor relating in any way to this Lease. These terms and conditions will supersede any terms and/or conditions Lessee includes with any purchase order, regardless of whether Lessor signs the purchase order or not.
MISCELLANEOUS.
If Lessor shall so request, Lessee shall execute and deliver to Lessor such documents as Lessor shall deem necessary or desirable for purposes of recording or filing to protect the interest of Lessor in the Equipment including, but not limited to a UCC financing statement. The failure of either party to enforce any provisions of this Lease shall not be deemed a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Lease. Lessor shall not be liable for any losses or damages resulting from causes beyond Lessor’s reasonable control. The acceptance of payments by Lessor does not waive Lessor’s right to enforce any provisions of this Lease. This instrument constitutes the entire agreement between the parties on the subject matter hereof and it shall not be amended, altered or changed except by a further writing signed by the parties hereto. If any portion of the agreement is found unenforceable, it will not affect the remainder of the agreement, which shall remain valid and enforceable. Lessee shall not assign this Lease or its interest in the Equipment without the prior written consent of Lessor. Headings used in this Lease are provided for convenience only and shall not be used to construe meaning or intent.
