By leasing traffic video equipment (“Equipment”) from StreetLogic Pro, Inc., a Minnesota corporation (“Lessor”), the lessee of such Equipment (“Lessee”, and collectively with Lessor, the “Parties”) agrees to the following terms (“Terms”).
1. LEASE AND USE OF EQUIPMENT
1.1 Lease. On the terms and subject to the conditions hereof, Lessee shall to lease from Lessor, the Equipment.
1.2 Title. Lessor has and shall maintain sole title to and ownership of the Equipment at all times. Lessee acquires no ownership, title, property, right, equity or interest in the Equipment other than its leasehold interest solely as lessee. Lessor has the sole right, subject to the terms of this Lease and the license described above, to re-lease or sell the Equipment.
1.3 Use. Lessee shall use the Equipment only for lawful business or civic purposes, and for no other purpose whatsoever without the prior written consent of Lessor.
1.4 Delivery and Acceptance. Shipment of Equipment by Lessor to Lessee is conditioned upon payment to Lessor of the first month’s monthly fee pursuant to Section 3.1 below and the Deposit set forth in Section 3.3 below. Acceptance of the Equipment by Lessee shall be deemed to have occurred upon delivery of the Equipment to Lessee, provided Lessee does not reject the Equipment within three (3) business days of its receipt of the Equipment. as of the Effective Date. Acceptance of the Equipment by Lessee shall constitute an acknowledgement that: (a) the Equipment is in good order and condition; and (b) Lessor has made no representation or warranty, express or implied with respect to the Equipment.
1.5 Lessor is Tax Owner. Lessor is entitled to all deductions, credits, and other tax benefits to which an owner of property is entitled (“Tax Benefits”). Lessee shall not take or omit to take any action that results in the disqualification of the Equipment for, or recapture of, all or any portion of the Tax Benefits.
2. LEASE TERM.
2.1 Term. The lease term (“Lease Term”) for the Equipment shall commence as of acceptance (or deemed acceptance) pursuant to Section 1.4 hereof and shall continue until earlier terminated pursuant to Section 2.2 hereof.
2.2 Termination. Either party may terminate the lease of the Equipment without penalty upon giving the other party thirty (30) days’ prior written notice. Lessor shall have the right to immediately terminate the lease effective on notice to Lessee if (a) Lessor has reasonable cause to believe that Lessee is not using the Equipment in compliance with law and/or these Terms; (b) Lessee breaches any of the provisions of these Terms; or (c) for cause as otherwise determined by Lessor in its sole discretion. At the end of the Lease Term, the Equipment shall be returned by Lessee to a location directed by Lessor and the Equipment shall be returned in a condition substantially the same or better as the condition of the Equipment on the commencement of the lease contemplated hereunder. If the Equipment is not so returned, Lessee shall be responsible for the full cost of the Equipment, less the Security Deposit, which shall be applied to reduce said cost.
3. RENT
3.1 Rent. For so long as Lessee continues to use the Equipment in accordance with these Terms, including Section 1.3 hereof, Lessor shall rent the Equipment to Lessee for a monthly fee, the first installment of which shall be payable prior to Lessor becoming obligated to ship the Equipment and future installments of which shall be payable on each monthly anniversary of the date Lessee accepts (or is deemed pursuant to Section 1.4 hereof to have accepted) the Equipment.
3.2 Late Charge. Any rent not paid on the date when due hereunder shall accrue interest from the date the same is due until the same is paid in full at a rate of six percent (6%) per annum.
3.3 Security Deposit. Lessee shall pay to Lessor, prior to Lessor becoming obligated to ship the Equipment to Lessee, a deposit equal to Five Hundred U.S. Dollars (USD $500.00), which deposit shall be held by Lessor as security for the timely payment by Lessee of rent and the performance by Lessee of these Terms.
4. EXCLUSION OF WARRANTIES
4.1 EXCEPT FOR THE WARRANTIES AND RETURN AND REFUND POLICY EXPRESSLY SET FORTH IN LESSOR’S TERMS AND CONDITIONS, LESSOR MAKES NO WARRANTY WHATSOEVER REGARDING THE EQUIPMENT AND LESSEE ACCEPTS IT AS IS/WHERE IS AND WITH ALL FAULTS. LESSOR SPECIFICALLY MAKES NO WARRANTIES AND DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INTERFERENCES.
Lessee represents and warrants to Lessor as of the Effective Date that:
5.1 Organization and Qualification of Lessee. Lessee, if an entity:
(a) is a duly organized, validly existing, and in good standing under the laws of the state of its organization.
(b) has full corporate power and authority to lease the Equipment and to carry out its obligations pursuant to said lease, including as set forth in these Terms.
5.2 These Terms constitute a legal, valid and binding obligation of Lessee enforceable against Lessee in accordance with the terms hereof.
5.3 All permits and licenses required for Lessee’s lease, installation and use the Equipment have been (or will, prior to the use of the Equipment, be) obtained by Lessee and are valid and in full force and effect and will be throughout the Lease Term. All fees and charges with respect to such permits as of the Effective Date 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 required permit or license.
6. LESSEE’S COVENANTS
Lessee agrees that until all of its obligations hereunder have been performed in full, Lessee shall comply with the following covenants.
6.1 Compliance with Laws. Lessee shall comply with all laws, rules, or regulations applicable to its lease or use of the Equipment at all times.
6.2 Permits. Lessee shall maintain in full force and effect all permits required for Lessee to lease and use the Equipment.
6.3 Taxes. Lessee shall pay, and indemnify and hold Lessor harmless from, all assessments, license fees, and sales, use, property, excise, and other taxes and charges (other than federal income taxes imposed on or measured by net income (however denominated)) imposed on or with respect to (a) the Equipment arising out of or in connection with its lease, possession, use, or operation during the Lease Term, or (b) these Terms or the consummation of the transactions contemplated herein.
6.4 Liens. Lessee shall keep the Equipment free and clear of all liens.
6.5 Subleases. Lessee shall not enter into any sublease of the Equipment or permit the use of the Equipment by any third party without the prior written consent of Lessor. Any purported sublease without the Lessor’s prior written consent shall be void ab initio. Lessee shall pay to Lessor all consideration received in connection with any sublease of the Equipment.
6.6 Records. Lessee, at its own expense shall:
(a) Maintain all records, logs, and other materials (“Records”) in a manner no less comprehensive or accurate than Lessee’s normal customary practices with respect to Lessee’s similar equipment and as required by law; and
(b) promptly furnish to Lessor such Records as may be required to enable Lessor to file any ownership or other reports required to be filed by Lessor with any governmental authority or as may otherwise be requested by Lessor.
6.7 Inspection. Lessee shall permit Lessor (through any of its officers, employees, or agents) on reasonable notice to inspect the Equipment and its Records during regular business hours, and in compliance with Lessee’s reasonable security procedures.
6.8 Lessor’s Temporary Repossession of the Equipment. Lessee acknowledges that Lessor reserves the right to temporarily repossess the Equipment at Lessor’s discretion; provided that (i) Lessor shall notify Lessee in writing two (2) days prior to Lessor’s temporary repossession of the Equipment, and (ii) Lessor shall not temporarily repossess the Equipment at or during a time that would substantially disrupt Lessee’s farming business. Lessor shall indicate the duration of repossession in Lessor’s notice to Lessee. Upon Lessee’s receipt of Lessor’s notice, Lessee shall immediately inform Lessor whether Lessor’s temporarily repossession would substantially disrupt Lessee’s business. Notwithstanding anything else herein, Lessee’s obligations to pay rent and responsibilities for the Equipment under these Terms shall be tolled during the period of Lessor’s temporary repossession.
7. MAINTENANCE AND UPGRADES
7.1 Maintenance in General. Lessee, at its own expense (subject to any express obligations of Lessor under Lessor’s Terms and Conditions), shall maintain, service, repair, and keep the Equipment: (a) in the same condition as when delivered, ordinary wear and tear excepted; (b) in compliance with Lessor’s maintenance requirements; and (c) in compliance with law. Lessee shall, at its own expense, install any alteration, modification, addition, and upgrade to the Equipment that is required or supplied by Lessor. Without Lessor’s prior written consent, Lessee shall not engage a party other than Lessor to maintain, alter, service or repair the Equipment.
7.2 Replacement of Parts. Unless otherwise agreed to in writing by the Parties, if any part of the Equipment becomes lost, stolen, damaged beyond repair, or otherwise permanently rendered unfit for use, Lessee, at its own expense, shall promptly pay Lessor for the replacement of the Equipment or replacement part(s) thereof so that, after the replacement, the Equipment shall be in as good an operating condition as, and have a value, remaining useful life and utility at least equal to the value, remaining useful life and utility of the Equipment before the replacement.
8. LOSS
8.1 Risk of Loss. While the Equipment is leased hereunder, Lessee shall bear all risk of loss, damage, destruction, theft and condemnation to or of the Equipment from any cause whatsoever. Lessee shall notify Lessor as promptly as practicable of such damage or loss.
9. INSURANCE
9.1 Property Insurance. Lessee, at its own expense, shall provide and maintain for the Equipment insurance against loss, theft, and damage (“Property Insurance”) in:
(a) full replacement value of the Equipment; and
(b) a form, and with a company or companies, satisfactory to Lessor, including, without limitation, the insurer’s agreement to give Lessor thirty (30) days’ prior written notice before cancellation or material change thereof.
Lessee shall name Lessor (or shall cause Lessor to be named) as loss payee on the Property Insurance.
9.2 Liability Insurance. Lessee, at its own expense, shall provide and maintain comprehensive general liability insurance, which shall include claims for damages resulting from bodily injury, including wrongful death, and property damage which may arise from leasing the Equipment pursuant to these Terms, whether such operations are by Lessee or by any subcontractor or anyone directly or indirectly employed by either Lessee or such subcontractor, or otherwise caused by natural disaster or acts of God (“Liability Insurance”), in:
(a) an amount no less than $1,000,000 per occurrence, and $2,000,000 in the aggregate; and
(b) a form, and with a company or companies satisfactory to Lessor, including without limitation, the insurer’s agreement to give Lessor thirty (30) days’ prior written notice before cancellation or material change thereof.
Lessee shall name Lessor as an additional insured (but without imposing on Lessor any liability to pay the premiums for such insurance) under such policy. Lessee shall advise its insurance carrier of its use of the Equipment pursuant to these Terms and obtain any endorsement required to ensure that the Liability Insurance extends to coverage of Lessee’s use of the Equipment. Lessee shall name Lessor as an additional insured (but without imposing on Lessor any liability to pay the premiums for such insurance) under the policies described above. Lessee shall use its best efforts to have its insurance carrier waive any right to subrogation against Lessor. No later than five (5) days following payment by Lessee of the Security Deposit, Lessee shall furnish to Lessor evidence showing compliance with the insurance requirements provided in this Section 9.2.
10. INDEMNITY
10.1 Indemnity. Lessee shall indemnify, defend, and hold harmless Lessor and its affiliates, subsidiaries, and parent entity and their respective representatives (collectively, “Indemnitees”) against any and all damages relating to any claim allegedly or actually arising out of or relating to:
(a) the lease, sublease, possession, maintenance, use, condition, repair (other than by Lessor), return, disposition, or operation of the Equipment;
(b) any inaccuracy in or breach of any of the representations of Lessee contained herein; or
(c) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Lessee pursuant to these Terms.
Lessee’s obligation to indemnify and hold harmless does not extend to any damages that arise solely out of the gross negligence or willful misconduct of Lessor.
11. MISCELLANEOUS
11.1 Notices. Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications to the other (each, a “Notice”) in writing and addressed to the Lessor at 5301 Edina Industrial Blvd. Ste. 4, Edina, MN 55439 or sales@streetlogic.pro and to Lessee at its delivery address or the email address used to order the Equipment (or to such other address that the receiving party may designate from time to time by Notice in accordance with this section). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email of a PDF document (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
11.2 Entire Agreement. These Terms and the Terms and Conditions of Lessor constitute the sole and entire agreement of Lessor and Lessee with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
11.3 Amendment and Modification. No amendment to these Terms is effective unless in writing and signed by an authorized representative of each of Lessor and Lessee.
11.4 Cumulative Remedies. All rights and remedies provided in these Terms are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
11.5 Assignment. Lessee may not assign any of its rights under these Terms without the prior written consent of Lessor. Any purported assignment without the Lessor’s prior written consent shall be void ab initio. Lessee shall pay to Lessor all consideration received in connection with any assignment of the Equipment.
11.6 Successors and Assigns. These Terms are binding on and inures to the benefit of Lessor and Lessee and their respective successors and assigns.
11.7 Governing Law. These Terms and all matters arising out of or relating to these Terms, are governed by, and construed in accordance with, the laws of the State of Minnesota, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State. Any action, litigation, claim, dispute, or proceeding relating in any way, either directly or indirectly, to these Terms shall be brought exclusively in the state courts of Hennepin County, Minnesota. Both parties submit to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the federal or state courts therein. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
11.8 Attorneys' Fees. If any action or proceeding is brought to construe or enforce the provisions of these Terms, or the application or validity thereof, then the party prevailing in such action shall be entitled to recover reasonable attorneys' fees and other court costs, together with any costs and attorneys' fees incurred in enforcing any judgment entered therein..
11.9 Severability. If any provision of these Terms or the application of such provision to any person or circumstance shall be held invalid, the remainder of these Terms or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby.