Lessor (TECHNOLOGY FITNESS LLC) and Lessee (SEE SING UP FORM FOR LESSEE’S FULL INFORMATION) may each be individually referred to herein as a “Party” and collectively as the “Parties.”
WHEREAS, Lessor is the owner of certain Equipment described in Exhibit A of this Agreement; and WHEREAS, Lessee desires to lease the Equipment from Lessor and Lessor agrees to lease the Equipment to Lessee under the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants contained in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Equipment. Lessor hereby leases to Lessee and Lessee hereby leases from Lessor
that certain equipment (the “Equipment”) as fully described in Exhibit A, which is attached
hereto and incorporated herein by reference. Lessee specifically acknowledges that the Equipment
is leased to Lessee solely for commercial or business purposes and not for personal, family, or
2. Term. This Agreement shall be for the term established above (12, 18 or 24 months, selected by the Lessee), which shall commence on the Effective Date and shall, unless terminated earlier as provided in this Agreement, terminate on the “Term” chosen by the Lessee.
3. Lease Payment; As rent for the Equipment, Lessee shall pay to Lessor the chosen monthly fee depending on the Term (“Lease Amount”). Additionally, the sum of Two Thousand Five Hundred and No/100 Dollars ($2,500.00) shall be paid on the Effective Date as an Advance. The remainder of the Lease Amount shall be payable in equal monthly installments for a period of either 12, 18 or 24 months (collectively the “Lease Payments”). The first Lease Payment shall become due and payable on the same day of the advance, upon signing up for this agreement. Each subsequent Lease Payment shall be due on the same day of the month as the first installment, of each month thereafter. Lease Payments shall be made to Lessor at the address set forth above or such other address as Lessor directs in writing, or through recurring credit card online payment.
4. Insurance; Risk of Loss. Lessee hereby acknowledges and agrees that its assumption of loss of the Equipment shall attach upon the earlier of (i) Lessee’s receipt of the Equipment, or (ii) upon Lessor’s delivery of the Equipment to a common carrier for transporting to Lessee with shipping insurance at a declared value of Fifteen Thousand an No/100 Dollars ($15,000.00). The Lease Amount does not include shipping and handling for the Equipment. Lessee shall be responsible for the cost of shipping and handling for the Equipment, including shipping insurance. Lessee shall, at its sole expense, obtain and maintain throughout the Term general commercial liability insurance against claims for bodily injury, death and property damage with limits of not less than One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) general aggregate, to cover such liability caused by, or arising out of activities of the Lessee and/or Lessee’s employees with respect to the Equipment. All such certificates evidencing such insurance shall name Lessor as an additional insured.
5. Taxes. Lessee shall pay all sales, use, excise, personal property or other taxes (excepting state and federal income taxes and other taxes upon the “net income” of Lessor for lease of the Equipment) that may be imposed on either Party as a result of this Agreement.
6. Maintenance. Throughout the Term, Lessee shall provide for the service, repair and maintenance of the Equipment, at Lessee’s sole expense, so as to keep the Equipment in as good condition, repair, appearance and working order as when delivered to Lessee hereunder, ordinary wear and tear excepted. Lessee shall, at Lessee’s sole expense, replace any and all parts and devices which may from time to time become worn out, lost, stolen, destroyed, damaged beyond repair, or rendered unfit for use for any reason whatsoever. All such replacement parts, mechanisms, and devices shall be free and clear of liens, encumbrances, and rights of others and shall become the property of Lessor and shall be covered by this Agreement to the same extent as the Equipment originally covered by this Agreement.
7. Inspection of Equipment. Lessee shall allow Lessor or its agents to examine and
inspect the Equipment during normal business hours at Lessee’s address set forth above upon five
(5) business days’ notice to Lessee.
8. Use of Equipment. Lessee shall exercise due care in its operation, use and maintenance of the Equipment. Lessee shall not use, and shall not permit others to use, the Equipment in any manner that would contravene applicable laws, rules, regulations and other governmental directives, would violate the terms of any manufacturer’s or like warranty, or would contravene the manufacturer’s reasonable operational standards for the Equipment. If Lessor notifies Lessee of any additional operational standards, Lessee shall adhere, and shall cause others using the Equipment under this Agreement to adhere, to such standards in the operation of the Equipment. Lessee shall not alter or modify the Equipment without the prior written consent of Lessor. Lessee agrees that only qualified employees of Lessee shall operate the Equipment.
9. Default; Remedies. If (a) Lessee shall default in the payment of any Lease Payment or in making any other payment hereunder when due and such default shall continue for five (5) days, (b) Lessee shall default in the performance of any other covenant or breach any obligation herein, (c) Lessee becomes insolvent or makes an assignment for the benefit of creditors, (d) Lessee applies for or consents to the appointment of a receiver, trustee, or liquidator of Lessee or of all or a substantial part of the assets of Lessee under any applicable law, or (e) Lessor has a good faith belief that Lessee is not using the Equipment in a safe and proper manner or in compliance with Section 8 hereof, Lessor shall have the right to exercise any one or more of the following remedies which are cumulative and may be exercised concurrently or separately: (i) To declare the entire amount of the Lease Amount hereunder immediately due and payable without notice or demand to Lessee; (ii) To sue for and recover all payments, then accrued or thereafter accruing, pursuant
to this Agreement; (iii) To take possession of the Equipment without demand, notice, or legal process, wherever the Equipment may be located. Lessee hereby waives any and all damages occasioned by such taking of possession; (iv) To disable the operation of the Equipment, remotely or otherwise; (v) To terminate this Agreement; (vi) To sell, lease or otherwise dispose of the Equipment and collect any deficiency balance with or without resorting to legal process; and (vii) To pursue any other remedy at law or in equity.
10. Return of Equipment; Option to Purchase. Upon expiration of this Agreement, and only if Lessee has timely and fully performed all of its obligations pursuant to this Agreement, Lessee may elect to purchase the Equipment from Lessor for One and No/100 Dollars ($1.00). If Lessee decides not to purchase the Equipment upon expiration of this Agreement, or if this Agreement is terminated pursuant to its terms, Lessee, at its sole cost and expense, shall promptly deliver the Equipment to Lessor at the address designated by Lessor. Lessee shall be liable to Lessor for the fair market value of the Equipment, determined as of the date of this Agreement, unless Lessee shall return the Equipment to Lessor within five (5) business days after the expiration or termination of this Agreement, in good working order, reasonable wear and tear excepted.
Lessee shall be responsible for any damage to the Equipment in shipping the Equipment back to
Lessor. In the event the Lessor provides shipping instructions to Lessee, Lessee shall comply with
such shipping instructions.
11. Damage. Lessee shall be solely responsible for any loss of or damage to the Equipment from any cause at all, whether or not insured, from the Effective Date. If the Equipment is lost, stolen or damaged, Lessee shall promptly notify Lessor. In no event shall such theft, loss, or damage relieve Lessee of its obligations under this Agreement.
12. Financing Statements and Other Documents. Lessor shall be authorized to execute and file any financing statements describing the Equipment, as well as extensions, renewals and amendments of financing statements pursuant to the Uniform Commercial Code.
13. Indemnification. Lessee shall defend, indemnify and hold harmless Lessor and each of Lessor’s members, managers, officers, agents, employees, and affiliates, together with any of their respective successors and assigns (collectively the “Lessor Indemnitees”) and shall reimburse the Lessor Indemnitees for, from and against each and every demand, claim, loss, shortage, liability, judgment, damage, cost and expense (including without limitation interest, penalties, costs of preparation and investigation, and the reasonable fees, disbursements and expenses of attorneys, accountants and other professional advisors), whether known or unknown, whether fixed or contingent, and whether accrued or unaccrued (collectively “Losses”) imposed on or incurred by Lessor Indemnitees, directly or indirectly, relating to, resulting from or arising out of (i) any inaccuracy in any representation or warranty (whether or not Lessor Indemnitees relied thereon or had knowledge thereof) contained in, or any breach or nonfulfillment of any representation, covenant, agreement or other obligation of Lessee under this Agreement, including any Exhibit hereto; or (ii) the leasing, possession, operation or use of the Equipment.
14. Authority; Binding Effect. Lessee represents and warrants and covenants the following to be true on the Effective Date of this Agreement: (a) Lessee has all requisite power and authority to execute and deliver this Agreement; And (b) Any documents or instruments referenced herein and has taken all action required to be taken by or on the part of Lessee to authorize the execution, delivery, and performance of this Agreement.
15. DISCLAIMER OF WARRANTIES. LESSOR EXPRESSLY DISCLAIMS, WAIVES, RELEASES, AND RENOUNCES ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, with exception of the device’s manufacturer warranty.
16. Recitals; Interpretation. The recitals to this Agreement are hereby incorporated by reference into the Agreement for all purposes. For purposes of this Agreement: (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
17. Entire Agreement. This Agreement, including the Exhibit to this Agreement, constitute the sole and entire agreement of the Parties with respect to the subject matter contained in this Agreement and in such Exhibits and supersede all prior and contemporaneous representations, warranties, negotiations, discussions, proposals, undertakings, understandings, covenants and agreements (including draft agreements (including non-final versions of this Agreement)), both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and the Exhibits, the statements in the body of this Agreement shall control.
18. Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19. Counterparts. This Agreement may be executed in one (1) or more counterparts, each of which shall be an original. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to an electronic mail message (any such delivery, an “Electronic Delivery”), shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.
20. Descriptive Headings. Descriptive headings contained herein are for convenience only and shall not control or affect the meaning or construction of any provisions of this Agreement.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective legal representatives, successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
22. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
23. Notices. All notices and communications shall be in writing and shall be delivered in person, mailed, postage prepaid, registered or certified, return receipt requested, or delivered by commercial overnight carrier, such as FedEx, addressed to the receiver of such notice at the address set forth above, or to any other address as may be specified in a notice duly given to the sender as provided hereunder.
24. Assignment. Lessee may not assign its rights or obligations under this Agreement without the prior written consent of Lessor. This Agreement shall be assignable by Lessor without the consent of Lessee.
25. Governing Law and Venue. (a) This Agreement, the negotiation, execution, terms and performance of this Agreement, the rights of the Parties under this Agreement, and all Actions arising, in whole or in part, under or in connection with or related to this Agreement or the transactions contemplated by this Agreement, shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Florida. (b) Any civil action or legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the courts of record of the State of Florida in Palm Beach County or the United States District Court, Southern District of Florida, West Palm Beach Division. Each Party irrevocably consents to the jurisdiction of such court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such court.
26. Binding Effect. This Agreement shall be binding upon the Parties hereto and their legal representatives, administrators, permitted assigns and successors.
27. Enforcement Costs; Attorney’s Fees. If any legal action (even if suit is not filed), civil action or other legal proceeding is brought for the enforcement of this Agreement, or, in whole or in part, because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing Party shall be entitled to recover its reasonable attorneys’ fees, court costs, and all expenses even if not taxable as court costs (including all such fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy and post judgment proceedings), incurred in that proceeding, in addition to any other relief which such Party or Parties may be entitled. Attorneys’ fees shall include paralegal fees, investigative fees, and administrative costs and all other reasonable charges billed by the attorney to the prevailing Party or Parties (including any fees and costs associated with collecting such amounts).
28. Construction. The Parties acknowledge that this is a negotiated agreement, and that in no event shall the terms of this Agreement be construed against any Party on the basis that such Party, or its counsel, drafted this Agreement.
29. WAIVER OF RIGHT TO JURY TRIAL. IN ANY CIVIL ACTION, COUNTERCLAIM, OR PROCEEDING, WHETHER AT LAW OR IN EQUITY, WHICH ARISES OUT OF, CONCERNS, OR RELATED TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, TRIAL SHALL BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT, AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THIS AGREEMENT OF THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. EACH PARTY HAS READ AND UNDERSTANDS THE EFFECT OF THIS SECTION 29.