ACTSOFT, INC. EQUIPMENT LEASE AGREEMENT TERMS AND CONDITIONS
Actsoft, Inc. (“Actsoft” or “we”) has agreed to provide the undersigned party (the “Licensee”) certain mobile management solutions (the “Services”), either directly or through Licensee’s cellular phone service provider. In conjunction with the Services, Licensee has requested that Actsoft provide Licensee certain equipment described below, and Actsoft has agreed to provide such equipment upon the terms and conditions of this Equipment Lease Agreement (the “Agreement”):
- Equipment Use, Title. Actsoft agrees to lease to Licensee the equipment detailed on the signature page or on an exhibit to this Agreement (the “Equipment”). Except as otherwise provided in this Agreement, title to the Equipment is and will remain vested in Actsoft, and Licensee will not acquire any title or ownership interest in the Equipment. Licensee agrees that it will not permit any lien, encumbrance or security interest to attach to the Equipment.
- Lease Payment. The lease payment for Licensee’s lease of the Equipment is included in the license fees paid by Licensee for the Services, and there will be no additional payments required except as specifically set forth in this Agreement.
- Delivery and Shipping. Actsoft will schedule delivery in accordance with its standard lead time unless Actsoft agrees in writing to an accelerated delivery date. Licensee is responsible for all shipping, insurance and customs charges related to delivery of the Equipment, payable in advance through debit or credit card.
- Acceptance. All Equipment will be presumed accepted by Licensee unless Actsoft receives written a notice of rejection explaining the basis for rejection within three (3) business days of delivery. Actsoft will have a reasonable opportunity to repair or replace rejected Equipment, at its option. Actsoft assumes shipping costs in an amount not to exceed normal ground shipping charges to Actsoft’s designated facility for the return of properly rejected Equipment. If Actsoft reasonably determines that rejection was improper, Licensee will pay all expenses caused by the improper rejection.
- Limited Warranty. Actsoft warrants that the Equipment will be free of defects in materials and workmanship, and will perform in accordance with the Equipment manufacturer’s stated specifications for the length of the original term of the contract following delivery. Actsoft makes no other warranties as to the Equipment, express or implied, including but not limited to the warranties of merchantability or fitness for any particular purpose. This warranty does not cover damage to the Equipment resulting from Licensee’s negligence, abuse or misuse of the Equipment. Actsoft disclaims any liability whatsoever for loss, damage, or injury to Licensee or third parties as a result of any defects, latent or otherwise, in the Equipment.
- Risk of Loss. Commencing on the date Equipment is delivered to Licensee and continuing until Licensee has returned Equipment to Actsoft or Actsoft has conveyed title to the Equipment to Licensee in accordance with this Agreement, Licensee is responsible for all loss or damage to the Equipment at Actsoft’s then current catalog prices for the Equipment.
- Service Terms. Licensee agrees that its use of the Services will be solely for lawful purposes, and by its use of the Services, Licensee consents to Actsoft and Licensee’s cellular carrier collecting and using information regarding the location of the Equipment in order to deliver the Services. Actsoft does not guarantee the accuracy or completeness of any information, including location information generated by the Service. LICENSEE ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED “AS IS”, AND THAT ACTSOFT MAKES NO WARRANTY REGARDING THE SERVICES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTIBILTY OR FITNESS FOR A PARTICULAR PURPOSE. The licensee is encouraged to use caution when displaying and disclosing personally identifiable information to others, including physical location information. Users of the Services should never attempt to enter or change information while driving. The Services may be interrupted or disrupted at any time due to atmospheric conditions and other factors associated with the use of satellites and satellite data. Location-based services may require the use of certain handsets. Internet access is required for use of the Services and airtime
charges do apply.
- Taxes. The licensee is responsible for all taxes, duties, and charges resulting from Licensee’s rental or use of the Equipment and Services. If Actsoft is required to impose, levy, collect, withhold or assess any such taxes, duties or charges on any transaction under this Agreement, then Actsoft will invoice Licensee for such taxes, duties, and charges unless Licensee furnishes Actsoft with an exemption certificate or other documentation sufficient to verify exemption from such taxes, duties or charges. If any taxes are required to be withheld from amounts paid or payable to Actsoft under this Agreement, Licensee will withhold the required amount of taxes and pay such taxes on behalf of Actsoft to the relevant taxing authority in accordance with applicable law, and Licensee will forward proof of such withholding sufficient to establish the withholding amount and recipient to Actsoft within 60 days of payment. In no event will Actsoft be liable for taxes paid or payable by Licensee.
- DISCLAIMER. IN NO EVENT WILL ACTSOFT BE LIABLE FOR ANY INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INDIRECT DAMAGES, LOSS OF PROFITS, LOSS OF REVENUES, OR
LOSS OF USE, ARISING FROM LICENSEE’S USE OF THE EQUIPMENT OR THE SERVICES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. ACTSOFT’S LIABILITY FOR DAMAGES ARISING OUT OF OR
RELATED TO USE OF THE EQUIPMENT OR THE SERVICES IS LIMITED TO THE GREATER OF CHARGES PAID BY LICENSEE TO ACTSOFT FOR LEASE OF THE EQUIPMENT OR USE OF THE SERVICES, OR ONE
THOUSAND DOLLARS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT,
WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BY OPERATION OF LAW, OR OTHERWISE.
- Export Restrictions. The licensee is responsible for compliance with all import and export control laws and regulations. Licensee will obtain, at its sole expense, all import, export, and re‐export approvals and licenses required for Equipment delivered and will retain documentation evidencing compliance with those laws and regulations. Actsoft will not be liable to Licensee for any failure to provide Equipment as a result of government actions that impact Actsoft’s ability to perform.
- Term and Termination. This Agreement and Licensee’s right of possession and use of Equipment will continue as long as Licensee is receiving and paying for the Services, and will terminate
automatically upon termination of the License Agreement for any reason. In addition, either party may terminate this Agreement by giving written notice to the other in the event (a) the other party materially breaches this Agreement and does not remedy the breach within 30 calendar days after receipt of written notice that specifies the grounds for the material breach; (b) the other party fails to make any required payment to be made under this Agreement when due and fails to remedy the breach within ten (10) calendar days after receipt of written notice of non‐payment; or (c) any insolvency or suspension of the other party’s operations or a petition is filed or proceeding made by or against the other party under any state, federal or other applicable law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors or other similar proceedings.
- Return of Equipment upon Termination. In the event that this Agreement is terminated for any reason prior to Licensee paying for the Services for the full term of the Agreement, Licensee will, at its expense and within five (5) calendar days of termination, return the Equipment in good operating condition to the Actsoft address referenced below. If the termination occurs in the first year of the Agreement, Actsoft will charge a $100 per device restocking fee. If the termination occurs after the first year of the Agreement but before the end of the term, Actsoft will charge a $50 per device restocking fee. For purposes of clarity, any termination following Licensee’s payment for Services for the full term will not require Licensee’s return of the Equipment, and Licensee will automatically be assigned title to the Equipment without any further action of Actsoft or Licensee. If upon an early termination the Equipment is not returned to Actsoft in good operating condition as required above, Licensee will be invoiced $175 per device for the Equipment, and Licensee agrees to pay such invoice within 30 days of invoice date, in U.S. currency and directed to the remittance address on the invoice. Actsoft may charge interest on delinquent amounts at a rate of 1.5% per month or the maximum rate permitted by law, if lower, for each month or part thereof, recover all costs of collection including, without limitation, reasonable attorneys’ fees. These remedies are in addition to all other remedies available to Actsoft at law or in equity.
- Miscellaneous Provisions. This Agreement shall be binding upon and shall be for the benefit of Actsoft and Licensee, and each of their respective legal representatives, successors, and permitted assigns; provided, that Licensee may not assign, sublicense, or delegate this Agreement, in whole or in part, without Actsoft’s prior written consent. This Agreement is governed by and construed in accordance with the laws of the State of Florida, and the parties agree that the exclusive venue for any legal action related to this Agreement will be the state and federal courts of Hillsborough County, Florida. If any litigation is commenced by either party concerning the terms of this Agreement, the party which substantially prevails in such litigation will be entitled to a judgment against the other party for the costs of such litigation, including court costs and reasonable attorneys’ fees. No waiver by a party of any breach or default by the other party of any provision of this Agreement, or failure by a party to exercise in any respect any right or remedy provided in this Agreement shall be deemed to be a waiver of any other breach or default, nor of any other right or remedy, of the same or other nature. If any provision of this Agreement is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability. Any demand, notice, or other communication required or permitted hereunder shall be effective if in writing and either (i) hand‐ delivered to the addressee, or (ii) deposited in the mail (registered or certified) or delivered to a private express company addressed as follows: (a) if to Actsoft, at the address set forth in “Contact Us” section of its website, Actsoft.com; or (b) if to Licensee, at the address set forth on the signature page of this Agreement. Either party may change its notice address by providing the other party with notice of the change. E‐mail notification with confirmation by the other party may be accepted by either party at its option as notification, but e‐mailing such notice shall not by itself constitute notice under this subsection.